App. Div.]

Lehigh Valley Railroad Company, Appel- | lant. Judgment and order reversed and new trial ordered, with costs to the appellant to abide event, upon the ground that the verdict is excessive, unless the plaintiff stipulates to reduce the verdict to $7,000, as of the date of the rendition thereof, in which event the judgment and order as thus modified are affirmed, without costs of this appeal to either All concurred, who voted for the except McLennan, Party. absolute reversal of the judgment and

order.

Margaret Lang v. John Lutz and Others.

Motion for leave to appeal to the Court of Appeals granted. The form of the order and questions to be certified to that court to be settled by and before Mr. Presiding Justice Adams upon two days' notice. Louisa Brown v. City of Fulton.- Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs. John Lahey v. Traders' Paper Company.Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs and disbursements.

In the Matter of Proving the Last Will and Testament of Lucinda W. Norton, Deceased. Emma Oley, as Executrix, etc., of Lucinda W. Norton, Deceased, Appellant; General M. Hammond and Others, Respondents.Decree of Surrogate's Court entered herein refusing probate reversed and a new trial of the material questions of fact arising upon the issues between the parties ordered to take place at the next Trial Term of the Supreme Court in Onondaga county, with costs to the appellant against the respondents personally to abide event. The form of the order to be settled by and before Mr. Justice Hiscock, on two days' notice. Held, that a review of the testimony presented does not satisfy this court that the conclusion of the learned surrogate that the testatrix was incompetent to make the will in question is in accordance with the preponderance of evidence. All concurred. In the Matter of the Application of Ida Graves Raymond, Respondent, for Trust Funds under the Will of Sarah A. Brewster, Deceased, Now on Deposit with the Rochester Trust & Safe Deposit Company. John Gorham, as Committee of the Person and Estate of Frederica Sturges, Appellant.- Decree of Surrogate's Court affirmed upon opinion of this court in same case, reported in 73 Appellate Division, 11, with costs and disbursements of both parties on this appeal to be paid out of the fund held by the trust company. All concurred.

Clara B. Myers, Respondent, v. Mary J. Hobson, Individually, etc., Appellant.- Judg. ment reversed and new trial ordered, with costs to the appellant to abide event upon questions of law only, the facts having been examined and no error found therein, upon authority of Mahaney v. Carr (175 N. Y. 454). All concurred.

Lucy A. Coleman and Others, Respondents, v. The Village of Castile, Appellant.- Judg ment affirmed, with costs. All concurred.

The People of the State of New York, Respondent, v. Battice Jackson, Appellant.- Judgment of conviction reversed and new trial ordered. Held, that we are not satisfied that the evidence in this case warranted the conviction of the defendant and we think the case should be submitted to another jury. All concurred, except McLennan and Williams, JJ., dissenting.

J. Emerson Hall, Respondent, v. Thomas T. Ballard, Appellant.- Judgment and order affirmed, with costs. All concurred, except williams, J., dissenting.

Kate Powell, as Administratrix, etc., of Jesse Powell, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Judgment and order affirmed, with costs. All concurred, except Adams, P. J., dissenting and Hiscock, J., not voting.

Alfred F. Cross, Appellant, v. Francis Curnan and Ernest Hochstadter, Respondents.Judgment affirmed, with costs. All con

curred.

John Wilson, Appellant, v. Dexter Sulphite Pulp and Paper Company, Respondent.Judgment affirmed, with costs. All concurred.

William Wazenski, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.- Plaintiff's exceptions overruled, motion for new trial denied and judgment ordered in favor of the defendant, with costs. All concurred. William D. Hurd, as Trustee in Bankruptcy of Henrietta W. Huey, Respondent, v. Milton V. Huey, Appellant.-Judgment affirmed, with costs. All concurred. Robert L. Utley, Appellant, v. John W. Webb, Respondent.-Judgment and order affirmed, with costs. All concurred, except Spring, J., dissenting.

Stella A. Barrett. Respondent, v. Frederick J. Baker and Another, Appellants.- Judgment and order affirmed, with costs. All concurred.

Morris Fox v. Warren Dix Hopkins.- Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs. Motion to amend decision denied.

In the Matter of the Final Judicial Settlement of the Accounts of Watson Turner, as Guardian of Earl M. Pinckney.-Motion granted and decision heretofore made and filed by this court in above-entitled matter amended by stating that the decree appealed from is reversed both upon questions of law and of fact, and also amended so as to state in detail the provisions of the decree to be entered by the Surrogate's Court of Herkimer county in accordance with the views and conclusions set forth in the opinion handed down by this court in the above-entitled matter, except that there be omitted any provision charging the above-named guardian with the sum of $665, received on sale of infant's real estate, with interest thereon, the same having been paid over under decree appealed from. The form of the order to be settled by and before Mr. Justice Hiscock upon two days' notice. All concurred.

JULY TERM, 1903.

of Kings on the 24th day of November, 1902, dismissing his complaint.

PER CURIAM: In this case the agreement signed by the defendants provided that they were to pay the plaintiff nothing for his services and disbursements in case of failure to obtain the abatements or recoveries men

tioned in the contract. In Stedwell v. Hart- | mann (74 App. Div. 126) the agreement expressly provided that everything that was done thereunder by plaintiff's testator was to be done at his own expense." This is the only apparent difference between the two cases, and is not, we think, sufficient to distinguish the case at bar from the Stedwell case. Inasmuch as the latter has been affirmed by the Court of Appeals on the opinion below (173 N. Y. 624), the opinion of Mr. Justice Patterson must be taken as settling the law, and is a controlling authority in this case for the affirmance of the judg ment. Present Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. Henry Euler, Appellant, v. Frederick Kappelmann, Respondent.-Judgment reversed and new trial granted, costs to abide the event. Appeal by the plaintiff from a judg ment dismissing the complaint at the close of the plaintiff's case, entered in the office of the clerk of the county of Queens on the 26th day of October, 1901 -

PER CURIAM: We think the judgment must be reversed because of the rejection by the learned trial court of the evidence of the surveyor Nostrand. Most of the excluded questions seem competent under the general rules of evidence. Many of them were admitted on the former trial over the appellant's objection and exception, and the judgment and order then entered unanimously affirmed. (Euler v. Kappelmann, 60 App. Div. 631.) The judgment should be reversed and a new trial granted, costs to abide the event. Present- Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ.

were

We

Albert C. Wakefield and Benjamin J. Sturges, as Copartners, Appellants, v. Charles G. Street, Respondent.-Judgment modified as indicated in opinion per curiam, and as modified affirmed, without costs of this appeal.- Appeal by the plaintiffs from a judg ment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 8th day of December, 1902, directing a dismissal of the complaint on the merits at the close of the evidence for the plaintiffs.-PER CURIAM: This is an action by real estate brokers to recover commissions for effecting a sale of property belonging to the defendant. At the close of the evidence in behalf of the plaintiffs, a motion to dismiss the complaint was made and granted. think that this disposition of the case was correct, inasmuch as the plaintiffs had failed to prove that they were the procuring cause of the sale. It was error, however, to render a judgment dismissing the complaint upon the merits. The New York Municipal Court Act provides that where the plaintiff does not prove his cause of action, the judgment must be that the action be dismissed, with costs, without prejudice to a new action. (Laws of 1902, chap. 580, § 248.) A judgment of dismissal on the merits can be granted only where, at the close of the whole case, the court is of opinion that the plaintiff is not entitled to recover as matter of law, or where the court sustains a demurrer and no leave to plead over is granted. (Id, § 249.) The judgment must be modified by striking out the words "on the merits," and inserting in lieu thereof the words "without prejudice to a new action;" and as thus modified affirmed, without costs of this appeal to either party. Present Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ.

Richard J. Donovan, Respondent, v. William

R. Weed and Frederic A. Weed, Appellants. Judgment and order affirmed, with

[Vol. 86.

costs. Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of Richmond county on the 19th day of March, 1902.—

GOODRICH, P. J.: The plaintiff has recovered a verdict for broker's commissions upon the sale of 4,000 acres of Adirondack land to Mr. A. A. Low in the early part of 1901. At the trial the defendants' counsel said: "This land was sold to Mr. A. A. Low. If Mr. Donovan brought about that sale, he is entitled to a commission for making that sale. We do not object to any evidence which shows that he made a sale to Mr. Low." This admission practically narrowed the issue to the question whether the plaintiff was the procuring cause of the sale to Mr. Low. In October, 1898, the plaintiff wrote the defendant Willian. R. Weed a letter in answer to one received from him, in which, after referring to the land, he said: "I note that you say the price is $7.50 per acre; no commission at that price. Now, the only way that I could handle this satisfactory to all parties concerned would be to charge a fixed commission for a selling price; no matter what that price might be. I would be willing to take the matter up and go to work on it immediately and charge you a commission of 10% of the selling price. If you desire to have me go into the matter, I would like a blue print, if you have one, or a good map of any kind showing the bodies of water on the land, together with the relation the land bears to the railroad, and adjoining land owners." In January, 1899, Weed called on the plaintiff in New York city and had a conversation with him in regard to the matter, and the interview eventuated in the following letter: "LENNEY & DONOVAN, Counsellors at Law, 120 Broadway,

"NW YORK, January 12th, 1899. "R. J. DONOVAN, Esq., New York:

DEAR SIR. We will sell you our land in Bog River, Township Oakham, comprising about 4,500 acres for $6.00 per acre less 10% com. to you, we to have the right to cut and remove the spruce timber and pulp wood and the right to the use of the lands for the purpose of lumbering in the usual manner of lumbering and we agree to cut and remove the timber and pulp wood within six years, or we will sell the whole amount of land without any restrictions for $10.00 per acre less 10% com. The title is perfect and a warranty deed will be given, the above com. to be paid should price per acre be less as agreed between us and Mr. Donovan. WILLIAM R. & FREDERIC A. WEED, "Per W. R. WEED."

In June, 1900, the plaintiff went to the Adirondacks to see Mr. Low at his place at Horseshoe Pond, and testified that he told him about the property and its advantages, and about the lakes and streams and the timber upon it, and that he had a long interview with him. Mr. Low said that he would consider the property, and although he said he would not give any definite reply at that time he might do something about it. The plaintiff again went from New York to Horseshoe Pond and saw Mr. Low later in the summer, when Mr. Low wanted some blue prints and surveys showing the location of the property, its size and the lakes, etc. The plaintiff obtained blue prints from Weed and gave them to Mr. Low, and afterwards saw him twice during the season, and in August and September wrote Weed several times about the matter. On August twentyeight the plaintiff obtained from the defendants an option to purchase the land at

App. Div.]

After the introduction of these letters in evidence defendants' counsel made the concession already quoted. On January 12, 1901, the defendants wrote the plaintiff a letter canceling his employment, saying: "We have withdrawn the land from sale and will not allow you any commission." It is proven that Mr. Low bought the property in February, 1901, at eight dollars per acre, the deed being given to him in April. I have not stated the entire evidence on the question of the plaintiff's agency in effecting the sale to Mr. Low, but it was sufficient to require the submission to the jury of the question whether the plaintiff was the procuring cause of the purchase by Mr. Low. While it would have been more satisfactory if Mr. Low had been called as a witness, it must be observed that it was within the power of the defendants to do so, and the failure to call him does not militate exclusively against the plaintiff, who, as already intimated, had produced evidence sufficient to establish his cause of action. There was also evidence offered by the defendants from which the jury might have inferred that the plaintiff was unfaithful to the interests of the defendants, growing out of the Conklin option, which, if unexplained, might have defeated his claim for brokerage cominissions; but there was also evidence that after the defendants knew all the circumstances they renewed and confirmed their negotiations with him for the sale. The court carefully instructed the jury upon these subjects, submitting to them three questions: "First. Was this sale a sale that was brought by his efforts, by his services, as the efficient cause? Second. Was he guilty of any infidelity to their interests which would forfeit his right to a commission? Third. If so did they forgive him?" The jury found for the plaintiff on all these questions, and we see no reason to disturb their verdict. The exception to the refusal to dismiss the complaint is sufficiently passed upon by the foregoing statement. I find no exceptions to the admission or exclusion of evidence which require discussion. The defendants excepted to the statement in the charge "that he (the plaintiff) found Mr. Low in this case is beyond question." The court said: "If I used that expression it was, perhaps, an unfortunate one. They employed plaintiff, however, to present this property, as a subject of purchase, as their broker to Mr. Low. They employed him to do that, and if they did it does not matter whether he found him or whether Mr. Low was not lost." If the original remark of the court taken with its connection was error-and I do not think it was-it was corrected by the court. The other exceptions to the charge are not tenable. The judgment and order should be affirmed. Bartlett, Woodward, Jenks and Hooker, JJ., concurred.

Thomas C. Taylor, Respondent, v. Larchmont Water Company, Appellant.-Judgment reversed and new trial granted, costs to abide the final award of costs.- Appeal by the defendant, Larchmont Water Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 13th day of March, 1902, requiring the defendant to remove its water main from Myrtle place in the village of Larchmont in the town of Mamaroneck.HIRSCHBERG, J.: This action was commenced on October 23, 1900, its object being to compel the defendant, an incorporated water company, to take up a water main heretofore laid by it in Myrtle avenue and in a continuation of such avenue known as Myrtle place, in the village of Larchmont, in the town of Mamaroneck. The trial court found that Myrtle place was a private street, the freehold title to the bed of which was vested in the plaintiff, and required the removal of the main from that place; but as the damage done the plaintiff might not be substantial, the judgment provided that the defendant should have sixty days' time in which to institute legal proceedings for the condemnation of a right to maintain the pipes in question in Myrtle place. While the evidence justifies the conclusion reached by the trial court that the street in question is private property, I think it is not sufficiently clear that the plaintiff is the owner; and under the circumstances disclosed as to the original laying of the pipe or main only the clearest evidence of right would justify a court of equity in requiring the defendant to incur the expense of removing what was unquestionably originally placed in the street at its expense, but for the sole benefit of the plaintiff. It appears that the defendant's pipes in 1899 were laid in Myrtle avenue and also in a highway known as Edgewood avenue, the two avenues being connected by Myrtle place. The plaintiff having built at or near the junction of Edgewood avenue and Myrtle avenue, complained to the defendant of the quality of the water supplied to his house, and the defendant in order to remedy the trouble, which is attributed to the "dead end" of the pipe, then opposite the plaintiff's house, laid the main in question in order to secure a continuous circulation. This was done at an expense of $600 or $700, and the evidence leaves little room for doubt that it was done with the plaintiff's knowledge and acquiescence. A difference between the parties afterwards developed has apparently given rise to the litigation, but equitable considerations would naturally dictate that a condition of affairs so created should not be lightly disturbed to the prejudice of the defendant, or without the clearest warrant of right on the part of the plaintiff. There can be no question but that the street has been long dedicated to the public use, although never formally accepted or recognized by the town authorities, unless it be in the matter of the laying of this pipe which would seem to have been located or placed to some extent under the direction of the commissioner of highways. As early as the year 1857 the owners of the property filed a map in the office of the register of the county of Westchester, showing Myrtle place as a street laid out with lots abutting on it, and from that time to the present it has been open to public use and travel. In every conveyance and transfer of the lots the soil of the street has been carefully excluded from the description of the prop erty, the conveyances to and from the plaintiff, like all the others, being confined to the

abutting lots and not including any portion | of the street. It further appears that before the commencement of this action the plaintiff had thus conveyed whatever property he possessed, either to his wife or to other grantees, and there is nothing in the record tending to establish that at the time the action was commenced he was the owner of any property either in the street or bordering on it. He did indeed say that he "sup posed" the property was owned by himself and his wife and that she had given him a reconveyance which he had not recorded. Such reconveyance was not produced, nor was any evidence given as to the scope or nature of the tenure created by it, nor anything to indicate that it preceded the commencement of the action. The plaintiff having no interest in the subject-matter of the suit upon the record title, should have been required to disclose explicitly the grounds and nature of his claim to the relief which he has obtained by the judg ment appealed from in view of the peculiar circumstances under which the trespass, if there be a trespass, was committed, and his failure so to do, wholly apart from any consideration of the defendant's rights in the premises, requires a new trial in the interests of justice and equity. The judgment should be reversed. Goodrich, P. J., Woodward, Jenks and Hooker, JJ., concurred. Andrew O'Brien, Respondent, v. James P. Silo, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Ancel J. Brower, Appellant, v. Moses King. Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. George Meier, Appellant, v. Thomas F. Russell and David Crutchfield, Respondents.-Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.

Michael J. Cronin, Respondent, v. William Schaffer, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Isaac Lewis and Julius Bashlow, etc., Respondents, v. Meyer Rabinowitz, Appellant. --Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred.

No

John F. Gillen, Respondent, v, George H. Walker, Jr., Appellant.-Judgment of the Municipal Court affirmed, with costs. Νο opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Christian C. W. Grassmaun, Respondent, v. John Mohl, Appellant.-Judgment of the Municipal Court affirmed, with costs. opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Christian F. Mentzinger, Appellant, v. Edgar R. Gallavan, Respondent.-Judgment of the Municipal Court affirmed. with costs. opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Charles M. Schreyer, Respondent, v. J. S. Bailey & Company, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

No

Mathew M. Smith, Respondent, v. Max Richman, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opin

[Vol. 86.

ion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

The People of the State of New York, Respondent, v. Peter Lewitz, Impleaded, etc., Appellant.- Judgment of conviction affirmed. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

Frances E. Farmer, Appellant, v. Josephine M. Sweet, Respondent.- Judgment affirmed, with costs. No opinion. Goodrich, P. J., Woodward, Hirschberg and Hooker, JJ., concurred.

George A. Molitor, Respondent, v. Northampton Portland Cement Company, Appellant. -Judgment affirmed, with costs. No opinion. Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Edward Butcher, as Trustee of George Bonawitz, an Adjudicated Bankrupt, Appellant, v. Margaret M. Bonawitz, Respondent.Judgment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.

William J. Collier, as Trustee in Bankruptcy of the Estate of Theodore Shay, Bankrupt, Appellant, v. Sarah Cole, Respondent.Judgment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred. Long Island Bottlers' Union, Appellant, v. Michael Seitz, Respondent.-Judgment and order affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Julius Kessler & Company, Respondent, v. James E. Purtell, Appellant.- Judgment affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

Priscilla Levett, Respondent, v. Horace G. Polhemus, Individually and as Executor, etc., and Others, Respondents; John Crispe, Individually and as Executor, etc., Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred; Hirschberg, J., not voting. Samuel Speigelman, Respondent, v. Union Railway Company of New York City, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.

Elizabeth Boxberger, as Administratrix, etc., of Raymond Boxberger, Deceased, Appellant, v. The Brooklyn Heights Railroad Company and James Burke, Respondents.-Order modified by inserting a provision requiring the defendants to pay the costs of the trial and all disbursements in the action to date, together with the costs of this appeal, all to be paid within twenty days from the entry of this order; otherwise order reversed and judgment unanimously directed on this verdict, with costs and costs of this appeal. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred.

In the Matter of the Petition of Luigi Castellano, Individually and as Secretary of the Societa Italiana di Mutuo Soccorso in Brooklyn, Appellant, v. Francesco Cafiero and Others, Impleaded with the Societa Italiana di Mutuo Soccorso, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred.

Charles H. Smith, Appellant, v. Erie Railroad Company, Respondent.- Judgment and order of the County Court of Orange county reversed and new trial ordered, costs to