LIST OF DECISIONS -- NO OPINIONS.
SUPREME COURT, APPELLATE TERM, APRIL, 1899.
Before FREEDMAN, P. J., MACLEAN and
LEVENTRITT, JJ. Adolph Jablinowsky, Respondent, v. Adolph Yokel, Appellant.- Appeal from a judg ment of the Municipal Court, fourth district, in favor of the plaintiff, for $77.50 damages and interest, with $17.50 costs and extra costs, making $95. Rosenthal & Rochmovitz, for appellant, Leopold W. Harburger, for respondent. Judgment affirmed, with costs. No opinion. Julius Lassere, Appellant, v. Bertha Stein, Respondent Appeal from an order of the General Term of the City Court, affirming an order of the Special Term of the
City Court, denying a motion to punish the respondent herein, for a contempt of court. Ira Leo Bamberger, for appellant, David Salomon, for respondent. Order of General Term and Special Term affirmed with costs to respondent. No opinion Julia Kreizer, Respondent, v. Emanuel Frey, Appellant. Appeal from judg ments in favor of the plaintiff, rendered in the Municipal Court of the city of New York, borough of Manhattan, seventh district. Warren Leslie, for appellant, Fromme Brothers, for respondent. Judgment in each action affirmed, with costs to the respondent. No opinion.
Use of check for a smaller amount than the debt.- Where there has been a
dispute in regard to the value of goods sold and delivered and the vendees
thereafter send to the vendors a check for an amount which they claim to be
the full value of the goods, the use of the check by the vendors, with knowl-
edge of the vendees' contention, cancels the debt, as the vendors should have
returned the check if they deemed its amount insufficient. Amer v. Folk, 634.
ACCOUNTING.
See Trustees; Trusts.
1. Foreign executor - Cannot be sued in the State of New York-Juris-
diction. A foreign executor cannot be sued in the courts of the State of New
York in his representative capacity, and an allegation that he has assets of
his testatrix in his possession in this State does not alter the rule or confer
jurisdiction. Ferguson v. Harrison, 380.
Not abated by death intestate of sole plaintiff — Another
action pending. An action of partition does not abate by the death intestate
of the sole plaintiff and, in the absence of laches, may be revived by the
grantee of an heir-at-law, as being the successor in interest of the intestate.
The action, not having abated, constitutes a bar to a new action by a party
in interest. Cheney v. Rankin, 609.
3. Adjustment of rents and profits collected. In such an action, rents and
profits collected may be adjusted between the parties. Id.
See Discontinuance; Real Property.
AFFIDAVIT.
See Bill of Particulars.
1. Where a broker has procured an exchange, the principal cannot defeat
him of commissions by imposing additional conditions upon the purchaser.—
Where a broker has procured a mutually satisfactory oral agreement for the
exchange of the real estate of his clients, they cannot defeat his claim for
commissions by adding to a written agreement, made by themselves with the
purchaser in general affirmance of the oral one, a new condition requiring
that their own attorney must first approve of the form of the written agree-
ment, an approval not shown to have been given. Halprin v. Schachne, 195.
2. Proof of agent's authority to employ an architect.- A resident general
manager and agent of a foreign corporation, having a right to execute in its
behalf an agreement for erecting a building according to the plans of an
architect, and also to employ another architect to perform the precise work
for which the first seeks to recover, will be presumed to have sufficient au-
thority to employ the first architect, and bind the corporation for the pay-
ment of his services. Lippitt v. St. Louis Dressed Beef & Provision Co.,
222.
3. Conversations by telephone.- Semble, that conversations over the tele-
phone are not in their nature incompetent evidence. Id.
4. A mere salesman cannot bind his principal to accept payment in a medium
other than money. A mere salesman of a liquor dealer has no authority to
bind his nonconsenting principal to an agreement that, instead of cash being
paid by the vendee for whiskey sold, payment shall be made by permitting the
dealer to use the outer walls of the building of the vendee for advertising
purposes. Beck v. Donohue, 230.
5. Broker's action for commissions — Proof by proposed purchaser.— Where
a broker brings an action to recover commissions for effecting an exchange of
real estate upon terms dictated by his client but which the latter finally re-
fused to abide by, the broker may prove the necessary elements of his case
by the proposed purchaser; and the latter may testify to the conditions upon
which the exchange was to be made where these conditions have been com-
municated to and accepted by the broker's client. Kirchner v. Reichardt, 530.
See Contract.
ALIMONY.
See Divorce; Marriage.
AMENDMENT.
See Pleading.
ANSWER.
See Pleading.
1. Surrogate's Court- - A decree not opened to correct an error of law.—
A decree of a surrogate cannot be opened in order to correct an error of
law made in calculating executors' commissions and the remedy is by an ap
peal from the decree. Matter of Monteith, 163.
2. Justice's Court — Authority of attorney terminates with final order of
dispossession. After the entry of a final order in favor of the landlord made
in dispossession proceedings taken in Justice's Court, his attorney has no
authority to extend the time to appeal. Bergholtz v. Ithaca Street Railway
Co., 176.
3. Final order not invalidated by a failure to name the amount of the costs.—
For the purposes of an appeal such a final order is not affected by the fact
that the justice failed to state in it the particular amount of the costs
awarded to the landlord. Id.
4. Order of discontinuance.—A Special Term order discontinuing an action
in the City Court of New York, made on the plaintiff's motion and granting
costs to his attorneys, is not an order merely allowing costs of a motion and
therefore is appealable to the General Term of said court. Elliott v. Ver-
milyea, 189.
5. City Court of New York - Severance of action is discretionary and not
appealable. An application to the City Court of the city of New York made
by the plaintiff for the severance of an action as to certain counterclaims is
addressed to the discretion of that court and is not appealable. Belsena Coal
Mining Co. v. Liberty Dredging Co., 191.
6. Appellate Term Power to open default in Municipal Court — Payment
of execution under protest.- The Appellate Term may, in the first instance
and on affidavits, open a judgment taken in a Municipal Court of the city
of New York by default, where the summons had never been served on the de-
fendant, and the fact that he, under protest, has paid an execution issued
on the judgment does not bar his right to try the error in fact by an appeal.
Empire Hardware Co. v. Young, 226.
7. Surrogate's Court - Decree not opened for errors in an account. A de-
cree judicially settling the account of an administrator with the will an-
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