and 106 New York State Reporter terested witness, the jury had also the right to disbelieve his testimony. We therefore think that substantial justice has been rendered by the jury's verdict, and the judgment and order appealed from are affirmed, with costs. Judgment and order affirmed, with costs. DELEHANTY, J., concurs. DOBSON et al., Appellants, v. DR. B. J. KAY MEDICAL CO., Respondents. (Supreme Court, Appellate Division, Third Department. November 13, 1901.) Action by Lotta S. M. Dobson and another against the Dr. B. J. Kay Medical Company. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Affirmed, except as to awarding costs to defendant. PER CURIAM. The order denying motion for a new trial, and the judgment, should be affirmed, except that part of the judgment which awards costs to the defendant, and as to that part it should be reversed, with costs to the respondent. The order denying the plaintiffs' application for a certificate should be reversed, as we are of opinion that in this action a claim of title to real property arises on the pleadings, and an application for a certificate in such cases is unnecessary. The plaintiffs should make application to the clerk for taxation of their costs. DORRMAN, Respondent, v. UNION RY. CO. OF NEW YORK CITY, Appellant. (Supreme Court, Appellate Division, Second Department. October 23, 1901.) Action by Frederick Dorrman against the Union Railway Company of New York City. No opinion. Judgment and order unanimously affirmed, with costs. DUNN et al., Respondents, v. BARRY, A pellant. (Supreme Court, Appellate Tea June, 1901.) Action by Tabitha Dunn and others against Peter Barry. D. A. Levien, for appellant. D. M. Neuberger, for respondents. No opinion. Judgment affirmed, with costs. DWYER, Respondent, V. METROPOL ITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Robert F. Dwyer against the Metropolitan Street Railway Company. H. A. Robinson (G. Glenn Worden, of counsel), for appellaat John J. Quencer, for respondent. PER CURIAM. Although the evidence was conflicting, there was sufficient to justify the judgment. If it were held to be contributory negligence as a matter of law to attempt to cross a railway track with a horse and wagra when a car is a block and a half away, al travel except by surface cars would practicaly have to be suspended. The motorman admits that he saw the wagon on or near the track when he was about a block away, and he should then have taken the necessary measures to avoid a collision. His story that the horse swerved into the car after he had safely clear ed the wagon lacks corroboration, and the jus tice was warranted in disregarding it. Judg. ment affirmed, with costs. EDWARDS, Respondent, v. HARTFORD Appellate Term. June, 1901.) Action by An FIRE INS. CO., Appellant. (Supreme Court, nie Edwards against the Hartford Fire Insurance Company. William D. Murray, for appellant. D. Frank Lloyd, for respondent. PER CURIAM. This case is not to be distinguished from Bryce v. Insurance Co., 55 N. Y. 240, 14 Am. Rep. 249. Under the re declared in that case, which has never been modified or departed from, the defendant established a complete defense, and should have prevailed. Judgment reversed, and new trial granted, with costs to appellant to abide event. EISERT. Respondent, v. BARTH, Appelnt. (Supreme Court, Appellate Term. June, 901.) Appeal from Alwin Eisert against John Barth. Lippman & Ruck, for appellant. V. H. Klinker, for respondent. No opinion. udgment afirmed, with costs. EPSTEIN, Respondent, v. BROOKS et al., ppellants. (City Court of New York, Genral Term. May, 1901.) Action by Jacob pstein against James Brooks and James F. eeley. James A. Lynch (John H. Mulcahey, f counsel), for appellants. Max D. Steuer, or respondent. PER CURIAM. The action is in the orinary form for goods sold and delivered. The nswer is-First, practically a general denial; nd, second, a specific allegation of an execuory contract of sale, in which plaintiff made ertain representations as to the condition of he goods offered. It is claimed by the deendants, and so found by the jury, that there ever was an acceptance of the goods offered; nd the evidence of the defendants is to the ffect that the plaintiff called after the delivry of the goods and stated that he would ake them away, and did, in fact, put them n condition for removal, and promised to send or them in a day or two. He was subsequently notified to remove them, as they were n the defendants' way. It is somewhat remarkable in this case that no exceptions were aken by the plaintiff to the charge of the trial justice, and, indeed, the only exception by him of any effect is the exception to the refusal to set aside the verdict at the close of the trial. We have examined the case with care, and have given to it due consideration, and have reached the conclusion that the verdict of the jury was the only proper determination of the issues presented, and that the order setting aside the verdict and granting a new trial was error which calls for reversal. Order appealed from reversed, with costs, and the verdict and judgment allowed to stand. Order reversed, with costa motion that the order of reversal herein shall dismiss this proceeding, instead of granting a new trial, denied, without costs. ERLANDSON, Respondent, v. GROH, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Julius Erlandson against Frank S. Groh. William R. Hill, for appellant. Douglass & Minton, for respondent. PER CURIAM. There is nothing in this case except a conflict of evidence, and we see no reason to reverse the conclusion arrived at by the justice. The question put to the witness Hunt as to the condition of the machine at some undesignated time was properly excluded, because the issue was not as to its condition after it had been used by defendant, but as to its original capability for doing the work for which defendant ordered it. Judgment affirmed, with costs. EXNER, Respondent, v. O'GARA, Appellant. (City Court of New York, General Term. May, 1901.) Action by Edmund Exner against Thomas O'Gara. Jas. C. Quinn, for appellant. Chas. W. Philipbar, for respondent. O'DWYER, J. No order denying the motion for new trial appears in the appeal book, and the appeal must therefore be determined solely upon defendant's exceptions taken dur ing the trial, and the only exception called to our attention is that to the ruling upon the question addressed to the witness Boyle. The accident occurred on the 7th day of August, 1899, and was caused by the defective condition of the oilcloth on the stairway in question, and this witness testified that he went with the defendant in September, 1899 (the date he did not know), and examined the stairs from the top to the bottom. The record shows the following proceedings: "Q. What did you find, as the result of your examination to the third story, as to the condition of the as to the stairway leading from the second oilcloth? (Objected to. Objection sustained. Exception.) A. I don't know when the oilcloth was put down. It appeared apparently new." The defendant's liability was to be determined by the condition of the oilcloth previous to and at the time of the accident. Its condition in September, long after the accident, had no relevancy upon the issue, and the ruling of the court was right. There is nothing in the case to show that the oilcloth was in the same condition in September, 1899, as it was on August 7, 1899, or previous thereto. Furthermore, it appears from the testimony of ERICIUS et al., Respondents, v. BROOK-this witness that at the time he examined this LYN HEIGHTS R. CO., Appellant. (Su- oilcloth it appeared apparently new. The expreme Court, Appellate Division, Second Deception is without merit, and the judgment partment. October 4, 1901.) Action by Anna must be affirmed, with costs. K. Ericius and Frank Zimmerman, executors, firmed, with costs. etc., against the Brooklyn Heights Railroad Company. No opinion. Motion denied. ERICHSON, Respondent, v. TERRY et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) Action by Benno Erichson against John T. Terry and others. No opinion. Judgment of the municipal court unanimously affirmed, with costs. ERIE R. CO., Respondent, v. STEWARD et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Action by the Erie Railroad Company against Mary Anna Steward and others. No opinion. Appellants' motion to resettle order granted, and order resettled. Respondent's Judgment af CONLAN and HASCALL, JJ., concur. FARMERS' LOAN & TRUST CO. v. NEW YORK & N. RY. CO. et al. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by the Farmers' Loan & Trust Company, as trustee, against the New York & Northern Railway Company and others and Artemas H. Holmes. and 106 New York State Reporter PER CURIAM. We think that the application for restitution in this case should be made to the court of appeals. See Murray v. Berdell, 98 N. Y. 480. Application denied, without prejudice to such motion. FEKUS, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Stanislaus Fekus against the Metropolitan Street Railway Company. H. A. Robinson (G. Glenn Worden, of counsel), for appellant. E. Rosenthal, for respondent. No opinion. Judgment affirmed, with costs. FELIO, Respondent, v. CITY OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Action by David J. Felio against the city of New York. No opinion. Judgment affirmed by default, with costs. FENWICK, Respondent, v. MITCHELL et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by F. Bell Fenwick against William T. Mitchell and the Metropolitan Street Railway Company. No opinion. Judgment (70 N. Y. Supp. 667) reversed on argument, and new trial granted, costs to abide the final award of costs, on authority of Fischer-Hansen v. Brooklyn Heights R. Co., 63 App. Div. 356, 71 N. Y. Supp. 513. FERRIS V. TOWNES et al. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by Arthur F. Ferris against Willis G. Townes and another. No opinion. Appeal dismissed, with $10 costs. FICLEN, Respondent, v. MORAL et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by William Ficlen against Bernard Moral and others. S. D. Epstein, for appellants. J. Lazarus, for respondent. No opinion. Judgment affirmed, with costs. FISCHER V. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division. First Department. October 18, 1901.) Action by Mamie Fischer against the Metropolitan Street Railway Company. No opinion. Motion denied, upon payment of $10 costs, and, upea payment of an additional $10, leave given to apply to court below to open default. == FISHEL et al., Respondents, v. WEIR, Appellant. (Supreme Court, Appellate Term June, 1901.) Action by Henry W. Fishel and others against Levi C. Weir, as president of the Adams Express Company. Guthrie, Cravath & Henderson, for appellant. Jacob Marks, for respondents. PER CURIAM. The provisions of the statute of Iowa (section 3130), as to "unclaimed property" were not complied with, as appears from the agreed statement of facts. Owners' whereabouts were unknown. They had been twice requested for instructions regarding the disposition they wished made of the rejected package, and it is admitted that they had no notice of the amount of the carrier's charges due and unpaid as required by this provision. Irrespective of the other questions involved. the sale was unauthorized by law, and the judgment below should be affirmed, with costs. Judgment affirmed, with costs. FISHER v. HAINES._(Supreme Court. Appellate Division, First Department. October 18, 1901.) Action by George E. Fisher against Charles D. Haines. No opinion. Motion de nied. FLETCHER, Appellant. V. FLETCHER, Respondent, et al. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by William H. Fletch against George M. Fletcher and Fanny O'Connor, as administratrix, etc. PER CURIAM. Motion for dismissal of the appeal from the judgment denied. Motion for dismissal of the appeal from the order denied. on condition that the said appeal be brought on for argument at the next term of this court; otherwise, motion granted. FINLEY, Respondent, v. BROOKLYN UNION EL. R. CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. FLETCHER et al. v. McKEON et al. (SuOctober 4, 1901.) Action by John Finley against the Brooklyn Union Elevated Railroad preme Court, Appellate Division, First DepartCompany and the Brooklyn Heights Railroad ment. October 25, 1901.) Action by Austin B. Company. No opinion. Judgment affirmed, others. No opinion. Motion to dismiss denied Fletcher and others against John McKeon and with costs. until decision upon motion to set aside order of September 23, 1901. FISCHER, Respondent, v. CONHAIM et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by Max Fischer against Joseph Conhaim and others. H. V. Rutherford, for appellants. J. Wilkenfeld, for respondent. PER CURIAM. The nonpayment of the bonus was by the contract of employment made dependent upon an exercise by the defendants of their reserved right to discharge the plaintiff within the year. He was not discharged, but served the full term, without any expression of dissatisfaction. He was, therefore, entitled to the extra compensation. Judgment (71 N. Y. Supp. 315) affirmed, with costs. FLINN, Respondent, v. MILLER, Appellant. (Supreme Court, Appellate Term. June, 1901) Action by Joseph A. Flinn against William S. Miller. Glover, Sweezy & Glover, for appellant. H. A. Geney, for respondent. PER CURIAM. This case is distinguishable from Brooks v. Mortimer, 10 App. Div. 518. 42 N. Y. Supp. 299. In that case the grocers' bills were made out to the purveyor, and the purveyor's personal checks given in payment thereof. In the case at bar, while the dealings continued for some years, plaintiff's bills were always made out, and in some instances mailed. the plaintiff to the defendant in his own | John F. Coffin, for appellants. Shapiro & Shape, and the mere fact of the coachman com- iro (Aaron S. Shapiro, of counsel), for respondwith the money to pay the same was not ent. ircumstance at variance with everyday deal- CONLAN, J. This action was brought to 3, and could not constitute notice sufficient foreclose a mechanic's lien upon certain premput plaintiff upon inquiry. Judgment af-ises on West Fifty-Second street in the city of ed, with costs. New York. After issue joined, the case was referred to a referee to hear and determine. The complaint demands $400 as a balance due under the contract between the parties, and $530 for extra work. The judgment is for the $400, interest, and costs; the charge for the extra work not having been found in the plaintiff's favor. We have examined the whole case, and think there was ample evidence to sustain the findings and conclusions reached by the learned referee, and do not find any reason for disturbing the conclusions reached by him; and the judgment appealed from must therefore be affirmed. Judgment affirmed. O'DWYER, J., concurs. OLEY, Appellant. v. BALLWEG et al., spondents. (Supreme Court, Appellate Divi1, Second Department. October 18, 1901.) ion by M. Charles Foley against Susanna lweg and Lina Miller. No opinion. Judgnt affirmed by default, with costs. 'OLSOM, Appellant, V. WINTERS, Re- IASCALL, J. We think that no error was CONLAN and O'DWYER, JJ., concur. ts. FRANKEL et al., Respondents, v. BROWN, FRIEDMAN, Respondent, v. HERTER et HASCALL, J. (dissenting). It appears to me that plaintiff did not show substantial compliance with the terms of his agreement as to his work, nor did he produce the architect's certificate that he was entitled to payment. For these reasons I dissent. VERNON, Appellant. (Supreme Court, AppelFULLER, Respondent, v. CITY OF MT. late Division, Second Department. October 18, 1901.) Action by James K. Fuller against the city of Mt. Vernon. No opinion. Judgment and order unanimously affirmed, on authority of Archer v. City of Mt. Vernon, 63 App. Div. 286, 71 N. Y. Supp. 571, with costs. F. W. DODGE CO., Appellant, v. MAY, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by the F. W. Dodge Company against Solomon May. J. S. Montgomery, for appellant. C. B. Palmer, for respondent. PER CURIAM. It seems to this court either that the learned justice erred in the construction of the written agreement, in that it could be terminated at any time upon giving the specified notice, whereas it lasts by its terms for one year, and thereafter may be ended upon giving of the notice, or that he failed to notice the want of any testimony in the defendant's behalf of a breach by the plaintiff. The contract provided that plaintiff shall furnish "such information as it is able to obtain" regarding the subject-matter. An examination of the record fails to show any breach by plaintiff in that behalf, while the defendant admits receipt of the reports for the full term of one year. Judgment reversed, and new trial ordered, with costs to abide event. GAINES, Respondent, v. JONES, Appellant. (Supreme Court, Appellate Division, Second Lottie Gaines against Missouri Gaines Jones, Department. October 18, 1901.) Action by ceased. No opinion. Order affirmed, with $10 as administratrix, etc., of Ulysses Gaines, decosts and disbursements. GANS, Appellant, v. GREEF et al., Respondents. (Supreme Court, Appellate Term. June, 1901.) Action by Isaac Gans against John and 106 New York State Reporter Greef and others. E. W. Wakelee, for appellant. C. G. Miller, for respondents. No opinion. Judgment affirmed, with costs. GARLICK, Respondent, v. MEYERS, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Joseph Garlick against Louis Meyers. Leon Sanders, for appellant. Stanislaus N. Tuckman, for respondent. PER CURIAM. The justice was right in setting aside the verdict. The evidence was clear that the coach in question was allotted to plaintiff in the division of the partnership property, that it was afterwards found in defendant's possession, that the plaintiff demanded its return, and that defendant refused to give it up. These facts established the plaintiff's right to recover. The defendant offered no evidence to show how he came into possession of the coach, or what claim of right, if any, he had to its possession. It is not important whether the coach was put in plaintiff's stable or taken away by defendant on the night that the division was made. In either event it belonged to the plaintiff, and later was found in defendant's possession. If he had any right to its possession, he should have made the fact to appear. Order affirmed, with $10 costs. be found where the landlord has threatened > and is, deliberately violating his covenant d quiet enjoyment of the premises leased, and the tenant has not been afforded any prote tion. It is said that the maintenance of n injunction under the circumstances disclosed in this case would seem to work a greater hard ship to the landlord than a vacation of it week to the tenant. In other words, notwithstan ing that the landlord deliberately violates covenant of quiet enjoyment, because by sch violation he may gain greater advantages thi the damage he does to his tenant, therefore the tenant is not to be protected. It see to me that this is a dangerous doctrine. It is urged that the landlord notified the term that he was going to make certain improve ments. This, however, the tenant denies. Br if he did, and he then went on and covenanted that the tenant should enjoy the premises for the term leased, which is to prevail,-his ne tice, or his covenant? It is said in the opin ion of the court below: "It would be establish ing a dangerous precedent to grant an injun tion in every case where, as here, the possi rights and privileges of a tenant are temporarily, but not unnecessarily, interfered with br proposed alterations and improvements to the landlord's building, even though the tenant may suffer some damage thereby." Why, then, diì the landlord make the lease? To what extent is he to be allowed to interfere and violate his covenant? Who is to judge? What security has the tenant? How is the tenant to give proof in a court of law as to how many people have been deterred from entering his establish ment by this serious disturbance of the facil ties of ingress and egress on and from the excep-ing, which he desires to improve. The tent premises leased? The landlord has a big ball Judg with has but a small portion of that building. The landlord's interests are great, and the tenant's small; but the small interest of the tenant is entitled to the same protection of the law as the large interest of the landlord. His ewe lamb may be of vastly more importance to the tenant than the numerous flocks of the landlord to him. The order should be reversed. GEFFEN et al., Respondents, v. UNION CLOAK & SUIT CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Morris L. Geffen and others against the Union Cloak & Suit Company. Louis A. Jaffer, for appellant. Joseph Martin (William L. Mathot, of counsel), for respondents. PER CURIAM. The case presents no tion which raises any question of law. ment (69 N. Y. Supp. 1134) affirmed, costs. GERKEN, Appellant, v. HALL et al., Respondents. (Supreme Court, Appellate Division. First Department. October 18, 1901.) G. H. Taylor, Jr., for appellant. L. Skidmore, for respondents. PER CURIAM. Order affirmed, with $10 costs and disbursements. on opinion of court below. 71 N. Y. Supp. 753. be In re GIHON. CARPENTER, County Treas 1. urer, et al., Appellants, v. GIHON et al., Re spondents. (Supreme Court, Appellate Divi sion, Second Department. October 11, 1901) of Caroline Remsen Gihon, deceased, under the In the matter of the appraisal of the property act in relation to taxable transfers of property. Action by Francis M. Carpenter, treasurer of Westchester county, and Erastus C. Knight comptroller of the state of New York, against William Gihon, F. G. Le Roy, and Haley Fiske, executors. No opinion. Decree of the surrogate's court of Westchester county (68 N. Y. Supp. 381) affirmed, on the opinion of the surrogate, with costs to the executors, respond VAN BRUNT, P. J. I dissent from the conclusion arrived at by the majority of the court, affirming the order in this case upon the opin; ion of the court below. If the rule adopted in this case is to prevail, tenants have no protection whatever against aggressions of their landlords, when such landlords have the ability to respond to any judgment which may recovered in an action at law. This is the first time in the history of jurisprudence in this state, so far as I have been able to learn, that a covenant for quiet enjoyment has been deliberately violated by a landlord and no protec-ents, payable out of the estate. tion has been afforded to the tenant, except his right to bring an action for damages. Cases are cited where the courts have remitted a landlord to his action for damages where he has sought to enforce a restrictive covenant against the use of the premises; but none can GOLD, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court. Appel late Term. June, 1901.) Action by Hanna Gold aganist the Metropolitan Street Railway Company. A. H. Sarasohn, for appellant. H |