Robinson (G. Glenn Worden, of counsel), for ondent. No opinion. Judgment affirmed, a costs. OLDBERG, Appellant, v. CONGREGAON ACUDA ANSHEI, Respondent. (Sune Court, Appellate Term. June, 1901.) ion by Joseph Goldberg against the Congation Acuda Anshei. M. Brown, for apant. I. Hourwich, for respondent. No opinOrder reversed, with $10 costs. OLDRING, Appellant, v. NEW YORK NT. & H. R. R. CO., Respondent. (Sume Court, Appellate Division, Fourth Detment. October 18, 1901.) Action by MorGoldring against the New York Central & ison River Railroad Company. No opinion. gment and order affirmed, with costs. OODRICH, Kespondent, v. BRETT, Appel(Supreme Court, Appellate Term. June, 1.) Action by Henry W. Goodrich against rre V. A. Brett. Herbert W. Taylor, for ellant. White & Wing, for respondent. ER CURIAM. The contract provides, "in event of defendant being defeated, that he I pay the disbursements incurred by plaintiff, t and future," and, further, that, in the nt of success, defendant shall pay plaintiff -third of the amount recovered by him, not y in the pending suit, which was but for an tallment, but one-third of the total amount overed under the contract. The words "deted" and "success," as used in the contract, st be held to mean success or defeat in the ion, as the action was the subject-matter of contract. Defendant, it is admitted, sucded in the action, and, as disbursements were y to be paid by him in the event of defeat, decision of the learned trial justice was ereous. Judgment reversed, and new trial ored, with costs to abide event. ORSE, Respondent, v. LYNCH, Appellant. ty Court of New York, General Term. May, 1.) Action by Arthur H. Gorse against anklin Lynch. Francis B. Chedsey, for apant. F. De Lysle Smith, for respondent. ONLAN, J. This is an action to recover consideration expressed in a contract for the e of the good will of a business. The parwere copartners, and the agreement for solution provided for the payment of a fixed a on or before a certain day. That day had sed when the action was brought. The dedant, in his answer, set up certain affirmative enses, calling for an accounting between the ties as to the profits of the business and apportionment to be made thereof between parties, by way of indicating that plaintiff received more than his share thereof over above the amount demanded in the comint as the consideration for the transfer. is court has no equity jurisdiction to take state an account between parties, and the ngs of the trial judge were in our opinion rect and proper. In an action for that pure brought in a court of equity, full justice 72 N.Y.S.-70 could be done to any and all claims made by the defendant, and, if any injustice were done to him by the judgment in this action, he would have full remedy to correct the same. Under the agreement as it existed between the parties at the time of the commencement of this action, and the evidence as adduced upon the trial, the plaintiff's right to recover was absolute, and the direction of a verdict in his favor for the amount claimed was a determination of the issues with which we are not inclined to interfere. Judgment appealed from must therefore be affirmed, with costs. Judgment affirmed, with costs. HASCALL and O'DWYER, JJ., concur. GOTT, Respondent, v. PARKER et al., Appellants. (No. 1.) (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) Action by Fred A. Gott against CharlesF. Parker & Co. No opinion. Order affirmed, with $10 costs and disbursements. RUMSEY, J., not sitting. GOTT, Respondent, v. PARKER et al., Appellants. (No. 2.) (Supreme Court, Appellate October 1, Division, Fourth Department. 1901.) Action by Fred A. Gott against Charles F. Parker & Co. No opinion. Order affirmed. with $10 costs and disbursements. RUMSEY, J., not sitting. GREENBAUM, Respondent, v. SCHUL BERG et al., Appellants. (City Court of New York, General Term. May, 1901.) Action by Philip Greenbaum against Frank Schulberg and others. Henry L. Franklin, for appellants. Miles Rosenbluth, for respondent. PER CURIAM. Reargument ordered at Sepinsert in the printed case on appeal the order tember general term, and appellants directed to dismissing the indictment, offered in evidence and marked "Plaintiff's Exhibit B." If the original exhibit is lost, then the contents must be agreed upon and settled by the trial justice. Reargument ordered. GREENWALD et al. v. WALES. Sheriff. (Supreme Court, Appellate Division, Third Department. September 13, 1901.) Action by Joseph Greenwald, Albert Hildebrandt, Isaac Alderman, and Daniel Greenwald against Augustus G. Wales, as sheriff of Broome county. PER CURIAM. Motion denied, upon condition that the appellant's attorney, within 20 days from the time that a copy of this order is served upon him, has completed the appeal by serving the necessary papers therein and paying to the respondents' attorneys $10 costs of this motion; otherwise, granted, with $10 costs. GROB, Respondent, v. GOTTFRIED, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Abraham Grob against Elias Gottfried. J. Rieger, for appellant. H. Lesser, for respondent. PER CURIAM. The evidence was conflicting, and the judgment of the court below was correct. Judgment affirmed, with costs. and 106 New York State Reporter GROH et al., Respondents, v. SCHNEIDER et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by M. Groh's Sons against Charles Schneider. G. Nathan, for appellants. C. S. Bloomfield, for respondents. PER CURIAM. There is no question involved in this appeal, save the position of the plaintiffs in regard to the check upon which the suit is brought. It would seem from the record that the payee in the check, Louis Schneider, was presumptively a holder in due course. He indorsed it and gave it to Feldman, who, as between themselves, may, from circumstances, have held different rights in law. Feldman, as holder, soon after its receipt, transferred the check to the plaintiffs in payment of a precedent debt. The plaintiffs are not shown to have any knowledge of any equities existent between Schneider, the payee, and Feldman. They therefore became holders in due course from that transfer, and also possessed of all the rights presumptively held by Louis Schneider, the payee. Judgment affirmed, with costs. HAENLEIN, Respondent, v. MEYER, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Catharine Haenlein against Julia M. Meyer. E. H. Benn, for appellant. Denis O'Sullivan, for respondent. PER CURIAM. On conflicting evidence, the justice found for the plaintiff, and his conclusion is amply supported by the plaintiff's testimony, which the court seems to have accepted The point that the plaintiff's husas correct. band was the proper party to sue was not raised below, and it is too late to present it for the first time on appeal. On the trial, defendant's counsel disclaimed any purpose of moving for a nonsuit, stating that he desired a judgment on the merits. We see no reason for disturbing the judgment rendered, and the same must be affirmed, with costs. Judgment affirmed, with costs. Street Railway Company. David W. P more, for appellant. 11. A. Robinson (G. G Worden, of counsel), for respondent. PER CURIAM. The plaintiff failed to s either negligence on the part of the defe or lack of negligence on his own part. Hist timony is somewhat confused, but justifes conclusion that he ran to board a moving and either slipped or stumbled as he was i act of boarding it. The judgment_is_right should be affirmed, with costs. Judgment firmed, with costs. HANSEN, Respondent, v. SAINT, Appelan (City Court of New York, General Term. Je 1901.) Action by Carl F. Hansen against C R. Saint. Floyd Price, for appellant. Good & Hansen (John McG. Goodale, of counsel. respondent. No opinion. Judgment and or appealed from affirmed, with $10 costs and bursements. In re HARRIS. (Supreme Court, Appe Division, Fourth Department. September 1901.) In the matter of the petition of Gece H. Harris to remove from office Nelson Ro sevell, a justice of the peace of the tow Cuba, N. Y. No opinion. Report of referee :ceived and filed. Further hearing set down Friday, October 4th, next. HAYWARD et al., Respondents, v. SIRE Appellant. (Supreme Court, Appellate Tem Action by S. F. Hayward June, 1901.) A. I. S Co. against Leander S. Sire. Donnell & Smith, for respot. for appellant. No opinion. Judgment affirmed, w ent. costs. HEITLER et al., Respondents, v. DICE OFF, Appellant. (City Court of New Y General Term. May, 1901.) Action by Sanel Heitler and others against Joseph Dick Elias Rosenthal, for appellant. forth in the affidavit, after having been ask PER CURIAM. Defendant's statement for an explanation, is sufficient proof of the falsity of the representation made and rehef upon, and entitles plaintiffs to the order appea ed from. The ground of the arrest is in and is sufficiently stated in the order. The complaint sufficiently states the sale and de livery of the goods. The order appealed from must be affirmed, but, in view of the fact that the respondents did not appear in the hearing or file a brief, without costs. Order affirmed, without costs. HEITMAN, Appellant, v. SIRE, Respond ent. (Supreme Court, Appellate Term. June, 1901.) Action by John Heitman against Meyer L. Sire. A. Byrne, for appellant. No appear ance for respondent. PER CURIAM. It may be conceded that the contract to bid on the property at a juda sale for the sole purpose of advancing the price was void as against public policy. The en dence, however, shows that the plaintiff's eploy for the succeeding days was made after at action was completed, and this agreement | 1901.) Action by Charles Hernandez against 1 no way involved the question of public poly. For this reason we think the conclusion f the learned court below was erroneous. udgment reversed, and new trial ordered, with osts to abide event. HEKTOGRAPH _MFG. CO., Appellant, v. KNUBEL, Respondent. (Supreme Court, Apellate Term. June, 1901.) Action by the Iektograph Manufacturing Company against Herman Knubel. Samuel H. Randall (John Delahunty, of counsel), for appellant. Paskusz Cohen (Martin Paskusz & William S. Gorlon, of counsel), for respondent. PER CURIAM. The action was brought on wo promissory notes. The answer pleaded the statute of limitations and that the notes were given for the accommodation of plaintiff without consideration. Upon the trial the defendant gave evidence tending to show payment of the notes. Such evidence was inadmissible under the issues raised by the pleadings, but the record contains no objection and exception raising the question of inadmissibility. Both parties seem to have been agreed by tacit consent to try that issue. There were also portions of the charge which were outside of the issues, but no exception was taken, and no appropriate request to charge made. The few exceptions which were taken by the appellant raise no question requiring the reversal of the judgment. Judgment (68 N. Y. Supp. 1139) affirmed, with costs. HELMER, Respondent, v. MOREY et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. October 8, 1901.) Action by Albert E. Helmer, as administrator, etc., against Newell Morey and another, as administrators. No opinion. Judgment affirmed, with costs. HERMAN, Respondent, v. LECY et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by William Hermau against Samuel Lecy and others. Levy & Unger, for appellants. E. A. Klein, for respond ent. PER CURIAM. The plaintiff's claim was for $79.13, under an alleged agreement for 5 per cent. commissions upon a sale of merchandise under an alleged employment by the defendants. The plaintiff, if his testimony was believed in the court below, was entitled to a judgment for his whole claim. If the defendants contention was credited, they were entitled to judgment. The learned justice awarded judgment for plaintiff in the sum of $26.07. This award is in no way supported by the proofs. An arbitrary decision cannot be upheld on appeal, because there is no evidence to support it and it is wholly without the principle of secundum allegata et probata. Judgment reversed, and new trial ordered, with costs to abide event. HERNANDEZ, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (City Court of New York, General Term. May, the Metropolitan Street Railway Company. Henry A. Robinson (John T. Little, Ed. D. O'Brien, of counsel), for appellant. Weeks, Battle & Marshall, for respondent. HASCALL, J. It seems to us that the respondent was clearly guilty of contributory negligence, as disclosed by the testimony introduced on his part; that, standing as he did when hit by the appellant's car was almost an invitation to accident, and that the verdict, being clearly against the weight of evidence, should have been set aside. Judgment and order appealed from reversed, and new trial ordered, with costs to appellant to abide the event. CONLAN, J., concurs. O'DWYER, J. I dissent. The case was one properly for the jury, and their verdict is sustained by a fair preponderance of the evidence, and should be affirmed, with costs. HINES, Respondent, v. COSTELLO, Appellant. (Supreme Court, Appellate Division, Second Department. July 25, 1901.) Action by Mark Hines against Patrick Costello. No opinion. Judgment and order unanimously affirmed, with costs. HOCHMAN V. HAUPTMAN. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by Abraham Hochman against Hyman Hauptman. No opinion. Motion denied, on payment of $10 costs, and, upon payment of $10 additional, leave given to apply to court below to open default. HOLL v. LONG et al. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by John Holl against William S. Long and others. No opinion. Motion denied, on payment of $10 costs, and, on payment of an additional $10, leave given to apply to court below to open default. See G8 N. Y. Supp. 522. HOLLAND TRUST CO. v. THOMSONHOUSTON ELECTRIC CO. (Supreme Court, Appellate Division, First Department. October 18, 1901.), Action by the Holland Trust Company against the Thomson-Houston Electric Company. No opinion. Motion granted. Questions to be certified to be presented on settlement of order. HOLMES, Respondent, v. FEIST, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Anna Holmes against Simon Feist. Howe & Hummel (Nathaniel Cohen, of counsel), for appellant. J. M. Lathrop, for respondent. No opinion. Judgment (68 N. Y. Supp. 622) affirmed, with costs. In re HONNECKER. (Supreme Court, Appellate Division, Second Department. October 21, 1901.) In the matter of the application of George A. Honnecker for admission to practice as an attorney and counselor at law. No opinion. Application granted. and 106 New York State Reporter HOROWITZ, Appellant, v. SMITH, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Adolph Horowitz against Charles F. Smith. J. R. Tressider, for appellant. J. E. Brodsky, for respondent. PER CURIAM. A review of the testimony shows that the court below, upon conflicting evidence as to the status and authority of Skinner, found in favor of the defendant. That conclusion necessarily resulted in a judgment for the defendant, and we are disinclined to disturb it, in face of the conflict in the proofs. Judgment affirmed, with costs. HOUGHTON, Rspondent, v. DE HART, Appellant, et al. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by Frank R. Houghton against John De Hart, impleaded with others. No opinion. Motion granted, without costs, and order resettled. HUGHES, Respondent, v. MARTIN, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Albert Hughes against Charles Martin. S. G. Derrickson, for appellant. Jeroloman & Arrowsmith, for respondent. PER CURIAM. The indisputable evidence showed that defendant, under an assumed name, employed the plaintiff as a broker in realty to perform services for him. Those services were rendered, and the defendant failed to pay the regular commission. We think the judgment awarded for such commission is correct. Judgment affirmed, with costs. INGLESE v. NEW YORK & S. I. ELECTRIC CO. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by Antonio Inglese against the New York & Staten Island Electric Company. No opinion. Motion granted, with $10 costs. INSKY, Respondent, v. MACHAT, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Solomon Insky against Benjamin Machat. M. M. Greenstein, for appellant. E. Rosenthal, for respondent. PER CURIAM. The infirmity in the trial, whereof this judgment is the result, is that there is no proof that defendant ever satisfied the debt after having reached majority. The only evidence is that he made a promise to one Schwartz in the summer of 1900. The defendant was born June 5, 1879. So the promise may have been made prior to June 5, 1900. Judgment reversed, and new trial ordered, with costs to abide event. IRVING SAV. INST. v. ROBINSON et al. (two cases). (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by the Irving Savings Institute against Julius A. Robinson and others. No opinion. Motion granted, with $10 costs. JACKSON, Appellant; v. BULIFANT et al., Respondents. (Supreme Court, Appellate Term. June, 1901.) Action by Joseph L. Jackson against Joseph Bulifant and others. Howard Ellis, for appellant. Vincent Rosemon, for respondents. PER CURIAM. All of the sales, except those to Worth & Co. and Lewis Marks, were evidenced by written sales notes drawn by plaintiff himself. From these sales notes it appears that the so-called sales were conditional upon the buyer's approval of the goods. They d not approve them, and consequently no sale was effected. The plaintiff earned no commis sions upon these transactions. As to the Worth and Marks items, the evidence was conflicting, and we see no reason to disturb the finding of the justice. Judgment affirmed, with costs. JACOBSEN, Respondent, v. BUCKLEY, Appellant. (City Court of New York, General Term. May, 1901.) Action by Ernest O. Jacobsen, trading under the firm name of Jacobsen & Co. against Wilfred Buckley, trading under the firm name of Samuel Buckley & Co. Reed, Simpson, Thacher & Barnum (Nathan A Smyth, of counsel), for appellant. Howard R. Bayne, for respondent. CONLAN, J. The action was brought to recover the difference between the market value of a quantity of ore and the amount paid on account thereof, the said ore being claimed by plaintiff to have been an overdelivery. The record presents no charge of the trial judge, and we assume, therefore, that the case was submitted to the jury upon all the evidence, and that such submission was acceptable to the defendant. The appellant presents three questions for review on this appeal, and asks for a reversal of the judgment because-First, there was no evidence, as he says, to show that any ore was delivered which was not required to be delivered under the contract; second, that, if more ore was delivered than the contract required, there is no evidence to show that such overdelivery was unintentional and by mistake; third, that before the mistake, it any, was made, this ore, as the defendant claims, had been sold by the plaintiff to other parties, and the plaintiff for that reason had neither property nor possession therein entitling him to recover any value in this action. As to the first ground, we find in the record a distinct state ment by the plaintiff that this overdelivery was a subject of conversation between the parties, and at the time of settlement for the delivery under the contract is said to have been left for future adjustment. As to the second ground, it is also in evidence that the plaintiff had endeavored to find and locate this quantity of missing ore, and the attention of the defendant was called to the fact that the plaintiff claimed it as an unintentional delivery, and demanded pay for such excess at the market value at that time, which was refused. It is equally true that the defendant claims to have paid for all ore delivered under the contract, but at the same time he admits that 1,194 tons were delivered, whereas the contract was for 1,067 tons. As to this excess of 127 tons, the theory of the defense is that there was a custom that a variation in quantity of from 1 to 10 per cent. was not considered as an overdelivery. The evidence on this latter point is vague and uncertain. As to the third ground, it appears that a contract for the delivery of the excess ore, which, it is claimed, plaintiff had sold to other J parties, and for which he seeks to recover, as is alleged, of this defendant, was to be performed at Antwerp, Belgium, by a delivery there, and, if that be the case, then there was no transfer of ownership by the plaintiff of the ore in question. Under the third ground of objection, within the rule laid down in Gilbert v. Railroad Co., 4 Hun, 378, and McDonald v. Hewett, 15 Johns. 347, 8 Am. Dec. 241, the whole case having been submitted to the jury without objection, the defendant should be held to the consequences and not now be heard to complain of the result of their deliberations. We have examined the whole case with considerable care, and find nothing therein which calls for an interference with the result obtained in the trial court. Judgment and order appealed from must be affirmed, with costs. Judgment and order affirmed, with costs. - O'DWYER, J., concurs. JOYCE, Appellant, v. JOYCE et ux., Respondents. (Supreme Court, Appellate Division, Fourth Department. November 12, 1901.) Action by Luke H. Joyce against Henry D. Joyce and wife, commenced on the 22d day of September, 1900, to recover from the defendant Henry D. Joyce the sum of $1,000, with interest from April 4, 1900, and to have said sum declared a lien upon a certain house and lot situate in the city of Buffalo, N. Y., described in the complaint, the premises sold, and out of the proceeds that there be paid to the plaintiff said sum and the expenses of sale, together with the costs of this action; it being alleged that said sum was wrongfully obtained from the plaintiff by said defendant on or about said 4th day of April, 1900, and was expended in payment for said house and lot, which he purchased, the deed of which was taken in his name. The defendant by his answer admits receiving said JAEGER v. KOENIG. (Supreme Court, Ap-sum of money from the plaintiff, and that he pellate Division, First Department. October 18. 1901.) Action by Marie L. Jaeger against John H. Koenig. No opinion. The stipulation must be recited in order. JOHN KRODER & HENRY REUBEL CO., Appellant, v. FOERY et al., Respondents. (Supreme Court, Appellate Term. June, 1901.) Action by the John Kroder & Henry Reubel Company against Martin Foery and others. T. Prince, for appellant. S. Feuchtwanger, for respondents. PER CURIAM. The testimony plainly shows a renting by plaintiff to defendants of the store for one year to January 1, 1901. The defendants vacated the premises some three months before their term expired, for purposes of their own, and have not paid the rental due, amounting to $120. The plaintiff was entitled to a judgment for that amount. We can imagine no reason for a dismissal of the complaint. Judgment reversed, and new trial ordered, with costs to abide the event. JOHNSON, Appellant, v. MASON, Respondent. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) Action by Christian P. Johnson against Cassity E. Mason. No opinion. Judgment and order unanimously affirmed, with costs. JONES V. NIAGARA JUNCTION RY. CO. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) Action by William H. Jones against the Niagara Junction Railway Company. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to the court of appeals denied. JONES, Respondent, v. THIRD AVE. R. CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by David T. Jones against the Third Avenue Railroad Company. Hoadly, Lauterbach & Johnson, for appellant. L. G. Spalding, for respondent. No opinion. Judgment affirmed, with costs. applied the same in payment of the purchase price of said premises, but denies that he obtained it wrongfully, and alleges that it was a gift to him by the plaintiff, who is his father, in consideration of love and affection, and that it became his money and property, and that he had the right to expend it in the purchase of said house and lot in the manner in which he did. The defendant Catherine Joyce is the wife of Henry D. Joyce, and is made a party defendant only for the purpose of foreclosing her dower right in the premises. The learned trial court found the facts substantially as alleged by the defendant, and the only question presented by this appeal of plaintiff is whether or not the proof justifies such decision. Arthur D. Hickman, for appellant. Adolph Rebadow, for respondents. PER CURIAM. Judginent affirmed. MCLENNAN, J. (dissenting). At the time the transaction which is the subject of this controversy took place the plaintiff was 68 years of age. He had been a member of the police force of the city of Buffalo for 16 years, and until about 5 years before the time in sion of $33.33 a month on account of ill health, question, when he was retired upon a pensince which time he has not been engaged in any business or occupation. His entire property consisted of $2,000 in money, which was on deposit in the Erie County Savings Bank, and some vacant lots in the city of Buffalo worth comparatively little; their exact value not appearing. The plaintiff's wife had died several years before, and since his retirement from the police force he has lived with friends a considerable portion of the time, but made his home with his son, the defendant. and, while living with him, paid for his board the same as any other person would have done. The plaintiff also had two daughters,-one a Mrs. Hobern, who resided in Chicago, and a Mrs. Laughlin, who resided with a Catholic priest named Rengel, who was a personal friend and the spiritual adviser of the plaintiff. Immediately prior to the 21st of March, 1900, the plaintiff was residing with the defendants at the home of his son, and, so far as appears, their relations were most friendly and cor |