sumably to reimburse him for the loss sustained by relinquishing
his deposit. After three years plaintiff made a demand upon
defendant for a return of the deposit, which being refused this
action was brought to recover. Held, that, assuming that the con-
duct of plaintiff operated as a waiver of a formal tender by defend-
ant of a contract for his signature, his right to demand a return
of the deposit, considering the same as security to reimburse defend-
ant for plaintiff's failure to make the proposed contract, accrued
on the last day of the proposed year of employment, subject to the
right of defendant to set off any damage sustained by plaintiff's
failure to execute the contract. Schleifer v. George & Rosenbaum
Co., 508.

sales Automobiles

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7. Conditional
Damages - Negligence.—
A vendee in possession of an automobile under a contract of con-
ditional sale is entitled to maintain an action to recover damages
thereto caused by the negligence of a third party. Carter v. Black
& White Cab Co., Inc., 680.

8. Rescission of - Actions upon-Evidence· · Acceptance.-
Where an order for certain feathers is divided into sections, each
designated by a separate and distinct style number, white, black and
colored feathers being included in each section, and in an action to
recover the balance due it appears that defendant while rejecting
some because they did not correspond with the sample in that they
were imperfectly dyed retained part of those enumerated in each
of the four sections, it must be held as matter of law that she
accepted the entire shipment. Stein v. La Plante, 698.

9. Check given for rent — Mistake as to street number of leased
premises Lack of consideration. Malone v. Hirsch, 724.

See Bonds; Carriers; Corporations; Damages; Judgments; Lease;
Mechanics' Liens; Pleading; Promise; Services.

CONVEYANCES.

See Deeds.

CORPORATIONS.

Foreign, required to obtain license to do business within the
state Contracts Pending — Statutes. A statutory provision
which requires a foreign corporation to obtain a license to do busi-
ness within this state is a condition precedent to the bringing of
any action on a contract made by it within the state and compliance
with such condition precedent must be alleged and proved at the
trial and for failure so to do the complaint must be dismissed even
though the answer does not plead noncompliance with the statute as
a defense. Upon testimony that plaintiff is a manufacturer of sheet
metal specialties, that it maintains a warehouse and office in this
state and salesmen to sell goods, the court must assume, in the
absence of proof to the contrary, that plaintiff is a stock corporation.
American Can Co. v. Grassi Contracting Co., Inc., 230.

See Accounting; Contracts; Judgments; Negotiable Instruments;
Process.

COSTS.

See Contempt; Foreclosure; Security for Costs.

COUNTY COURTS.

See Jurisdiction.

COUNTERCLAIM.

1. When allowed Negotiable instruments - Assignments -
Pleading. In an action upon a promissory note assigned to plain-
tiff by the payee after maturity and while he was not a holder in
due course, a counterclaim in favor of the defendant maker against
the payee existing at the time of the assignment must be allowed.
Woods v. Sizer, 453.

2. Interposition of - Municipal Court of city of New York-
Negligence Landlord and tenant· Municipal Court Code, §§ 84,
85, 86. There is no limit upon the amount for which a counter-
claim may be interposed under section 86 of the Municipal Court
Code. Under sections 84 and 85 of the Municipal Court Code, a
counterclaim sounding in tort may be interposed in an action on
contract. In an action for rent and water charges brought in the
Municipal Court of the city of New York the defendant may inter-
pose a counterclaim based upon the plaintiff's breach of the con-
tractual obligation contained in the written lease, and the mere fact
that the pleading also contains allegations of the plaintiff's failure,
neglect and refusal to properly live up to those obligations does not
change the nature of the claim from contract to tort, as the alle-
gations with respect to negligence may be treated as surplusage
Where the tenant for a counterclaim alleges that solely because of
plaintiff's failure, neglect and refusal to repair the premises after
a fire large quantities of water leaked through the roof into and
upon the leased premises, causing damage to the tenant's merchan-
dise, the tenant is not confined to the difference in rental value of the
premises as they were and as they would have been if the landlord
had fulfilled his covenant to repair, but recovery may be had upon
the basis of damage to the merchandise. Security Mortgage Co. v.
Kallis, 693.

3. Municipal Court of city of New York — Actions Negli-
gence Pleading Evidence.- In an action brought in the
Municipal Court of the city of New York to recover rent the defend-
ant, who counterclaims for the amount of damage to his goods dur-
ing his occupancy of the leased premises by reason of defective
plumbing due to the alleged negligence of the plaintiff who agreed
to pay the amount stated in the counterclaim, is entitled to offer
evidence in support of his counterclaim, and the exclusion of testi-
mony, under a ruling that a counterclaim in negligence could not
be pleaded in the action, was error calling for the reversal of a
judgment in favor of plaintiff. Abrams v. Costas, 714.

CRIMINAL LAW.

Indictment for violation of Donnelly Anti-Trust Law - Photo-
engraving not an article or commodity in common use Motion
to dismiss indictment granted.— The Donnelly Anti-Trust Law
(General Business Law, §§ 340, 341) was intended to prevent

CRIMINAL LAW - Continued.

restraint of trade and the creation of monopoly in articles of trade,
and the essential element of trade is that such articles are to be
bought and sold. Not all contracts affecting the prices of articles
or commodities are denounced by said statute but only such as affect
the price of articles or commodities in common use. Under no
definition can a photo-engraving be called a commodity and, even
conceding that it is, it cannot be said to be in common use, a dis-
tinction emphasized by the statute. People v. Epstean, 476.

See Disorderly Conduct; Indictment.

DAMAGES.

Evidence Trial

1. Liability for · Measure of — Contracts
Verdict. As a result of subway construction the walls of plaintiff's
building on their several fronts settled, in varying degrees, structural
cracks developed in walls and roof and the floors were cast out of
level. In an action for damages brought against the subway con-
tractor, engineers and architects testified that the building could
not be restored to the condition it was in before the construction of
the subway was commenced. The subway contractor had agreed
with the city of New York that it would be liable for any damage
or physical injuries that might in the course of construction be
done to any foundation walls, etc., and would do all additional and
incidental work that might be necessary for the reconstruction and
restoration of all overhead structures which might be disturbed or
injured "to a useful, safe, durable and good condition as existed
before construction shall have been begun." There was evidence as
to the cost of building a similar structure but as, under the rule laid
down in Hartshorn v. Chaddock, 135 N. Y. 116, that could not
legally be taken as a measure of damages, the depreciation in the
market value of the property was taken as such measure. The
undisputed testimony of experts, the only evidence available to
plaintiff, was to the effect that there was serious depreciation in
market value. Held, that to admit depreciation while withholding
reasonable compensation would be a denial of justice. That, as the
sum fixed by the jury over and above that admitted by the defendant
as due for repairs was grossly disproportionate to that established
by the weight of evidence, the verdict should be set aside. Hamilton
Building Co. v. Rapid Transit Subway Const. Co., 433.

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2. Evidence sufficient to warrant a recovery of Water and
watercourses — Actions. The lay evidence corroborated by the
testimony of the experts being sufficient to warrant a recovery of
damages for pollution prior to the installation of a liquid chlorine
system and a screen at defendant's plant, plaintiffs may have
recovery for diminished rental value from that time to six years
prior to the institution of the present action. Plaintiffs are also
entitled to recover for loss of cattle during the same period. Driscoll
v. American Hide & Leather Co., 612.

3. Proof of - Municipal Court of the city of New York - Auto-
mobiles Street railways Judgments.- Where in an action
brought in the Municipal Court of the city of New York against a
taxicab company and a street railway company to recover damages
to plaintiff's automobile it appeared that when it was halted by a

DAMAGES Continued.
policeman the only vehicle behind it was a taxicab of the defendant
cab company which stood partly on the street railway track and the
only vehicle behind the cab was a trolley car of the defendant rail-
way company, and it further appears that something struck the
taxicab and hurled it forward and upon plaintiff's car, and upon
proof of damage both plaintiff and defendants rests, the entry of
two judgments, one in favor of plaintiff against the taxicab company
and the other in favor of the railway company against the plaintiff,
is unauthorized and both of said judgments will be reversed and
judgment directed for plaintiff against the railway company and
for the taxicab company dismissing the complaint on the merits.
Bloch v. Black & White Cab Co., 677.

See Appeal; Carriers; Landlord and Tenant; Negligence; Verdict.
DECEDENT ESTATE LAW.

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Accounting Insurance (life)·
- Public adminis-
Next of kin
trators. In an accounting proceeding it appeared that the decedent
left no wife, no children, no representatives of a child, no next of
kin and no children of his deceased wife, him surviving, and that he
died possessed of personal property only including two policies of
insurance in which his wife was stated to have been the beneficiary,
and a bank account in her name in trust for decedent. His wife
who predeceased him left a sister, two brothers, nephews and nieces.
In denying their claim that they should be deemed the decedent's next
of kin for purposes of distribution, Held: That, under the terms of
the policies of insurance, the interest of the wife was merely a con-
tingent interest which would vest upon the prior death of the dece-
dent, provided he made no change in the beneficiary; but as the
wife died before the deceased she never became vested with the
right to the death benefit and hence the decedent did not receive it
from her upon her death. That the form of a deposit in the bank
created a tentative trust revocable at will by the decedent's wife at
any time before her death; that as she predeceased the decedent the
trust became irrevocable and the moneys evidenced by the deposit
vested in the deceased and were not not received by him "by will or
by virtue of the laws relating to the distribution of the personal
property of the deceased person." Matter of Hammer, 193.

DECEDENTS' ESTATES.

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Sale of, for payment of debts Preference of claim for funeral
expenses over all other debts - Executors and administrators ·
Surrogate's Court — Foreclosure of mortgages — Actions — Judg-
ments. The husband of a niece of a decedent had a just claim
against his estate for funeral expenses which he had paid. The
administratrix failed to keep her agreement that if the claimant
would refrain from instituting a proceeding in the Surrogate's Court
to sell decedent's real estate she would sell the same at private sale
and pay the claim out of the proceeds. Held, that claimant having
desisted from his remedy in Surrogate's Court until it was barred
by the statute, the agreement of the administratrix was effective to
create a charge or lien upon the real estate to the extent of the claim
for funeral expenses. In the meantime, upon the foreclosure of the
mortgage given by decedent upon certain real estate in another state,

a judgment for deficiency was entered against decedent, upon which
an action was brought in this state against his administratrix and a
recovery obtained, and under an execution issued upon said judg-
ment decedent's real estate in this state was sold and bought in by.
the judgment creditor. The administratrix having nothing with
which to pay the claim for funeral expenses, the present action was
brought to have a lien declared upon the real estate in this state
for the claim for funeral expenses. Held, that the land upon which
the mortgage was foreclosed being the primary fund for the payment
thereof, it would be inequitable to postpone the claim of plaintiff
herein to that of the deficiency judgment creditor of the decedent,
the claim for funeral expenses having preference over all other
debts. Barter v. Hawksworth, 242.

See Mandamus.

DEEDS.

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Mort-

1. What insufficient grounds for setting aside transfer-
gages-
Actions Evidence · Fraudulent conveyances.- Where a
man while solvent transfers property to his wife for a valuable con-
sideration without intent to defraud his creditors, and such creditors
as he had at the time are paid in full, the fact that some years subse-
quently he incurred debts and became insolvent is not sufficient
ground for setting aside such transfers to his wife as being fraudu-
lent as against subsequent creditors. The plaintiff and W., the two
testamentary trustees of N.'s estate, with full knowledge of all
parties interested therein, from time to time for many years had
borrowed money from the estate giving interest bearing notes for any
money they borrowed. Later, in order to pay an indebtedness of
$10,000 to the estate on such notes, W. induced his wife to join in a
$7,000 mortgage and she paid to him, by assigning to him two mort-
gages and a note, an amount aggregating $3,204.82, and he conveyed
to her certain real estate. After payment of the indebtedness to N.'s
estate with the money raised on the mortgages and note, W. had
$20,000 worth of property, including the value of his interest in the
income of said estate, and when he died insolvent more than ten years
thereafter he had again become indebted to said estate in the sum of
after he had again become indebted to said estate in the sum of
$4,100 borrowed money. In an action by plaintiff, as sole surviving
trustee, to set aside the conveyances of real estate by W. to his
wife, held, that the same were made for a good and valuable con-
sideration, and the evidence failing to establish any fraud or any
fraudulent intent on the part of either the grantor or his wife, the
grantee, in making or receiving said transfers, the complaint will
be dismissed, with costs. Park v. Cowan, 392.

2. Action to set aside Power of attorney - Evidence — Burden
of proof - Conveyances.- Where transactions between an enfeebled
mother over ninety years of age and her son, a strong and dominat-
ing personality about sixty years of age, who had been acting for
many years as her business agent and attorney in fact under a
general power of attorney, result in gifts from her to him of prac-
tically all her property, the burden of proof in an action to set
aside such transfers is upon the defendant to rebut the presumption