Second Department, June, 1906. [Vol. 113. to the platoon. The conviction should be affirmed. Jenks, J., concurred; Woodward, Hooker and Rich, JJ., concurred in result. Determination confirmed, with costs. Harris Yacknowitz, Respondent, v. Isaac W. Spiro, Appellant. Assignment agreement to assign contract for purchase of property construed — consideration paid to assignor for such assignment does not impose on him the pay. ment to the vendor of the consideration for the actual transfer of the property. Appeal from a judgment in favor of the plaintiff after a trial in the Municipal Court without a jury. The action was for damages for an alleged breach of contract. GAYNOR, J.: 1. The defendant entered into a written agreement with the plaintiff on December 31, 1904, to assign to him a contract of purchase of three lots of land which the defendant expected to get of a third person. The price to be paid by the plaintiff was $1,550, of which $50 was paid as a deposit to be refunded if the contract was not got in seventeen days, $150 was to be paid on the delivery of the assignment, $400 on closing title with the vendor third person, and $950 by the giving of a bond and mortgage for that amount to the defendant on the plaintiff taking title of said vendor. 2. On January third the defendant got the contract of the vendor for the three lots at a purchase price of $1,050, $50 of which was paid at the signing of the contract, $475 was to be paid on the deed day and $525 by the giving back of a purchase money bond and mortgage at that time. 3. On January ninth the plaintiff and the defendant entered into a written agreement by which the latter assigned the said contract of purchase to the plaintiff for $1,075 to be paid by the plaintiff to him, viz., $125 on the signing, and a purchase-money bond and mortgage for the balance of $950 to be given by the plaintiff to the defendant on the taking of title. The defendant agreed in the said instrument to pay to the sail vendor the sum of $525 which the defendant had agreed in the contract of purchase with the said vendor to pay him by a purchase-money bond and mortgage. A recapitulation shows that by the first instrument (1) the plaintiff was to pay $1,550 for the assignment of the contract of purchase and the land, and that by the third instrument (3), the actual assignment of the contract, the defendant was to get only $1,075. But this was for the bare assignment, and left two payments of $475 and $525 (2) to be made to the vendor of the property on the deed day. The defendant agreed in the assignment to pay the one of $525, and nothing is said of the other. That ($475) was, therefore, for the plaintiff to pay. It, added to the $125 he had paid the defendant on getting the assignment, and the $950 for which he had to give a bond and mortgage on the land, made up the total of $1,550 which he had agreed to pay for the assignment and the land in his preliminary agreement. But on the deed day he refused to pay the said $475 and title was refused him. He sued the defendant for damages for a breach of contract for not paying it, and got judgment for $175, viz.. the $125 he paid on getting the assignment and $50 he claims to have paid his counsel for examining the title. No other item was mentioned, and as there was no complaint, oral or written, other than a so-called bill of particulars which gives no item or ground of damage, it is difficult to see on what basis the action was put. But it is enough that the plaintiff is the one who broke the contract and not the defendant, and judgment should have been for the defendant. It will be observed that the foregoing figures making up the total of $1,550 at the end leaves out the $50 paid as a deposit by the plaintiff on the first agreement (1). But he made no claim for that at the passing of the title nor on the trial; he simply refused to pay anything, claiming that the $1,07) was all that he had to pay, and that that was made up by the $125 paid in cash to the defendant and the mortgage for $950 which he had to give to the defendant. On the same principle, if he had paid the defendant by agreement only $1 for the assignment, he could have claimed on the deed day that that was all he had to pay, that he did not have to pay the purchase price fixed by the contract. The judg ment should be reversed. Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. In the Matter of the Application of Frank Wasserman for Admission to the Bar Application for admission to the bar granted. Present - Hirschberg, P. J. Hooker, Gaynor, Rich and Miller, JJ. App. Div.] Second Department, June, 1906. The People of the State of New York, Respondent, v. Bertha Williams, Appellant. Motion denied. Present Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ. George J. Shroeder, Respondent, v. Ehler Meyer, Appellant.- Motion granted and order resettled by inserting a recital that the appeal was argued before five justices of this court, and the decision concurred in by four, the remaining justice having, prior to the decision, been appointed a member of the Court of Appeals. (See Town of North Hempstead v. Eldridge, 112 App. Div. 893.) Present Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ. Mary A. Schultz, Respondent, v, The Greenwood Cemetery, Appellant.-Motion for leave to appeal to the Court of Appeals denied. Present -- Hirschberg, P. J.. Hooker, Gaynor, Rich and Miller, JJ. Charles W. S. Ahearn and George Dorrlamm, etc., Respondents, v. George Schmidt, Appellant.- Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that the plaintiffs failed to show that they were the procuring cause of the sale for which they have recovered commissions. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ, concurred. Belle H. Anstead, Respondent, v. Willis Woodward and I. Waldman Teschner, Appellants. Order affirmed on argument, with ten dollars costs and disbursements. Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred. Aggie Bartkus, Appellant, v. Brooklyn Heights Railroad Company, Respondent.-Judgment of the Municipal Court unanimously affirmed, with costs. No opinion. Present - Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ. A. B. Barr & Co., Respondent, v. Fannie H. Schiff, Appellant.-Judgment of the City Court of Yonkers modified by deducting fifty-two dollars from the amount of the additional allowance, and as modified, judgment and order affirmed, without costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Joseph Berman, Appellant, v. William Simpson & Company, Respondent.— Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Mary Ann Blanck, Respondent, v. Charles M. Preston, as Receiver of New York Building Loan Banking Company, Appellant.-Judgment modified by striking out the provision for the payment to the plaintiff of $1,159.14, and by changing the provision for a warranty deed to one for a receiver's deed, and as thus modified, affirmed, without costs. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Harry Block, Appellant, v. New York Electrical Workers' Union, Respondent. Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Mary Brechtlein, Respondent, v. The Greenwood Cemetery, Appellant.-Judg. ment and order affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Jacob Brunkhorst, Appellant, v. Wilhelmina Herrmann, as Executrix, etc., of George A. Herrmann, Deceased, and Others, Respondents.— Judgment affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Daniel Buckley and Others, Respondents, v. New York and Boston Dyewood Company, Appellant.-Judgment affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. George M. Caulfield. Appellant, v. Robert A. Caulfield and Others, Respondents.-Judgment affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks and Rich. JJ., concurred. Florence S. Clark, Respondent, v. Elizabeth H. Sprague and Others, Defendants. William G. Schmidt and Others, Appellants. (No. 1.)-Order affirmed, with ten dollars costs and disbursements on authority of Clark v. Sprague, No. 2 (ante, p. 645), decided herewith. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Samuel Cohen, Respondent, v. Max Hellar, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Norah Coleman, as Administratrix, etc., of James Coleman, Deceased, Respondent, v. New York City Railway Company, Appellant.-Judgment and Second Department, June, 1906. [Vol. 113. order unanimously affirmed, with costs. No opinion. Present - Woodward, Jenks, Hooker and Rich, JJ. The Columbus Trust Company, Respondent, v. George Moshier, Appellat.— Judgment affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. Walter Travers Daniel, Appellant, v. Manhattan Life Insurance Company of New York, Respondent.-Judgment affirmed, with costs. No opinion. Jenks, Hooker, Rich and Miller, JJ., concurred. Patrick W. Cullinan, as State Commissioner of Excise, Respondent, v. Federal Union Surety Company, Appellant.-Order affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Wilmot M. Smith at Special Term. (Reported in Misc. Rep.-.) Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Margaret C. Delile, Respondent, v. The Long Island Realty Company and Others, Appellants. — Judgment affirmed, with costs. No opinion. Hirschberg, P. J.. Woodward, Jenks, Hooker and Miller, JJ., concurred. Charles E. Dorfuss, Respondent, v. Manhattan Railway Company, Appellant. -Judgment and order unanimously affirmed, with costs. No opinion. Present -Hirschberg, P. J.. Woodward, Jenks, Hooker and Miller, JJ. Walter F. Duckworth, Appellant, v. Michalino Shimko, Respondent — Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, on the ground that if the plaintiff was entitled to recover, he was entitled to a commission of two and one-half per cent as agreed to by the borrower. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Thomas M. Farley, Respondent, v. Samuel Mundheim Company, Appellant.Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Annie Ficarro, as Administratrix, etc., of Angelo Ficarro, Deceased, Respondent, v. New York and Queens Electric Light and Power Company, Appellant. Judgment and order unanimously affirmed, with costs. No opinion. Present Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ. William H. Flaherty, Respondent, v. Manhattan Transit Company, Appellant. Judgment and order unanimously affirmed, with costs. No opinion. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ. Louise R. Fowler, as Executrix, etc., of George R. Fowler, Deceased, Appellant, v. Northrup Durham, Respondent. - Judgment unanimously affirmed, with costs. No opinion. Present-Woodward, Jenks, Hooker, Gaynor and Rich, JJ. McClelland Freer, Respondent, v. The Crane Giles Company, Appellant.Judgment and order affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Henry E. Frey, as Administrator, etc., of Frederick Frey, Deceased, Appellant, v. Frank A. Barnaby and William H. Van Schaick, Who Are Sued with the Knickerbocker Steamboat Company, Respondents.- Order affirmed, with ten dollars costs and disbursements, on the authority of Cassavoy v. Pattison (101 App. Div. 128). Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Rose Frey, Appellant, v. Francine Fougera and Renee G. Fougera, as Administratrices of Cecile Leonide Fougera, Deceased, Respondents.- Judgment affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. William Gleichmann, Respondent, v. Frederick Theiss, Sr.. Appellant.- Judg. ment and order affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Solomon Goldenberg, Appellant, v. Jacob Zirinsky, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Sarah Goldman, Respondent, v. Barnett B. Goldberg, Appellant.— Judgment affirmed, with costs. No opinion. Hirschberg, P. J., Hooker, Gaynor, Rich and Miller, JJ., concurred. Richard Goodwin, Appellant, v. Wilhelmina Ochs, Respondent.-Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. App. Div.] Second Department, June, 1906. James C. Gowdey, as Administrator, etc., of Harriet L. Gowdey, Deceased, Appellant, v. Erie Railroad Company, Respondent.- Judgment and orders unanimously affirmed, with costs, on the authority of McSweeney v. Erie R. R. Co. (93 App. Div. 496). Present - Jenks, Hooker, Gaynor, Rich and Miller, JJ. Minnie Guth, Respondent, v. Joseph Barth, Appellant.- Order of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. No Carrow Harris, Respondent, v. Metropolitan Street Railway Company, Appellant. Judgment and order unanimously aflirmed, with costs. opinion. Present - Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ. Abner J. Haydel, Respondent, v. Howard Gould, Appellant. - Judgment and order unanimously affirmed, with costs. No opinion. Present - Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ. August Helmke, Appellant, v. The City of New York, Respondent. (Action No. 1)-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. August Helmke, Appellant, v. The City of New York, Respondent. (Action No. 2.)-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. In the Matter of the Application of Patrick W. Cullinan, as State Commissioner of Excise, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 26,569, issued to Hugo Bauer, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. In the Matter of the Application of John W. Dayton for Revocation of Letters of Administration Granted to Henry E. Van Dyke_on_the_Personal Estate of Mathilda De Marais Van Dyke, Deceased. Henry E. Van Dyke, Appellant, v. John W. Dayton, Respondent.- Decree of the Surrogate's Court of Kings county reversed, with costs, on the ground that the husband was not disqualified to act. as his wife's administrator, and the petition for revocation of letters dismissed, with costs. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. In the Matter of Proving the Last Will and Testament of Johanna Doelger, also Known as Johanna Doelger Schneider, Deceased, as a Will of Real and Personal Property. George Schneider and Johanna Fensterer, Appellants; Charles Reinhardt, as Executor, etc., of Johanna Doelger. Deceased, Respondent.— Decree of the Surrogate's Court of Kings county affirmed, without costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. In the Matter of the Application of Henry Escher, Jr., as Special Guardian of Edythe M. Kainer, an Infant, Respondent, for the Removal of Hugo Wantzelius, as General Guardian of Said Infant, Appellant. Etna Indemnity Company, Appellant. In the Matter of the Application of Henry Escher, Jr., as Special Guardian of Camille J. N. Kainer, an Infant, Respondent, for the Removal of Hugo Wantzelius, as General Guardian of Said Infant, Appellant. Etna Indemnity Company Appellant. Decree of the Surrogate's Court of Kings county affirmed, with costs. No opinion. Hirschberg, P. J., Jenks, Hooker, Gaynor and Rich, JJ., cncurred. In the Matter of the Transfer Tax upon the Estate of Veronica Mock, Deceased. The Comptroller of the State of New York, Appellant; William B. Davenport, Former Public Administrator of Kings County, and Another, Respondents.-Order of the Surrogate's Court of Kings county reversed, without costs, on the authority of Matter of Corbett (171 N. Y. 516). Jenks, Hooker, Gaynor and Rich, JJ., concurred. Julius Jacoby, Appellant, v. Samuel Jacoby and Emma Wyler, Appellants, Impleaded with Henrietta Jacoby and Others, Respondents.- Judgment affirmed, with costs, on opinion of Mr Justice Kelly at Special Term (Reported in 47 Misc. Rep. 427.) Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Ann Eliza Jones, Respondent, v. Courtlandt D. Moss, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, Hooker, Gaynor, Rich and Miller, JJ. Anna M. Killmer, Respondent, v. New York City Railway Company. Appel lant. Judgment and order denying motion for new trial unanimously affirmed, without costs. No opinion. Present - Woodward, Jenks, Hooker and Rich, JJ. Order granting extra allowance reversed, without costs, for want of power Second Department, June, 1906. [Vol. 113. in the trial court to grant the same. Woodward, Jenks, Hooker and Rich, JJ., concurred. Sydney H. Palmer, as Receiver, etc., Appellant, v. Nassau Brewing Company, Respondent. Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Daniel S. Peters, Appellant, v. Philip Embury, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Wilber F. Price and Others, Doing Business under the Firm Name of LyonTaylor Company, Appellants, v. George R. Montfort and Others, Doing Business under the Firm Name of Walters & Montfort, Respondents. - Judgment of the Municipal Court affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. The People of the State of New York, Respondent, v. Thomas Abbett, Appellant. We find no evidence in the record of criminal intent. The judgment of conviction is reversed and a new trial ordered. Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ., concurred. The People of the State of New York, Respondent, v. Thomas F. Corbalis, Appellant. Judgment of conviction affirmed. No opinion. Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ., concurred. The People of the State of New York, Appellant, v. Mercantile Co-operative Bank, Respondent.- Final order settling accounts and order appointing referee affirmed, without costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. The People of the State of New York ex rel. Joseph L. Bien, Appellant, v. Martin W. Littleton, President of the Borough of Brooklyn, Respondent.Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, Gaynor, Rich and Miller, JJ., concurred; Hooker, J., dissented, on the ground that the hearing given the relator was not such as is contemplated by the statute.* The People of the State of New York ex rel. Inter-State Paving Company, Appellant, v. Herman A. Metz, as Comptroller of the City of New York, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Hirsch Clarence E. Reed, Respondent, v. The Bender-Martin Company, Appellant.— Judgment of the Municipal Court affirmed, with costs. No opinion. berg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. George R. Jones and George Aubinger, Respondents, v. The Long Island Railroad Company, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward and Hooker, JJ., concurred; Jenks and Miller, JJ., dissented. Gustav A. Kirchner, Respondent, v. John Loughlin, Appellant.- Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred. Benjamin Lahy, as Administrator, etc., of Isabella Lahy, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant. Case settled since argument. Appeal dismissed, without costs. Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ., concurred. Lancaster Sea Beach Improvement Company, Respondent, v. The City of New York, Appellant.- Interlocutory judgment affirmed, with costs. No opinion. Woodward, Jenks, Hooker, Gaynor and Rich, JJ., concurred. Francis Loehr, Appellant, v. Henry Reiners, Respondent.- Judgment modified by striking out the words on the merits," and judgment as modified and order unanimously affirmed, without costs. No opinion. Present - Hirschberg, P. J., Woodward, Jenks, Hooker and Miller, JJ. John J. McCormack, Respondent, v. Ferdinand Langer, Appellant.-Judg ment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. Frank Messina, Sometimes Known as Frank De Cola, Respondent, v. The United States Mortgage and Trust Company, as Receiver of the Brooklyn Wharf and Warehouse Company, Appellant. Judgment and order reversed *See Greater New York charter (Laws of 1901, chap. 466), § 1543.-[ REP. |