attention of the court was not drawn, through the neglect or inadvertence of counsel. Rule 16, Gen. Term, Com. Pl. N. Y. The opinion handed down at the time of the decision of the appeal herein (4 Misc. Rep. 528, 24 N. Y. Supp. 821) refutes the claim that either of the grounds above specified exists, and the plain purport of this motion is no other than to secure a second hearing upon the same points and facts which have been exhaustively examined and discussed in the opinion of the court. Motion for reargument denied, with costs. SCANLON, Respondent, v. H. B. CLAFLIN CO., Appellant. (Common Pleas of New York City and County, General Term. 1893.) Action by John Scanlon against the H. B. Claflin Company. Kneeland & Stewart, for appellant. Wm. J. A. Caffrey, for respondent. December 4, GIEGERICH, J. The plaintiff's evidence is insufficient to support his cause of action. It is conceded that the agreement as to extra compensation for the year 1889 was executed, but the testimony of the plaintiff with reference to the arrangement for the year 1890 fails, in our opinion, to establish a like contract for that year, or for the years following. This testimony is to the effect that defendant's manager suggested that the extra compensation would be discontinued, and that there were "angry words," but no renewal of the previous year's agreement appears. Were it not for this admitted discord, a contract for similar compensation might be implied, but in the face of such disagreement it certainly would seem that the plaintiff did not justly rely upon any further compensation for his weekly work than his weekly wages. The case was insufficient at the time when plaintiff rested, and the error presented by the refusal to dismiss was not cured by evidence subsequently adduced. For these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event. FRABETTO et al., Respondents, v. CAMP, Appellant. (City Court of New York, General Term. November 27, 1893.) Appeal from trial term. Action by Paello Frabetto and Philomena Frabetto against Hugh N. Camp. From a judgment for plaintiffs, defendant appeals. Affirmed. Samuel E. Duggey, for appellant. Michael F. McGoldrick, for respondents. NEWBURGER, J. The plaintiffs hired a plot of ground at Sedgwick avenue and the old Boston road, in the city of New York, on which a frame house stood belonging to plaintiffs, and occupied the same. During plaintiffs' absence in the month of September, 1892, plaintiffs' house was broken into by a number of men, and filled with cement, and the property of plaintiffs injured and destroyed. It is claimed that the cement was the property of defendant, and was brought to the house by the agents of defendant, to be used in improvements on the farm on which the house stood. This action is brought to recover damages for such acts on the part of defendant and his agents. A careful examination of the appeal book fails to disclose any errors. The trial justice properly submitted the case to the jury, and there are no exceptions that would warrant us in disturbing the judgment herein. The judgment must therefore be aflirmed, with costs. PEOPLE v. EARLY et al. (Common Pleas of New York City and County, General Term. December 4, De Lancey Nicoll, for the People. 1893.) Miller, Peckham & Dixon, for defendants. No opinion. The judgment having been paid, as appears by the receipt of the district attorney, the order for its cancellation is granted. PEOPLE v. WILLIAMS et al. (Common Pleas of New York City and County, General Term. December 4. De Lancey Nicoll, for the People. C. J. Schampion, for defendants. 1893.) No opinion. Application granted. Forfeiture of recognizance remitted, and order to be entered restoring the sum deposited to the party depositing the same. PEOPLE v. CUNNINGHAM et al. (Common Pleas of New York City and County, General Term. December 4. De Lancey Nicoll, for the People. 1893.) No opinion. Application to vacate judgment entered on a forfeited recog nizance. It appearing satisfactorily that the people had lost no rights, or suffered expense, the application should be granted. PEOPLE v. SILVERMAN et al. (Common Pleas of New York City and County, General Term. December 4, De Lancey Nicoll, for the People. 1893.) PER CURIAM. The prisoner having been surrendered, and, upon confession, convicted and fined, and having paid his fine, a case is presented for the cancellation of the judgment against his surety when the application comes properly before us. But our rule 13 requires that eight days' notice shall be given the district attorney; and as, in this case, no notice whatever was given, the petition must be denied, with leave, however, to renew. Application denied, with leave to renew on notice to the district attorney. KOHLER, Respondent, v. CORDES, Appellant. (City Court of New York, General Term. November 27, 1893.) Action by David M. Kohler against Henry Cordes. Argued before NEWBURGER, VAN WYCK, and MCCARTHY, JJ. Charles Goldzier, for respondent. NEWBURGER, J. This is an appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial. This action was brought to recover for goods sold and delivered by plaintiff to defendant. The answer admits the sales at the prices stated, but alleges an extension of the time for the payment by reason of the acceptance by the plaintiff of defendant's three promissory notes for the amount of the purchase price, which had not matured at the time of the commencement of the action. The plaintiff, however, claimed that the defendant had been guilty of fraud in obtaining the merchandise and the extension of the credit, and therefore was authorized to rescind the credit, and sue for goods sold. The trial justice properly submitted the question of fraud to the jury, and a careful examination of the appeal book fails to disclose any error on the trial. Judgment must be affirmed, with costs. All concur. OETJEN, Respondent, v. FAJEN, Appellant. (City Court of New York, General Term. November 27, 1893.) Action by Herman Oetjen against Henry F. Fajen. Gumbleton & Hottenroth, for appellant. Foster, Hotaling & Klenke, for respondent. MCCARTHY, J. This is an appeal from an order denying a motion to vacate and set aside a judgment entered herein, and to vacate and set aside an attachment issued in the same action. The facts are conflicting, and appear to have been fairly and fully considered by the justice who passed on the motion. It involves a question of fact, and we do not feel that we can determine more correctly than he. Order is affirmed, with costs. HECHT, Respondent, v. BRANDUS, Appellant. (Common Pleas of New York City and County, General Term. June 19, 1893.) PER CURIAM. Motion denied. with $10 costs. See 23 N. Y. Supp. 1004. [END OF CASES IN VOL. 25. | INDEX. Abandonment. Pleading. insured vessel, see "Marine Insurance," 3, 4. defense, and must be pleaded.-Jacobs v. Day, Abatement. legacies, see "Wills," 30, 31. BATEMENT AND REVIVAL. mother action pending. as a 1. The fact that certain matters, (Com. Pl. N. Y.) 25 N. Y. S. 763. Accounting. By executors and administrators, see "Execu- Account Stated. Acquiescence in, see "Estoppel," 4. See "Wills," 23. Acknowledgment. To take debt out of statute, see "Limitation of Acquiescence. 2. An action in a district court by a ma- e contractor to foreclose his lien on the Abutting Owners. ilroad in street, see "Eminent Domain," 6. Accident. I crossing, see "Railroad Companies." 21-23. CCORD AND SATISFACTION. hat constitutes. 1. Goods sold by sample were returned to ACTION. See, also, "Abatement aud Revival;" "Appeal;" Accrual of cause, see "Limitation of Actions," Against city, see "Municipal Corporations." 5. - partner or firm, see "Partnership," 13, 14. By stockholder, see "Corporations," 25. Injunction against action in another state, see On contract, see "Contracts," 15-17. |