Sup. Ct.) UNION BAG & PAPER CO. V. ALLEN BROS. CO. "judgment is directed declaring the rights of the parties as herein set forth, and that the plaintiff and defendant Allen Bros. Company be enjoined, each as to the other, from interfering with the other in the lawful exercise of its right so declared. In case the details necessary to be stated in the judgment in order to carry into effect be not agreed upon by the parties, they may be settled before me, or otherwise as the court may order." The decision was made in duplicate, and delivered by the referee simultaneously to the plaintiff's and to the defendants' attorneys. The latter paid the referee's fees, filed the decision in the clerk's office October 30, 1903, and on November 3d served a copy of the same, with notice of filing, upon the plaintiff's attorneys. On November 16th, the plaintiff's attorneys having claimed that the referee's rulings upon requests should be considered as a part of his report, the defendants' attorneys filed such requests and rulings, and served notice of such filing upon plaintiff's attorneys, and at the same time submitted to them a draft of a judgment which defendants' attorneys proposed to enter, with the request that the former would examine it as soon as convenient, and inform them as to whether it was satisfactory as to form, and, if not, in what respect they would prefer that it be changed. In response to this request the plaintiff's attorneys wrote to the defendants' attorneys under date of November 18, 1903, "We will examine the copy of proposed decree which you inclose as soon as we reasonably can and write to you in regard to it." Defendants' attorneys, hearing nothing further from the plaintiff's attorneys, entered the proposed judgment in the clerk's office on the 10th of December, 1903, and on the following day served a copy thereof on the plaintiff's attorneys, with notice of entry. Some further correspondence followed, when the motion was made by the plaintiff's attor neys which resulted in the order appealed from. Argued before PARKER, P. J., and SMITH, CHASE, CHESTER, and HOUGHTON, JJ. Hand & Hale, for appellants. Alfred B. Thacher, for respondent. CHESTER, J. The referee having made and delivered his decision. or report, his functions and power with reference to the case were ended, and neither the referee nor the court at Special Term had any power to alter or change the decision in any matter of substance. Heath v. New York Building Loan Banking Co., 146 N. Y. 260, 40 N. E. 770; Kennedy v. McKone (No. 2) 10 App. Div. 97, 41 N. Y. Supp. 577. case any power to settle a decree. Neither had the referee in such That duty rested upon the court at Special Term, whose power in so settling it was confined to making the decree conform to the decision as made. The learned justice at Special Term undoubtedly had these principles in mind, for the order made by him is one referring it to the referee who tried the case "to settle and approve some form of If the judgment in accordance with the referee's report and findings herein, * * and report to this court, with his recommendations.' judgment had not been entered, and that was all there was of the order, we might be inclined, under the circumstances of this case, to approve of it; but the order goes further, and vacates the judgment which has been entered. The court would undoubtedly have the power to vacate the judgment entered if it appeared that it did not conform to the decision of the referee. So far as it goes, it does not appear that it contains anything that was not decided by the referee. The counsel for the respondent, indeed, fails to point out anything in the judgment as entered He does point out, howwhich is not authorized by the decision made. ever, that the decree does not contain all that was decided, and this 88 N.Y.S.-24 and 122 New York State Reporter is practically conceded by the appellants' counsel, so far as it relates to the injunction in favor of the plaintiff and against the defendants. In this respect the counsel for the appellants offered in the Special Term that the decree might be amended so as to include the matter so omitted. The counsel for the respondent insists, however, that there are omissions in other respects in the decree as entered, but he fails to specifically point out such omissions by way of proposed amendments. If there are any such omissions, his remedy was to make a motion to amend the decree as entered, instead of to move to vacate it, and on such motion to specify clearly in what respect it should be amended to make it conform to the decision. Oliver v. French, 82 Hun, 436, 31 N. Y. Supp. 740. While, after the trial of issues of fact by a referee, and a report thereon, it has been the usual practice, in the absence of an agreement between the attorneys for the respective parties as to the form of the judgment, to have the same settled by the court, and while the duties of the clerk are wholly ministerial, nevertheless the clerk has the power, under section 1228 of the Code of Civil Procedure, after such a trial and decision, to enter judgment as directed by the decision, upon filing such decision in his office. The fact that there were numerous rulings by the referee upon the requests of the respective parties for findings undoubtedly added to the difficulty in preparing a judgment in conformity with the decision, yet, the defendants' attorneys having prepared a judgment following what they deemed to be the directions in the decision with respect to it, and having submitted such judgment to the plaintiff's attorneys for their suggestions, the failure of the latter to respond for upwards of 20 days. with any criticisms upon it, or with any suggested changes, justified the defendants' attorneys, without further delaying the matter, in procuring the clerk to enter the judgment, leaving the plaintiff's attorneys to move to amend it if it did not conform to the decision in all respects. We are not prepared to say, under the circumstances of this case, that the judgment was improperly entered by the clerk, and we think it should not have been vacated. The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs, with leave, however, to plaintiff to move to amend the judgment to conform to the decision. All concur, except CHASE and HOUGHTON, JJ., who concur to reverse that part of the order appointing referee only. WAGNER v. EINHORN. (Supreme Court, Appellate Term. May 19, 1904.) 1. TRIAL-DIRECTING VERDICT. Though the evidence would have justified setting aside a verdict for plaintiff, had one been rendered, as being against the weight of evidence, there being some contradictory evidence, it was error to direct a verdict for defendant. 1. See Trial, vol. 46, Cent. Dig. § 383. From a judg Appeal from City Court of New York, Trial Term. Action by Otto Wagner against Hattie Einhorn ment directed for defendant, plaintiff appeals. Reversed. Argued before FREEDMÂN, P. J., and TRUAX and SCOTT, JJ. Epstein Bros., for appellant. Engel, Engel & Oppenheimer, for respondent. SCOTT, J. If the cause had been submitted to the jury and a verdict rendered for the plaintiff, the court would have been justified in setting it aside as against the evidence. There was, however, some contradictory evidence in the case, and the direction of a verdict was consequently improper. McDonald v. Met. St. Ry. Co., 167 N. Y. 66, 60 N. E. 282. Judgment and order reversed, and a new trial granted, with costs. to appellant to abide the event. All concur. LINDSEY v. MAINE S. S. CO. (Supreme Court, Appellate Term. May 19, 1904.) 1. CARRIERS-Loss OF BAGGAGE-LIMITATION OF LIABILITY. Where plaintiff bought a round-trip steamship ticket which limited the carrier's liability for loss of baggage to $100, and, months after the purchase, had a trunk checked on the return portion of the ticket, and the trunk was lost through the carrier's negligence, the carrier was entitled to insist on the limitation of liability. Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Laura M. Lindsey against the Maine Steamship Company. From a judgment for plaintiff for less than her demand, she appeals. Affirmed. Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ. Walter W. Menzel, for appellant. Carpenter, Park & Symmers, for respondent. PER CURIAM. The plaintiff, through her brother, procured from defendant a round-trip ticket for a passage from New York to Portland, Me., and return. With this ticket in her possession, she proceeded to Portland, where the coupon to that place was taken up, and the remainder of the ticket handed back to her. Months thereafter she returned upon defendant's steamer, and had a trunk checked upon the strength of the part of the ticket still in her possession. The trunk was lost, presumably through the negligence of the defendant as carrier. The said part of the ticket limited the liability of the defendant in case of loss to $100. Under the circumstances of this case, there was a contract between the parties limiting defendant's liability, which the carrier had a right to make and to insist upon. Steers v. Liverpool, etc., Steamship Co., 57 N. Y. 1, 15 Am. Rep. 453, and cases there cited. Judgment is affirmed, with costs. and 122 New York State Reporter V. LOEWER'S GAMBRINUS BREWERY CO. v. LITHAUER et al. 1. OFFICIAL BOND-JUDGMENT AGAINST PRINCIPAL-CONCLUSIVENESS. Municipal Court Act (Laws 1902, p. 1574, c. 580) § 295, requiring proof that a judgment has been recovered against the marshal of the court, and an execution issued and returned wholly or partly unsatisfied, and leave given to prosecute the bond in order to maintain an action against the sureties on the marshal's bond, does not make the judgment recovered against the marshal evidence against the sureties of anything more than the fact that such judgment has been obtained. 2. SAME RIGHTS OF SURETIES. Where a Municipal Court marshal's bond was conditioned that he should well and faithfully execute his office without fraud, deceit, or op pression, and in all things should well, truly, and faithfully perform the duties of his office, and properly account for and pay over all moneys and property received by him as marshal, a judgment recovered against him for a conversion is not conclusive against his sureties that he had been guilty of misconduct. Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by V. Loewer's Gambrinus Brewery Company against Edward L. Lithauer and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed. Árgued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ. William S. Bennet, for appellant surety company. Uriah W. Tompkins, for respondent. SCOTT, J. The bond which the appellant gave for the marshal, Lithauer, is conditioned that he shall well and faithfully execute the said office of marshal without fraud, deceit, or oppression, and shall in all things well and truly and faithfully perform the duties of his office, and properly account for and pay over all moneys or properties received by him as marshal, etc. It is well settled in this state that in an action brought against the surety upon such a bond a judgment against the marshal for a conversion or an unlawful levy is neither conclusive nor prima facie evidence against the surety of the facts essential to the recovery. People ex rel. Tuthill v. Russell, 25 Hun, 524; Berry v. Schaad, 50 App. Div. 132, 63 N. Y. Supp. 349. It is true that by section 295 of the Municipal Court act (chapter 580, p. 1574, Laws 1902) it is necessary to show as a condition of maintaining an action against a surety on such a bond that a judgment has been recovered against the marshal, and execution issued and returned wholly or partially unsatisfied, and leave given to prosecute the bond. The act, however, does not declare that the judgment against the marshal shall be evidence against the surety of anything more than the fact that such a judgment has been obtained. As to the ultimate fact whether or not the marshal has been guilty of misconduct, the surety is entitled to his day in court, and an opportunity to litigate. The distinction between such a bond as is involved in this action and one whereby the surety undertakes that the principal shall comply with an order or judgment of the court is clearly pointed out in People ex rel. Tuthill v. Russell, supra. The Sup. Ct.) PEOPLE V. MILLER. plaintiff offered no proof of the marshal's misconduct except the judgment roll in the action against him. As that was insufficient, the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. Judgment reversed, and new trial ordered, with costs to appellant to All concur. abide the event. WHITMORE v. WERNER. (Supreme Court, Appellate Term. May 19, 1904.) 1. WORK AND LABOR-DISCHARGE. Where plaintiff was employed by the month, and was discharged at the end of the month, he was not entitled to pay after his discharge. Appeal from Municipal Court, Borough of Manhattan, Twelfth District. Action by Theodore Whitmore against Sylvia Werner. From a judgment for plaintiff, defendant appeals. Reversed. Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ. A. Patterson, for appellant. T. Whitmore, for respondent. PER CURIAM. It is impossible to tell from the plaintiff's testimony whether he sued for salary earned by him during the month of January or during the month of December. In one place he testified that he received $25 for wages, which was supposed to be up to the 15th of January, but he also testified on cross-examination that he was paid for the month of December. The testimony is very confusing, but it shows that the plaintiff was discharged in December, that his discharge was to take effect on the last day of the month, and that he had been paid for the whole of that month. By the arrangement between the plaintiff and the defendant his employment was from the 1st of one month to the 1st of the succeeding month, and the defendant was under no obligations to pay the plaintiff after the 31st day of December. Judgment appealed from is reversed, with costs to appellant to abide the event, and a new trial ordered. PEOPLE ex rel. NEW YORK CENT. & H. R. R. CO. v. MILLER, Comptroller. (Supreme Court, Appellate Division, Third Department. May 11, 1904.) 1. CORPORATIONS-GROSS EARNINGS TAX-ASSESSMENT-REVISION-INTERSTATE BUSINESS. Tax Law (Laws 1896, p. 857, c. 908) § 184, provides for a franchise tax to be assessed on the gross earnings of a transportation corporation within the state, which shall include its gross earnings from its transportation or transmission business originating and terminating within the state, but shall not include earnings derived from business of an interstate character. Held, that where it appeared that a domestic railway company's assessment under such section included receipts from express business beginning in the state and transferred within the state for delivery in |