Volume 162 — New York Appellate Division Reports

Appeal by the defendants, Luis .F. Yglesias and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of September, 1918, amending the judgment herein by striking out the words “ upon the merits. ”

Appeal by the defendant, Delpark Productions, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of January, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1913, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Twelfth Ward Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May, 1913, upon the verdict of a jury rendered by direction of the court, a special verdict having been first received and entered, and also from an order entered in said clerk’s office on the 31st day of May, 1913, denying the defendant’s motion for a new trial made…

Appeal by the defendants, John B. Carter and others, from part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1914.

Appeal by the plaintiff, Anton Peterson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 15th day of July, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Ida Deitch, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of December, 1913, overruling her demurrer to an affirmative defense contained in the amended answer.

Certiorari issued out of the Supreme Court and attested on the '7 th day of June, 1913, directed to Rhinelander Waldo, as police commissioner of the city of New York, commanding him to certify and return to the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.

<p>Certiorari issued out of the Supreme Court and attested on the 22d day of March, 1913, directed to Thomas Nelson and-others, as the hoard of trustees of the village of Peekskill, and to Albert E. Cruger, as village clerk of said village, commanding them to certify and return to the office of the clerk of the county of Westchester all and singular their proceedings had relative to the confirmation of the report of Francis Larkin and others, as commissioners of appraisal in the matter of laying out and widening South street in said village.</p>

<p>County — designation of newspapers to publish Session Laws — results of last annual election controlling—change in supremacy of political parties.</p> <p>A board of supervisors in designating newspapers to publish the Session Laws and concurrent resolutions of the Legislature, pursuant to section 20 of the County Law, should designate newspapers representing the two principal political parties within the county as established by the results of the last annual election.</p> <p>Hence, although the National Progressive party had a voting supremacy over the Republican party in the gubernatorial and presidential elections of 1912, a Republican newspaper should be designated where the subsequent election of judges of the Court of Appeals and county officers held in 1913 gave the Republican party numerical supremacy over the Progressive party.</p>

Separate appeals by the plaintiff, Kathryne Floyd Dana Jurgensen, and by the defendants, Eichard Floyd Dana and another, from, parts of an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Suffolk on the 14th day of August, 1913, upon the decision of the court after a trial at the Suffolk Special Term.

<p>Village — water supply — town board cannot contract for water to be furnished to incorporated village — power of village to make such contract.</p> <p>After a village has been incorporated within the boundaries of a town, the town board has no authority to enter into a contract with a water company to furnish water for fire purposes, not only to the town but also to the village within its boundaries, nor can it assess the property in the village for its portion of the cost.</p> <p>Under the statutes (Transportation Corporations Law and Village Law) the power of an incorporated village to contract for such water supply is in its board of trustees and board of water commissioners, if such board exists.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, Hudson Trust Company, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 22d day of May, 1913, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the defendants, Frederick Ray and others, etc., from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of New York in plaintiff’s favor.

Appeal by the defendant, Norman M. Brickner, etc., from an order and determination of the Appellate Term of the ■ Supreme Court' in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1913, affirming a judgment of the Municipal Court of the City of New York in plaintiff’s favor.

<p>Appeal by J accjues Lebaudy from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1914, denying his motion for an order requiring the Superintendent of Banks to release and turn over to him six warrants for twenty-five shares each of the capital stock of the Johannesburg Consolidated Investment Company, Limited.</p>

<p>Practice — subpcena duces tecum against municipal officer — questions considered on application for such subpcena.</p> <p>The question to be considered on an application under rule 9 of the General Rules of Practice for a subpcena duces tecum, is whether the production of the original record is necessary, and if not, it is expected that the attorneys will enter into a stipulation for the use of a copy or an abstract of the record, and any party refusing so to do subjects himself to the risk of liability for the expense of procuring the production of the original.</p> <p>It Is for the trial court and not for the judge or justice to whom the application for the subpcena is made, to rule upon the competency and admissibility of evidence.</p> <p>An application for a subpoena duces tecum directing that the president of the borough of The Bronx produce written communications passing between himself and the corporation counsel should be granted, although they may be privileged under section 835 of the Code of Civil Procedure.</p>

<p>Corporation — relation of common and preferred stockholders to each other and to corporation — right of preferred stockholders to dividend — provision of articles of association construed — surplus profits.</p> <p>The relation of common and preferred stockholders to each other and to the corporation is purely contractual, unless governed by statute.</p> <p>Under articles of association of a solvent corporation, providing that preferred stock shall be entitled, in preference and priority over the common stock of said corporation, to dividends in each and every fiscal year, at such rate not exceeding four per cent per annum, payable out of net profits, as shall be declared by the board of directors, and that such dividends are to be non-cumulative, and the preferred stock is entitled to no other or further share of the profits, gains and profits made by fortunate investment, and in converting its bonds into common stock are" distributable as dividends in the discretion of its board of directors in precisely the same manner as gains and profits made in operation, to wit, to the common stockholders only, to the exclusion of the preferred stockholders, whose contractual rights have been fully met.</p> <p>The rights of the preferred stockholders in such corporation are strictly contractual, and so long as the corporation is a solvent, going concern, they are restricted to the preferential dividend provided for in any distribution of the surplus profits or gains, however derived.</p> <p>Property accumulated by a corporation in excess of its chartered capital constitutes a surplus of profits, and may be so regarded and dealt with.</p>

<p>Railroad — common carrier — validity of contract releasing carrier from liability for negligence, to be determined where executed or where injury occurred — injury to passenger by negligence of carrier without this State — effect of Interstate Commerce Law.</p> <p>Plaintiff, the owner of cattle shipped from Illinois to a point in this State, in consideration of a free passage, signed a contract and release which expressly exempted the initial and every connecting carrier from liability for personal injuries caused by negligence. Such contract and release are void under the laws of Illinois and Ohio, but are valid in this State. The plaintiff was injured by the negligence of the carrier in the State of Ohio.</p> <p>Held, that the contract and release must be construed either according to the law of the State of Illinois, where they were executed, or by the law of the State of Ohio, where the injury occurred, and, therefore, the plaintiff is entitled to recover, notwithstanding the release.</p> <p>The provisions of the Interstate Commerce Law do not prevent a recovery by the plaintiff under such circumstances.</p> <p>A release exempting a common carrier from liability for personal injuries has been declared by the Supreme Court of the United States to be against public policy.</p>

<p>Appeal by the plaintiff, Herman Finkelstein, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of November, 1913, affirming a judgment-and order of the City Court of the City of New York dismissing the complaint herein.</p>

<p>Cross-appeals by the plaintiff, Robert S. Smith, and the defendants, Max Finkelstein and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of May, 1913, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Samuel Katz, an infant, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 3d day of December, 1913, upon a dismissal of the complaint “ on the merits” by direction of the court on the opening, and also from the order upon which said judgment was entered.

Appeal by the defendants, John T. Brady & Co. and another, from parts of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of December, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Clyde Steamship Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of November, 1913, affirming a judgment and order of the City Court of the City of New York, and also (as stated in the notice of. appeal) an appeal from the judgment and order of the City Court which were so affirmed, and from the judgmeiit and order of the City Court making…

Appeal by the defendants, Isaac Mayer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of June, 1913, upon a verdict rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of June, 1913, denying the defendants’ motion for a new trial made upon the minutes.

<p>Municipal corporations — city of Hew York — lease of building fot school purposes — liability for breach of covenant.</p> <p>Where the board of education of the city of New York leases a building for school purposes, the board is solely liable for damages for breach of a covenant contained in the lease. The city itself is not liable.</p>

Appeal by the defendant, Mathias Stine, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1914.

<p>Appeal by the defendant, Alexandrine Olsey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 28th day of March, 1913, upon the decision of the court after a trial at the Westchester Special Term.</p>

<p>Mortgage — foreclosure — surplus proceedings — priority — payment of . interest due on first mortgage.</p> <p>A guarantor of a first mortgage by paying interest on the mortgage debt does not acquire a preference to the extent of said payment in a surplus arising on foreclosure as against the holder of a second mortgage.</p>

Appeal by The City of Yonkers from two orders of the Supreme Court, the first made at the Dutchess Special Term, the second at the Westchester Special Term, and both entered in the office of the clerk of the county of Westchester on the 30th day of December, 1912, and on the 5th day of December, 1913, respectively.

Appeal by the petitioners, Elenore B. Tuck, as executrix, etc., and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of January, 1914, as resettled by an order entered therein on the 3d day of February, 1914, denying the appellants’ motion for an order directing that they be brought in as parties plaintiff in this action, and that the summons, judgment and all the…

<p>Appeal by the defendant, Twelfth Ward Bank of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of December, 1918, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the defendant, Ocean Steamship Company of Savannah, Georgia, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of February, 1914, sustaining a demurrer to a separate defense pleaded in the answer.

Appeal by William Sohmer, as Comptroller of the State New York, from an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 15th day of April, 1913, affirming a prior order entered on the 6th day of November, 1912, fixing the transfer tax herein.

Appeal by the defendants, William 0. Allison and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of September, 1912, upon the verdict of a jury for $29,553.44, and also from an order entered in said clerk’s office on the 23d day of September, 1912, denying the separate motions of the defendants for a new trial made upon the minutes.

Appeal by the defendants, Louis Streicher and another, from a judgment of the Court of Special Sessions of the City of New York, rendered against them on the 31st day of March, 1913, convicting them of the crime of petit larceny.

Appeal by the defendants, Marshall McCoy and another, from a judgment of the County Court of Washington county, rendered against them on the Yth day of February, 1914, and convicting them of the crime of adultery.

Appeal by the plaintiff, The Citizens Trust Company of Schenectady, N. Y., from a judgment of the County Court of Schenectady county, entered in the office of the clerk of said county on the 19th day of June, 1913, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office denying plaintiff’s motion for a new trial.

Appeal by the defendant, Nora Osborne, from a judgment of the County Court of Hamilton county in favor of the plaintiff, entered in the office, of the clerk of said county on the 28th day of Hay, 1918, reversing a judgment of a Justice’s Court which dismissed the complaint and directing a judgment as prayed for in said Justice’s Court.

Appeal by the defendant, Troy and New England Railway Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 18th day of January, 1913, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 22d day of January, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Hygienic Ice and Refrigerating Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 18th day of January, 1913, dismissing the complaint on the merits upon the decision of the court, both sides having moved for the direction of a verdict at the close of the case, and the jury having been thereupon expressly waived.

Appeal by the defendant, Boston and Maine Railroad, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 19th day of May, 1913, upon the verdict of a jury for $1,500, and also from an order entered in said clerk's office on the 2d day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Peter J. Bloss, from a judgment of the County Court of Madison county, entered in the office of the clerk of said county on the 16th day of June, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, Max Oanno and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 3d day of December, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office denying defendants’ motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 13th day of September, 1913, directed to William Sohmer, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in imposing a tax upon the relator under section 186 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62) for the year ending October 31, 1911.

Appeal by the plaintiff, Frick Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 15th day of December, 1913, upon the dismissal of the complaint t>y direction of the court at the close of plaintiff’s case.

Appeal by the relator, Daily Credit Service Corporation, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 27th day of February, 1914, denying relator’s motion for a peremptory writ of mandamus directing the respondent to receive for filing and to file the proposed amended certificate of incorporation of the relator.

Certiorari issued out of the Supreme Court and attested on the 3d day of November, 1913, directed to Thomas F. Byrnes and others, composing the State Board of Tax Commissioners, and to the State Board of Tax Commissioners, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in apportioning, pursuant to the provisions of section 260 of the Tax Law (Consol.

Appeal by the defendant, General Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 23d day of June, 1913, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 30th day of June, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Abbie Lasher, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 24th day of December, 1913, denying plaintiff’s motion for an order requiring the defendant to make his answer more definite and certain.

Appeal by the defendant, Village of Hudson Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of -the clerk of the county of Washington on the 17th day of January, 1914, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

Appeal by Title Insurance Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1912, confirming the awards of the commissioners of estimate and the commissioner of assessment herein.

<p>Bills and notes—negotiable promissory note, what constitutes—holder for value — when bank upon discounting note becomes holder for value — effect of payment upon general account.</p> <p>An instrument providing that “I shall pay to the order of the American Hoist & Derrick Co. on the 30th day of August, 1911, in the City of New York, the sum of Two thousand three hundred and forty ($3,340) dollars currency, for amount of the second installment agreed on of a crane of them manufacture purchased on this date, according to specifica- . tions of their representative, Mr. H. S. Johannsen,” dated and signed, is a negotiable promissory note under the Negotiable Instruments Law.</p> <p>The mere placing of the amount of the discount of a negotiable instrument to the credit of a customer does not make the bank a holder of the instrument for value.</p> <p>But where the sum deposited has subsequently been checked out, then value passes and the bank becomes abona fide holder for value, although the customer by subsequent deposits has maintained an account in excess of the amount of the note. This because of the rule that where a payment is made upon general account, with no discretion as to its application, the law applies it to the oldest items; that is, the first debits are to be charged against the first credits.</p>

Appeal by the defendant, Consumers’ Park Brewing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Kings on the 15th day of October, 1913, upon the decision of the court after a trial at the Kings County Special Term. The judgment decreed the sale of the property sought to be partitioned in the action.

Appeal by the defendant, Frankfort General Insurance Company of Frankfort-on-the-Main, Germany, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 15th day of October, 1913, denying the defendant’s motion to compel plaintiff to reply to the first and second separate defenses set up in the answer.

<p>Appeal by the defendant, Henry Leibowitz, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 12th day of December, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1913, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Leo E. Ellis, from a judgment of the Court of Special Sessions of the City of New York, Part II, Kings county, rendered against him on the 29th day of January, 1914, convicting him of the crime of practicing medicine without being registered and licensed, in violation of the Public Health Law, and imposing a fine of twenty-five dollars.

Appeal by the City of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the comity of Queens on the 6th day of August, 1913, directing that the claim of Jere

Appeal by the plaintiff, May Colyer, an infant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of December, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 23d day of December, 1913, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Southern Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19 th day of March, 1914, granting plaintiffs’ motion for an injunction pendente lite.</p>

Appeal by the defendants, John GJ-. Franz and others, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 29th day of January, 1914, denying a motion to set aside a judicial sale.

Appeal by the plaintiff, George F. Barnard, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dutchess on the 16th day of February, 1914, sustaining a demurrer to the complaint.

<p>Appeal by the defendants, Alice A. Davis and others, from a judgment of the County Court of Queens county in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of said county on the 29th day of November, 1911, upon the decision of the court.</p>

<p>Master and servant — negligence — Labor Law—injury caused by starting stationary engine without signal — when superintendent acts as fellow-servant — Employers’ Liability Act — service of notice on foreign corporation—when variance between notice and proof is immaterial.</p> <p>Where in an action against a master brought under the Labor Law it appears that the plaintiff, while standing within a steel form which was moved from place to place in a tunnel by means of a cable operated by a stationary engine, was injured by reason of the fact that the defendant’s superintendent, who temporarily took the place of the engineer, started the engine without the customary signal from the plaintiff, the act complained of cannot be considered a detail of superintendence, for at the time the superintendent was performing the duties of a fellow-servant. Hence, there was no question for submission to the jury.</p> <p>A notice under the Employers’ Liability Act may be served upon a foreign corporation at its principal place of business within this State.</p> <p>Although - the notice served under the Employers’ Liability Act stated that the injuries were caused by the negligence of the defendant’s superintendent in ordering, directing or permitting the form to be moved without notice, there was no material variance because the proof showed that the superintendent himself started the engine.</p>

<p>Appeal by Elizabeth W. Van Siclen, individually and as trustee, etc., from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said surrogate on the 21st day of January, 1914, settling the accounts of Daniel S. Woolley, as trustee.</p>

<p>Eminent domain — authority of city of Hew York under charter to con demn lands held by State for public purposes — effect of prior special act.</p> <p>The Greater Hew York charter does not confer power upon the city to exercise its general right of condemnation against property of the State devoted to a public purpose and not merely held by it as a proprietor. Hence, lands owned by the State and occupied by a public charitable corporation cannot be acquired by the city for street purposes.</p> <p>The charter provides ah entire scheme for the condemnation of such lands, notwithstanding a prior special act authorizing a village, now a part of the city of Hew York, to extend or widen its streets through State lands without compensation to the State.</p>

Appeal by the plaintiff, John D. Coleman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 11th day of December, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Contempt —refusal of witness in supplementary proceedings to answer questions — when nature of questions proper subject of inquiry upon proceeding to punish witness for contempt.</p> <p>Where, after a witness in proceedings supplementary to execution refuses to answer material questions as to a check drawn on a deposit in the name of another, into which much of the judgment debtor’s money might be traced, the parties appear before a justice of the Supreme Court, who instructs the witness to give the information asked, and he again refuses to answer, and they again appear before the same justice who again orders the witness to answer, and states that he will commit him for not answering, and the witness still refuses to obey the directions of the court, he is properly adjudged guilty of criminal contempt.</p> <p>As the witness was not a party to the proceeding and hence not entitled to appear by counsel therein, or to be heard upon the legality or propriety of the questions addressed to him, the nature of the questions is a proper subject of inquiry upon a proceeding to punish him for contempt.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 1st day of May, 1913, directed to Rhinelander Waldo, as police commissioner of the police department Of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in removing the relator from his position as a member of the police department of the city of New York.</p>

<p>Municipal corporations — change of grade of street — deed — description — liability to abutting owner without title to bed of street — Statute of Limitations •—■ nuisance.</p> <p>Where a physical change of grade of a street is made by a city without lawful authority, it is liable for damages to the abutting property which has been improved by the owner with relation to a former legally established grade.</p> <p>Where the description in a deed begins at a point formed by the intersection of the southerly line of one street and the westerly line of another, thence running westerly along the southerly line of the first street, and there is nothing to qualify these words of description, the grantee is an abutting owner only, and has no title to the land in the bed of the street.</p> <p>An action at law by such owner to recover damages for a change of grade made without lawful authority, is barred by the six-year Statute of Limitations, which begins to run after the completion of the work.</p> <p>The damage to such an abutting owner is not similar to that caused by the construction of elevated railroads, and the change of grade does not constitute a continuing nuisance.</p>

<p>Master and servant —negligence — injury to employee by circular saw — issue as to whether saw was guarded — omission to instruct employee — evidence — admissibility of reports of inspectors of State Department of Labor — when admission of incompetent evidence considered harmless.</p> <p>A patternmaker’s helper suing to recover for injury-to his hand, which came in contact with a circular saw upon which he was at work in defendant’s factory, claimed that the defendant was negligent in failing to guard the saw properly, and in omitting to instruct him properly as to the use thereof.</p> <p>Held, on all the evidence, that an order setting aside a verdict in favor of the defendant and granting a new trial should be reversed and the verdict reinstated;</p> <p>That although reports of inspectors employed by the State Department of Labor were improperly admitted in evidence, because the inspector who made them was not called as a witness, and no statute exists requir ing them to be filed, and making them prima facie evidence of the facts stated therein, the judgment should not be reversed for this error, for the facts proved thereby were established by other competent evidence.</p> <p>It is the rule, both at common law and under section 1317 of the Code of Civil Procedure, that when a fact is fully established and without dispute by other and competent evidence, an error arising from the admission of incompetent evidence relating to it will be considered harmless.</p>

Appeal by the plaintiff, Fred Strahlendorf, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 18th day of March, 1914, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Appeal by the defendant, Long Island Star Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of December, 1913, upon the decision of the court after a trial at the Queens County Special Term.</p>

<p>False imprisonment — arrest by employees of railroad company — failure to show that employees acted within scope of authority — charge.</p> <p>A plaintiff suing a railroad company for false imprisonment does not make out a cause of action where he merely proves that, being lawfully upon the defendant’s train, he was arrested by the telegraph operator of a switch tower, led from the car, conducted to a nearby station and detained there by the telegraph operator and the ticket agent until a constable arrived and arrested him on a warrant sworn out by the ticket agent. This because such proof does not show that the persons malting the arrest were acting under any express or implied authority from the defendant.</p> <p>Nor does such evidence establish that, moneys which the plaintiff is charged to have stolen belonged to the defendant.</p> <p>Especially should a nonsuit have been granted where the person making the initial arrest, when called to the stand by the court, testified that he acted outside of any authority vested in him. by the defendant and outside the scope of his employment.</p> <p>Charge examined, and held, to be erroneous.</p>

<p>Appeal by William H. Mendel from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 21st day of November, 1913, adjudging him guilty of contempt for refusing to answer certain questions propounded to him by the Public Service Commission while a witness before that body, and for refusing to produce certain journals, cash books, ledgers and books of account, and committing him to jail, pursuant to section 19 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480).</p>

<p>Appeal by the defendant, The Mayor, etc., of the City of New York, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1912, upon the report of a referee.</p>

Appeal by the defendant, Barnett & Barse Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1914, denying the defendant’s motion for judgment on the pleadings and overruling its demurrer to the complaint.

<p>Appeal by the defendant, People’s Surety Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of December, 1913, upon the report of a referee appointed to hear and determine the issues.</p>

<p>Appeal by the plaintiffs, Charles B. O’Connell and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of January, 1914, denying their motion to compel the defendant Wilson to accept service of a second amended complaint.</p>

Appeal by the defendant Sarah E. Von Kokeritz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of April, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of May, 1912, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Louisa Dash and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1913, confirming the report of the commissioners of estimate and the report of the commissioner of assessment herein.</p>

Appeal by the defendants, The Harbeson Textile Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 1914, overruling demurrers to the amended complaint, and also an appeal from the order entered in said clerk’s office on the 12th day of January, 1914, pursuant to which the interlocutory judgment was entered.

<p>Ships and shipping — carriage of goods -hy-water — statutory exemption where goods, transferred from one s.hip to another by lighters, are destroyed by fire — when bill of lading does not waive statutory exemption. ...</p> <p>By virtue of section 4388 of the Revised Statutes of the United States, providing that no owner of a vessel shall be liable for loss or damage to goods by reason of fire happening to or on board the vessel wherein they are carried unless the fire is caused “ by the design or neglect of such owner,” which provision is made applicable to barges and fighters, the owner of a vessel in which goods are shipped to be transferred to a connecting steamship line, is not hable where the goods are destroyed by fire while being transferred to the ship of the connecting carrier by lighters, if the loss is not caused by design or neglect. This immunity is statutory, but the carrier may waive the same and' extend its liability.</p> <p>There is no waiver of the protection of the statute although the bill of lading under which the goods were shipped among other things provided that in ease of physical necessity the carrier might forward the goods by rail, in which case its liability should be the same as though the entire carriage were by rail, and that the term “ water carriage * * * shall not be construed as including lighterage across rivers, or in lake or other harbors, and the liability for such lighterage shall be governed by the other sections of this instrument," and said instrument in its first clause provided that the carrier of property “ shall be liable for any loss thereof or damage thereto except as hereinafter provided.” The provision of the bill of lading as to destruction of goods when carried on lighters did not apply where the goods were carried by water only and were not transferred to a railroad.</p> <p>The rule that a bill of lading should be strictly construed against the carrier does not obtain where there is a statutory exemption and it is attempted to hold the carrier on the theory that it has, by a bill of lading, waived its statutory exemption.</p>

Appeal by the relator, August Reiblich, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1911, setting aside the verdict of a jury in plaintiff’s favor upon the issues raised by an alternative writ of mandamus, and granting a new trial.

Appeal by the defendant, Loomis Sanatorium, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 18th day of June, 1913, upon the verdict of a jury for $200.15, and also from an order entered in said clerk’s office on the 18th day of July, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William Farson and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 24th day of September, 1913, upon the decision of the court after a trial at the St. Lawrence Trial and Special Term before the court without a jury.

<p>Tax — franchise tax—when corporation engaged in business within the meaning of section 182 of the Tax Law — distribution of capital, what constitutes — capital stock defined.</p> <p>A corporation formed for the purpose of taking title to undivided interests in certain real property for convenience in litigation, which, after a conveyance to it by one who had inherited undivided interests therein, in return for the entire stock which she issued to her fohr children in equal shares, held and leased such property and represented its stockholders in important litigation until the trustees under the wills of former owners in whom were vested the power of sale of said real estate had sold the same and paid to the corporation its share, and, after payment of counsel fees and disbursements, conveyed the balance to the stockholders, must be held to have been engaged in business within this State, within the meaning of section 182 of the Tax Law, and is liable for the payment of a franchise tax, pursuant to the provisions of sáid section.</p> <p>But the moneys received from said trustees upon the sale of the real property and by them paid to the corporation and by it distributed to the stockholders, constituted a distribution of capital and not the payment of a dividend.</p> <p>The words “capitalstock,” as used in section 182 of the Tax Law, mean not the share stock, but the property of the corporation.</p>

Appeal by the plaintiff, Elmer E. Knight, from a judgment of the Supreme Court hi favor of the defendants, entered in the office of the clerk of the county of Broome on the 19th day of August, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiffs motion for a new trial made upon the minutes.

<p>Statute of Frauds — letters and telegram constituting sufficient memorandum of sale — evidence — authority of agent to make contract.</p> <p>In an action to recover for copper wire alleged to have been sold by the plaintiff to the defendant, the answer admitted the cause of action, but pleaded as a counterclaim damages by reason of the failure of the plaintiff to deliver to the defendant certain brass and bronze turnings alleged to have been purchased under an oral contract. It appeared that, the defendant’s son, in a conversation with the plaintiff’s son over the telephone, agreed to sell a certain quantity of brass and bronze turnings and copper wire at a fixed price, which conversation he thereafter confirmed by letter. Immediately thereafter plaintiff’s son, learning that the property had been disposed of, telegraphed the defendant as follows: “ cancel order for turnings and copper wire as same has been disposed of by my father," to which defendant immediately replied by telegram, “cannot comply with your request,” but in a letter written on the same day stated that he would consent to the cancellation of the order for the brass and bronze turnings, but would not consent to cancel the purchase of the copper wire. On the same day plaintiff, in a letter to defendant, acknowledged the making of the contract by his son, but claimed that it was "made without authority, and that such property had previously been disposed of.</p> <p>Held, that the plaintiff's communications by letter and telegram to the defendant constituted a sufficient memorandum/of sale of personal property exceeding fifty dollars in value under the Statute of Frauds, and that the court erred in holding, as matter of law, that the contract was invalid, and in dismissing the counterclaim;</p> <p>That the evidence was sufficient to warrant the submission of the question to the jury as to whether the plaintiff’s son had authority to make the contract.</p> <p>Kellogg, J., dissented.</p>

Appeal by the defendants, James H. Cocks and others, comprising the town board, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered hi the office of the clerk of the county of Nassau on the 5th day of March, 1914, directing the defendants, as members of the town board of the town of Oyster Bay, to pay to the relator $100 due one Edward J. Meehan, and also from a second order of said court, made at the Kings County Special Term and…

<p>Appeal by the plaintiff, Charles H. Breese, from a judgment of the Supreme Court in favor of the defendant, entered in. the office of the clerk of the county of Kings on the 10th day of March, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the defendant, Star Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of April, 1914, denying defendant’s motion for an order directing that certain of the issues herein be tried before the other issues.

<p>Principal and agent — action for broker’s commissions — pleading — complaint — failure to allege non-payment.</p> <p>A complaint in an action for broker’s commissions failing to allege nonpayment, does not contain the “plain and concise statement of the facts constituting each cause of action ” required by subdivision 2 of section 481 of the Code of Civil Procedure, where the other averments thereof are not equivalent to an allegation of non-payment.</p>

<p>Practice—pleading — new matter constituting separate defenses must be separately stated and numbered — effect of noticing cause for trial — rule 28.</p> <p>Motion to strike out from the answers of defendants allegations claimed to be irrelevant and redundant, or, in the alternative, to require the defendants to separate said allegations from the denials and to allege them separately as defenses. The action was brought by a stockholder of a corporation to recover for an alleged wrongful cancellation of a lease. Pleadings examined, and held, that the motion should be granted.</p> <p>A plaintiff has an absolute right to have defenses consisting of new matter separately stated and numbered.</p> <p>Such right is not waived by noticing the case for trial, where the motion for relief is noticed within the time required by rule 22 of the General Rules of Practice.</p>

Appeal by the plaintiff, Gertrude L. Hoyt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1913, denying her application.

Appeal by the defendant, Marguerite Fay Hammill, as executrix and trustee, etc., from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1914, denying her motion to make the complaint more definite and certain.

<p>Appeals in both cases by the relators, Allen W. Evarts and others, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1914, as resettled by two other orders entered in said clerk’s office on the 17th day of April, 1914, which orders denied the relators’ applications for absolute writs of prohibition to the Municipal Court and dismissed alternative writs heretofore issued.</p>

Appeal by the defendants, Louis M. Kahnweiler and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1913, upon the decision of the court after a trial at the New York Special Term granting a permanent injunction.

Appeal by the plaintiff, Fanny Light, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1914, denying plaintiff’s motion for an injunction pendente lite and for the appointment of a receiver.

Appeal by the defendants, The Press Publishing Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of January, 1914, upon the decision of the court after a trial at the New York Special Term. The judgment restrained the defendant Dirks from furnishing drawings to the defendant corporation and restrained said corporation from employing him or purchasing drawings from him.

<p>Appeal by the defendant, Jackson Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of October, 1913, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Weinbros Real Estate Company, from an order of, the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1914, denying its motion for judgment on the pleadings.

<p>Attorney at law — professional misconduct — inducing witness to leave State — privilege of witness — self-incriminating 'testimony — privilege of witness under section 584 of the Penal Law.</p> <p>Where an attorney at law, representing a person charged with a felony in receiving a bribe, pays money to the attorney of the person who paid the bribe, and who had been subpcenaed as a witness, for the purpose of inducing him to remain without the State until the charges have been dismissed, he is guilty of serious professional misconduct.</p> <p>The fact that the attorney, when subsequently called as a witness against persons indicted for a conspiracy to prevent the return of the witness who had left the State, testified for the prosecution without waiving the indemnity accorded to him by section 584 of the Penal Law providing that testimony so given shall not be received against the witness upon any criminal investigation, etc., does not render him immune from discipline by the court.</p> <p>The disciplinary proceedings of the Appellate Division in relation to attorneys and counselors at law are not a prosecution for, or a subjecting to, a penalty or a forfeiture within the meaning of section 584 of the Penal Law.</p>

Appeal by the plaintiff, William J. Kindgen, as receiver, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1913, denying his motion for judgment for the relief demanded in the complaint, or in the alternative for an order of reference to take proof of the facts and circumstances set forth in the complaint, or for such other and further relief as may he just.

<p>Appeal by the plaintiff, George E. Connie, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yew York on the 6th day of May, 1913, dismissing the complaint upon the decision of the court after a trial at the Yew York Special Term.</p>

Appeal by the defendant, Roger Williams Silver Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of March, 1913, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of April, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John N. Anhut, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 17th day of April, 1913, convicting him of the crime of bribery, in violation of section 378 of the Penal Law, and also from an order denying his motion for a new trial, and in arrest of judgment.

Appeal by the plaintiff, David Rothschild, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of April, 1914, denying a motion for an injunction pendente lite.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of May, 1913, upon the verdict of a jury for $7,000 and also from an order entered in said clerk’s office on the 24th day of June, 1913, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, F. 0. Linde Company, a corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of March, 1913, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, William Y. Bolitho, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1914, denying a motion to vacate a warrant of attachment for insufficiency of the moving papers.

Appeal by the defendant, Reginald G. Barclay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1914, denying defendant’s motion to strike out parts of the complaint.

■ Appeal by the defendant, New York Life Insurance Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of March, 1913, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’ office on the 3d day of April, 19l3, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Martha F. Hoch, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of January, 1913, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 4th day of February, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the proponent, Harvey F. Beardsley, from a decree of the Surrogate’s Court of the county of Chenango, entered in the office of said surrogate on the 14th day of June, 6 1913, denying probate to an instrument purporting to be the last will and testament of Floyd Wylie, deceased.

<p>Appeal by the defendant, Justine S. Gray, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1914, granting plaintiff’s motion for judgment dismissing the complaint for failure of proof and dismissing defendant’s counterclaim on the merits, with leave to enter judgment accordingly.</p>

<p>Real property — distinction between absolute deed of trust and conveyance in nature of a mortgage — agreement that trustees shall sell lands and devote proceeds to payment of debts of third party, balance returnable to grantor — when agreement does not constitute a mortgage — mortgage tax.</p> <p>There is a distinction between an absolute deed of trust which places the property beyond the control of the grantor and a deed of trust as security in the nature of a mortgage, reserving an equity of redemption to the grantor. In the first case the conveyance is unconditional and . indefeasible, although for the purpose of raising a fund to pay debts. In the latter ease it is for the purpose of securing the debts and is, therefore, defeasible.</p> <p>A conveyance of lands to trustees for the benefit of creditors of the grantor’s deceased husband, made pursuant to an agreement whereby the trustees, endowed with a power of sale, were to pay the creditors of the deceased husband from the proceeds of the sale after deducting expenses, interest on mortgages, etc., the balance to be returned to the grantor, does not create a mortgage, there being no agreement for a reconveyance to the grantor, or for a defeasance.</p> <p>Hence, such agreement is entitled to record without payment of the mortgage recording tax imposed by section 253 of the Tax Law.</p>

Appeal by the plaintiff, Henrietta Eisenbach, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lYth day of April, 1914, granting defendant’s motion for an order requiring plaintiff to bring in her two children as parties defendant.

Appeal by the plaintiff, Early B. McCullen, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of February, 1914, upon the decision of the court after a trial at the New York Special Term. The judgment dismissed the complaint.

Appeal by the plaintiff, Martha T. Brown, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of February, 1914, granting respondent’s motion for judgment on the pleadings, and sustaining its demurrer to the amended complaint, and also an appeal from the judgment entered in said clerk’s office on the 25th day of February, 1914, dismissing the amended complaint pursuant to said…

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendants, Morris H. Rothschild and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of March, 1914, granting a discovery and inspection of the defendants’ books.

Appeal by the plaintiff, His Majesty, The Sultan of Turkey, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of March, 1914, sustaining a demurrer to the second amended complaint. The interlocutory judgment granted plaintiff leave to plead over.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1913, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 30th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Alexander Smith Cochran and another, individually and as executors and trustees, etc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of March, 1914, overruling a demurrer to the amended complaint.

<p>Appeal by Vasco P. Abbott, as assignee, etc., from a decree of the Surrogate’s Court of the county of Hew York, entered in the office of said surrogate on the 30th day of October, 1913, judicially settling the account of William Arrowsmith, as executor of the last will and testament of Penelope McOrea, deceased, and construing said will and directing the distribution of the estate in accordance with the will as so construed.</p>

Appeal by the defendants, James A. Trowbridge and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of ¡New York on the 17th day of May, 1912, upon the general verdict'of a jury rendered by direction of the court, the court having first submitted certain questions to the jury and taken their special verdict thereon, and also an appeal from an order entered in said clerk’s office on the 16th day of May,…

<p>Appeal by the plaintiff, Peter Markevich, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of March, 1914, requiring plaintiff’s attorneys within three days to disclose plaintiff’s address to defendant’s • attorneys, and staying of proceedings meanwhile.</p>

Appeal by the defendant, David Soharfstein, from a judgment of the County Court of Kings county, rendered against him on the 24th day of February, 1914, convicting him of the crime of perjury.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendants, Joseph J. Baughman and others, appearing specially for that purpose, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 9th day of April, 1914.

<p>Municipal corporation — assessment for improvement of street, city of Mew York—authority of court to modify assessment by board of estimate and apportionment.</p> <p>The power of the court, under sections 959-962 of the Greater Mew York charter, to vacate or modify an assessment in proceedings for the regulating and grading of streets should only be exercised where “ fraud or substantial error ” is shown.</p> <p>The result of a determination of the board of estimate and apportionment as to the liability of the city of Mew York for the cost of filling in a gravel pit which had been excavated by it within the line of the street to be improved, does not constitute a “substantial error,” within the meaning of the statute, simply because it may not meet the idea of the court as to absolute justice.</p> <p>Where the board of estimate and apportionment has denied an application to reduce the assessment so as to charge against the city of Mew York the whole cost of filling in such gravel pit, not because of the equities, but because the petition was not signed by a majority of the owners of the assessed property as required by section 436 of the Greater Mew York charter, the court has no authority to modify the assessment.</p>

Appeal by the defendant, Emerson Colburn, from a judgment of the Supreme Court, rendered against him on the 13th day of April, 1910, also from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 2d day of April, 1910, disallowing a demurrer to the indictment, and also from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Kings on the 6th day of June, 1910, denying the…

Appeal by the defendant, George L. Havens, from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of said county on the 4th day of December, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, J. Henry Small Realty Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of January, 1914.

Separate appeals, each raising a different question, by the defendant Hattie E. Weisz and the defendants Charles S. Hirsch and others, individually, from a judgment of the Supreme Court in favor of the defendant Louise S. Bucki, entered in the office of the clerk of the county of Hew York on the 1st day of December, 1913, upon the decision of the court after a trial at the Hew York Special Term. The action was brought for the construction of a will.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Court of Special Sessions of the City of New York, entered on the minutes of said court on the' 29th day of December, 1913, sustaining a demurrer to the information herein.

Appeal by the plaintiff, Laurence S. Bolognino, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of January, 1914, upon the decision of the court after a trial at the New York Special Term dismissing the complaint upon the merits. The action was brought to compel specific performance of an executory contract for the sale of real property.

Appeal by the plaintiff, Martin Campbell, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 15th day of January, 1914, upon the dismissal of the complaint as to the respondent by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, Oscar Hammerstein and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1913, and also from an order entered in said clerk’s office on the 10th day of December, 1913, granting the plaintiff’s motion for judgment on the pleadings pursuant to which order the judgment appealed from was entered.

<p>Bills and notes — action upon promissory notes — failure to establish defense of payment — principal and agent — disqualification of agent acting for his own interest.</p> <p>Action to recover upon several promissory notes made j ointly by some of the defendants in favor of the defendant R, who indorsed the instruments to the plaintiff bank. The defense was payment, on the theory thatR, to whom payment was alleged to have been made, was an officer of the plaintiff, with authority to receive payment. It appeared that the maker, who is alleged to have paid the notes, was closely related in business with R, and that the latter had little or nothing to do with the actual management of the plaintiff’s affairs. It appeared also that the plaintiff bank had never received the moneys alleged to have been paid. On all the evidence, held, that the defense of payment, in whole or in part, was not established, and that the plaintiff was entitled to judgment.</p> <p>Held, further, that as R appropriated to his own use the moneys alleged to have been paid and assumed primary liability on the notes in consideration of the settlement of debts owing to the person who made the payments, he was personally interested in the transaction, so as to disqualify him from acting as agent of the bank in receiving payment, there being no ratification of his acts.</p>

Appeal by the defendants, Henry Gabriels and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 24th day of March, 1913, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 2d day of April, 1913, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Eugene A. Rudiger and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 26th day of June, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of September, 1913, denying defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ernest D. Anderson, from so much of an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1914, as sets aside the verdict of a jury in plaintiff’s favor against the defendant Richard Weber, and dismisses the complaint as to him, and also an appeal from so much of the judgment, entered in the office of the clerk of the county of New York on the 28th day…

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1913, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, The London and Southwestern Bank, Limited, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1913, vacating a judgment against defendant, entered upon confession, with notice of an intention to bring up for review an order of reference made herein and entered in the office of the clerk of the county of New York on the 14th day of July, 1911.

Appeal by the plaintiff, Edward Brinley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1914, upon the dismissal of the complaint by direction of the court at the close of, plaintiff’s case, and also from an order entered in said clerk’s office on the 27th day of January, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Martin M. Mulhall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of November, 1913, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of December, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mark 0. Meagher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of May, 1913, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 9th day of May, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Alfred Johnson, from a judgment of the County Court of Queens county in favor of the defendant. entered in the office of the clerk of said county on the 29th day of January, 1914, upon the dismissal of the complaint at the opening of the trial by direction of the court.

Appeal by Mary E. Gillette and others, opposing property owners, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 30th day of March, 1914, denying their motion to vacate the decision of the commissioners herein, with notice of an intention to bring up for review an order entered in said clerk’s office on the 9th day of February, 1914, directing the re-entry, nunc pro tunc, of the order appointing the commissioners…

Appeal by the defendant, William E.'Wheelock, from an order of the Supreme Court, made at the Kings County Special Term-and entered in the office of the clerk of the county of Kings on the 4th day of December, 1913.

Appeal by the defendant, Benjamin Fein, from a judgment of the Court of General Sessions of the Peace of the county of New York, rendered against him on the 23d day of January, 1914, convicting him of the crime of assault in the second degree.

Appeal by the defendant, National Lead Company, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 10th day of December, 1913, upon the decision of the court after a trial at the New York Special Term.

<p>Master and servant — action for wrongful discharge failure of employee to furnish bond — verdict against weight of evidence — appeal—issues not raised at trial.</p> <p>Action to recover damages for an alleged wrongful discharge. The plaintiff was employed as a bookkeeper in a hotel and also handled money. He was discharged because a surety company refused to continue his bond, which, the defendant claimed he was required to furnish by the contract of employment. Evidence examined, and held, that a verdict for the plaintiff, based upon a finding that the furnishing of the bond was not an absolute condition of the hiring, was against the weight of evidence.</p> <p>A contention that the original contract, was modified by agreement of parties cannot be raised for the first time upon appeal.</p>

Appeal by Frederick Wills from so much of an order of the County Court of Kings county, entered in the office of the clerk of said county on the 26th day of-May, 1913, as directs the appellant to pay the sum of $250 to each of the commissioners herein.

Appeal by the defendant, Bernheimer & Swartz Pilsener Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of November, 1913, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 18th day of November, 1913, denying the defendant’s motion for a new trial made upon the minutes.

<p>Bills and notes — contract — agreement to pay proceeds of notes to third person —consideration.</p> <p>Where a bank discounted notes for the payee and took his cheek drawn on the proceeds as collateral security for payment, agreeing to hold the check during the life of the notes or renewals thereof, and upon the payment of the notes to place the money at the disposal of a third party, a corporation, the bank cannot, upon the payment of the notes, refuse to pay to the corporation upon the theory that there was no consideration inuring to it.</p>

Appeal by the defendant, The Procter & Gamble Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 14th day of November, 1913, upon the verdict of a jury for §7,500, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ansonia Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 6th day of November, 1913, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ansonia Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of October, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 6th day of November, 1913, denying defendant’s motion for a new trial made upon the minutes.

Motions by the plaintiff, Godfrey Passino, for an order granting a reargument, and also for an order granting permission to appeal to the Court of Appeals from the judgment of affirmance entered on the order of the Appellate Division, Third Department, affirming the judgment entered on the decision of the County Court of Clinton county. (See 162 App. Div. 920.)

Appeal by the defendants, Catharine Moran and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer ón the 28th day of January, 1914, upon the decision of the court after a trial before the court, a jury having been waived.

<p>Principal and agent — breach of contract creating exclusive sales agency — injunction restraining principal from selling its products — unilateral contract.</p> <p>A plaintiff, suing to recover damages for the breach of an alleged contract giving him the exclusive sales agency for products manufactured by the defendant is not entitled to an injunction pendente Ute restraining the defendant from selling its own products. This, because if the plaintiff were unlawfully discharged, or has any claim under the contract, he has adequate remedy at law.</p> <p>A contract creating such agency and providing for a renewal thereof upon the performance of certain conditions by the plaintiff is unilateral, if in the renewal contract plaintiff did not bind himself to make sales, oído anything at all.</p>

Appeal by the plaintiff, Patrick A. Powers, from three orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April, 1914. Two of said orders sustained the separate demurrers of the defendants to the amended complaint herein and granted their separate motions for judgment on the pleadings; the third order denied plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, Stephen J. Stilwell, from a judg-. ment of the Supreme Court, rendered against him on the 28th day of Hay, 1913, convicting him of the crime of bribery, and also from the order made on the same day denying his motion to set aside the verdict and for a new trial.

Appeal by the defendants, Samuel Einhorn and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of September, 1913, denying a motion to vacate or to modify an order for the examination of the defendant William Einhorn before trial.

Appeal by the defendant, J. 0. Turner Cypress Lumber Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1914, upon the report of a referee appointed to hear and determine the issues.

Appeal by the plaintiff, Orlando W. Brown, from an order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 2d day of October, 1913, setting aside a verdict of a jury in plaintiff’s favor for $10,000 and granting defendant’s motion for a new trial.

<p>Will—rules of construction. — evidence of extraneous facts showing intent of testator.</p> <p>In construing a will the court is obliged to follow the ordinary import of the words employed if there is no ambiguity, regardless of any extrinsic evidence that may tend to contradict them.</p> <p>A testator bequeathed to his executors as trustees all of the stock of a certain corporation “which I now hold or maybe entitled to at the time of my death,” income to be paid to the testator’s wife for life, with a power in the trustees to sell so much of the stock as might be necessary for the support of the wife if the income should prove to be insufficient. On the death of the wife he bequeathed the stock not disposed of to his brother, or his issue, providing, however, that if the brother died before the wife without leaving issue the trust in favor of the wife should determine and she should take the shares of stock then remaining.</p> <p>Held, that the testator distinguished between the stock which he absolutely owned when he made the will and stock which he or his estate might subsequently acquire under his father’s will;</p> <p>That the words “may he entitled to" are ambiguous and that resort may be had to evidence of extrinsic circumstances contemporaneous with the execution of the will in order to ascertain the intent of the testator.</p> <p>Held, further, that a motion to strike out testimony relating to circumstances existing subsequent to the date of the execution of the will should be denied, for the reason that where the subsequent circumstances are in consonance with those existing at about the time of the making of the will, they tend to fortify the latter in seeking, the intention of the testator.</p>

Appeal by the defendant, Oswego Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 22d day of October, 1913, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 23d day of October, 1913, denying defendant’s motion for a new trial made upon the minutes.

<p>Insurance —casualty insurance—failure of insurer to stay execution of judgment against insured—liability of company for services of surgeons employed by insured.</p> <p>Where a casualty insurance company fails to give a bond or undertaking on appeal to stay the execution of a judgment procured against the insured for injuries to its employees, and the insured in order to prevent the sale of his property pays the judgment, he may immediately bring an action against the insurer, although the policy provides that no action shall he under the policy “ unless it shall be brought for loss or expense actually sustained and paid in satisfaction of a final judgment.”</p> <p>When the levy under the execution was discharged by the insured, the judgment then was final within the meaning of the policy, for it had finally resulted in loss or expense to him, which the policy covered.</p> <p>Where a casualty insurance company fails to defend actions brought against the insured by surgeons employed by him to render necessary services to injured employees, the insured may recover the amount of such judgments, where it is bound by the policy to “render to the Company at all times all co-operation and assistance in his power.”</p>

<p>Appeal by the plaintiff, Joel E. Faulkner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 28th day of June, 1912, upon the report of a referee appointed to hear and determine the issues.</p>

<p>Executors and administrators — administrator de bonis non, authority to accept payments on and satisfy judgments — payment into court by defendant for security of prior attorneys—right of defendant to be credited with certain amounts under section 1903 of the Code of Civil Procedure upon reinstatement of judgments against it.</p> <p>Where letters of administration granted to an administrator de bonis non are limited to the prosecution of an action without power to collect or compromise, payment on judgments to the attorney of such administrator are unauthorized, and satisfaction pieces executed by him will he vacated and the judgments reinstated.</p> <p>But where the defendant upon the substitution of attorneys has, pursuant to an order of the court, paid a certain amount of the recovery to the city chamberlain in order to secure the claim of the attorneys of record, it is discharged from liability to such extent.</p> <p>The defendant is also entitled to be credited with such amounts as upon a proper application shall be allowed by the surrogate under the provisions of section 1903 of the Code of Civil Procedure. The application for such allowance may be made by any person interested, including, under the circumstances of the present case, the defendant.</p>

<p>Appeal by the defendant, United Boxboard Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1914, denying a motion to compel plaintiff to pay over to defendant a distributive share of the proceeds of a sale in foreclosure.</p>

<p>Appeal by the defendant, Louis Markheim, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of November, 1913, convicting him of the crime of presenting a false or fraudulent claim to an insurance company, and also from an order denying defendant’s motion to set aside the verdict for a new trial, and also from an order denying his motion in arrrest of judgment.</p>

<p>Municipal corporations—discharge of police officer, city of Mew York — certiorari to compel reinstatement — failure to report the fact that other officer received moneys.</p> <p>Certiorari to review the action of the police commissioner of the city of New York in discharging a patrolman. It appeared that the relator was detailed for detective work, and in co-operation with another police officer was endeavoring to identify persons guilty of a crime. The officer with whom the respondent was working told him that he had received money from a person against whose property the crime had been perpetrated, which was to be used to induce a person to disclose the identity and whereabouts of the person who committed it. The charge against the relator was “ Conduct to the Prejudice of Good Order and Discipline,” in that he had failed to report to the proper authorities the fact that said moneys had been received, in violation of rule 50 of the police department, which provides that members of the police force shall not receive money from citizens without the express permission of the police commissioner.</p> <p>On all the evidence, held, that the relator had been improperly discharged and should be reinstated, because he was guilty of no wrong, and that, under the circumstances, said rule had no application to him personally.</p>

<p>Insurance — indemnity policy construed — liability for injury to employee of brick manufacturer while engaged in dredging canal.</p> <p>A policy of indemnity insurance against injuries to employees of the insured, engaged in “ Manufacturing of brick, clay digging and transferring of clay to yard,” “At and about plant at Newton Hook, Columbia Co., N. Y.,” covers injuries to an employee engaged in dredging a canal from the Hudson river to its plant, which had been constructed by the insured and used by it for more than two years as its chief means in removing supplies to its plant and delivering its manufactured product.</p>

<p>Application by the Association of the Bar of the City of New York to discipline Clifford W. Hartridge, an attorney, for professional misconduct.</p>

Appeal by the defendant, New York and North Shore Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 26th day of February, 1914, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of February, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Attorney and client — duty of Appellate Division to protect attorneys against unjustifiable and malicious attacks — proceeding for professional misconduct dismissed.</p> <p>It is as much the duty of the Appellate Division to protect lawyers against unjustifiable and malicious attacks upon their integrity, and to prevent the use of charges of professional misconduct to enforce claims against members of the profession, as it is to discipline attorneys who have been guilty of misconduct.</p> <p>Where, upon the presentation of charges against a reputable firm of attorneys, based upon their alleged professional misconduct more than twenty years ago, in defrauding the petitioner out of a plan to carry on the business of mortgage insurance which he claims he had intrusted to them for the purposes of incorporation, it appears that the petitioner had sued the attorneys to recover damages for then* alleged misconduct, and that his complaint was dismissed more than ten years ago, upon the ground that there was no cause of action; that this decision was affirmed by the Court of Appeals, and the defendants deny all the charges and plead the prior action against them and the petitioner’s reply thereto presents no new facts which are material, the proceeding should be dismissed.</p>

<p>Appeal by the petitioner, Thomas D. Penfield, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of June, 1914.</p>

Appeal by the plaintiff, Harry A. Kressh, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 1th day of April, 1914, granting respondents’ motion to open their default herein.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 28th day of January, 1913, upon the verdict of a jury, and also from an order entered on the 3d day of February, 1913, denying a motion for a new trial.</p>

<p>Appeal from so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 6th day of January, 1914, as resettled, as denies a motion to strike out the answer and to permit plaintiff to proceed as upon a default in pleading.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 9th day of January, 1914, denying a motion to vacate an order for the examination of defendant before trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 9th day of February, 1914, denying a motion to open default, and also from an order entered on the 16th day of February; 1914, denying a motion for reargument.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 29th day of December, 1913, denying'a motion to strike out as irrelevant certain allegations in the complaint.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 28th day of March, 1913, dismissing the complaint at the close of plaintiff’s case for failure of proof.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 9th day of December, 1912, on the verdict of a jury.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 28th day of May, 1913, upon the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Appeal from a decree of the Surrogate’s Court of Mew York county, entered on the 13th day of January, 1913, settling the account in this proceeding.</p>

<p> Attorney and client— disbarment. </p>

<p> Slander—examination before trial. </p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 2d day of January, 1913, upon a verdict directed by the court.</p> <p>Judgment affirmed, with costs, on opinion of Lehman, J., at Trial Term. Present—Ingraham, P. J., McLaughlin, Clarke, Scott and Hotchkiss, JJ.</p> <p>The following is the opinion delivered at Trial Term:</p>

Judgment and order reversed and new trial granted, with .costs to appellant to abide event, unless the plaintiff stipulates to reduce the verdict to $12,000, and if she so stipulates the judgment is modified and as so modified judgment and order affirmed, without costs. All concurred, except Woodward, J., who voted for affirmance in opinion, in which Howard, J., concurred.

Appeal by the defendant, Charles B. ICrum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 24th day of April, 1913, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 30th day of April, 1913, denying the defendant’s motion for a new trial made upon the minutes. Judgment and order affirmed, with costs.