Volume 167 — New York Appellate Division Reports

Appeal by the defendant, Westchester Fire 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 or about the 23d day of February, 1915, resettling an order which denied the defendant’s motion to vacate an order for the examination of a witness before trial.

Appeal by the defendant, Agricultural 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 or about the 23d day of February, 1915, resettling an order which denied the defendant’s motion to vacate an order for the examination of a witness before trial.

Appeal by the defendants, Carnegie Trust 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 New York on the 11th day of March, 1914, as originally entered, and as amended by an order entered in said clerk’s office on the 19th day of March, 1914, nunc pro tunc, as of the 11th day of March, 1914.

Appeal by the defendants, Carnegie Trust 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 New York on the 12th day of March, 1911, upon the decision of the court after a trial at the New York Special Term. The judgment decreed that the instrument sued upon be reformed, and that plaintiff have judgment upon it as so reformed.

<p>Appeal by the relator, Ben Young, Jr., from an order of the County Court of Steuben county, entered in the office of the clerk of said county on the 10th day of April, 1914, dismissing a writ of certiorari herein, and sustaining the action of the county treasurer in refusing to transfer a liquor tax certificate.</p>

Appeal by the defendant, Elm City 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 Chautauqua on the 24th day of January, 1914, upon the decision of the court, a jury having been waived.

<p>Appeal by the defendant, Columbia National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of July, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of July, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the relator, The Importers and Traders National Bank of New York, 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 June, 1914, dismissing a writ of certiorari to review assessments of taxes for the years 1901-1907, inclusive, on the ground that the writ and the proceedings thereunder are barred by the provisions of chapter 74 of the Laws of 1909.

Appeal by the defendant, Buffalo Foundry and Machine Company, 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 21st day of March, 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 24th day of March, 1913, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Alexander Yassie, from an order of the Court of Special Sessions of the City of Yew York, Part Two, Borough of Brooklyn, entered in the office, of the clerk of said court on the 3d day of August, 1914, adjudging defendant to be the father of the child of the complainant, and ordering him to support it and to give an undertaking for the performance of the order.

Appeal by the defendants, The Board of Estimate and Apportionment of the City of New York 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 3d day of December, 1914, granting relator’s application for a peremptory writ of mandamus herein.

Appeal by the plaintiffs, Robert E. Farley and another, as executors and trustees, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 24th day of September, 1914, dismissing their complaint upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the defendant, Edward Fitzgerald, from a judgment of the County Court of Westchester county, rendered against him on the 19th day of November, 1913, convicting him of a violation of section 480 of the Penal Law.

Appeal by the defendants, Margaret Shearan 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 Kings on the 16th day of December, 1914, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant, Westchester County Brewing Company, 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 18th day of January, 1915, modifying the report of a referee appointed to ascertain the damages sustained by reason of an injunction.

<p>Real property — action under section 1638 of tlie Code of Civil Procedure for determination of adverse claim — effect of judgment in foreclosure upon defendant having estate in land and defendant having only a judgment lien thereon — appearance equivalent to personal service.</p> <p>In an action under section 1638 of the Code of Civil Procedure for the determination of defendant’s adverse claim to certain real property, it appeared that on September 5, 1899, M. was the owner in fee of the premises in question, and on that day executed a mortgage thereon to D., who died in November following and bequeathed such mortgage to his wife. The defendant on March 22,1900, recovered a judgment against M., which became a lien on March twenty-fourth. On June 7,1902, Mrs. D. commenced an action to foreclose her mortgage, making M., his wife and defendant parties. The latter appeared by attorney and waived service of all papers other than notice of sale, and all surplus money proceedings. M. was at that time a non-resident, and although an attempt was made to serve him by publication, the papers were defective. On December 6, 1902, a judgment of foreclosure and sale was entered against all the defendants, under the provisions of which the premises were sold to Mrs. D. and such title as she acquired passed to the plaintiff in April, 1908. Subsequently M. executed and delivered to her a quitclaim deed. Thereafter defendant, before the expiration of his judgment lien, obtained leave to issue execution against M., and attempted to convey on a sale thereunder M’s. interest in the premises.</p> <p>Held, that a judgment should be directed in favor of the plaintiff; that the interest of the plaintiff, who was a mortgagee in possession, could not be sold, at least since the quitclaim deed from M., on an execution issued thereafter.</p> <p>Defendant’s appearance in the foreclosure action was equivalent to due personal service, and hence the judgment and sale cut off and extinguished any lien it had upon the premises.</p> <p>A sheriff’s deed given in pursuance of an attempted sale under a judgment is such a cloud upon the title acquired upon the foreclosure of a prior mortgage that an action will lie to remove the same.</p> <p>There is a distinction between the interests of defendants in a foreclosure action who have an estate in the land, and defendants who have only a judgment lien thereon. As to the former, the effect of the judgment is to transfer such estate or interest. As to the latter, its effect is to bar and extinguish the lien.</p>

Appeal by Harry K. Thaw 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 16th day of March, 1915, as denies his motion for an order directing the warden of the city prison of the city of New York to surrender the appellant to the sheriff of the county of New York, by whom he was then detained, and directing said sheriff to accompany and safely conduct the appellant to the…

Appeal by the relator, Abel I. Smith, Jr., 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 March, 1915, dismissing a writ of habeas corpus herein and directing the sheriff of the county of New York to deliver Harry K. Thaw to the proper authorities to be conveyed to the Matteawan State Hospital.

Appeal by the defendant, James H. Stack, 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 7th day of January, 1914, upon the decision of the court after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendant, Thomas Harrington’s Sons 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 28th day of May, 1914, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 29th day of May, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the People of the State of New York, 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 Kings on the 28th' day of October, 1913, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Empire City Racing Association, 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 18th day of February, 1915.

Appeal by the defendant, Snare & Triest 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 17th day of April, 1914, upon the verdict of a jury for $3,750, and also from an order entered in said clerk’s office on the 15th day of April, 1914, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the New York Bible and Common Prayer Book Society from part of a decree of the Surrogate’s Court of the county of Rockland, entered in the office of said Surrogate’s Court on the 9th day of June, 1914, holding the legacy to the appellant to be invalid and void by reason of the death of the testator within two months after the making of the will.

Appeal by the defendants, Emanuel J. Myers and others, 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 15th day of April, 1914, denying their motion for a judgment on the pleadings. The venue of the action was thereafter and on the 8th day of May, 1914, changed to New York county.

<p>Municipal corporations — public administrator, county of Bronx — appointment of subordinates—statutes construed—appointees not public officers—mandamus to compel payment of salary.</p> <p>The Legislature did not confer upon the public administrator of the county ' of Bronx the authority to appoint subordinates whose salaries shall be payable out of the public funds. It was intended that he should at his own expense employ such service as may be necessary to enable him properly to perform the duties of his office, and his employees are not public officers and do not hold public positions.</p> <p>Hence, a person whom he has appointed as stenographer and typewriter is not entitled to a peremptory writ of mandamus requiring the Comptroller of the State of New York and the city paymaster to pay her salary. Scott, J., and Ingraham, P. J., dissented, with opinion.</p>

<p>Appeal by the plaintiff, Eva Black, from so much of an interlocutory judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Kings on the 15th day of October, 1914, as overrules her demurrer to the fourth separate defense in defendant’s amended answer.</p>

Appeals by the defendants, Marshall 0. Terry and another, as executors, etc., and others, 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 Westchester on the 8 th day of July, 1914, upon the decision of the court after a trial at the Westchester Special Term. The judgment construed the will of Ambrose M. McGregor, deceased, and the various appellants appeal from different parts thereof.

Appeal by the City of New York and another 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 Richmond on the 7th day of January, 1915, denying their application for the appointment of commissioners of appraisal herein.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Held: that she may hold $300 thereof, being the rent for November.

Appeal by the defendant, William M. Barrett, as president, etc., 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 November, 1914, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of November, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the judgmeut debtor, Standard Plunger Elevator 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 March, 1915, denying a motion to vacate an order for the examination of the defendant company herein by its president and treasurer.

Appeal by the defendant, Thomas F. Sanford, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 9th day of November, 1914, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case.

Appeal in each case by the plaintiff, Julia Morris Curtiss Lawrence, and by the defendant, United States Fidelity and Guaranty Company, 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 19th day of August, 1914, upon a decision of the court dismissing the complaint after a trial at the New York Special Term.

Appeal by the defendant, Harry P. Fairchild, 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 18th day of May, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of May, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Patrick J. Hangley, 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 October, 1914, 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 same day denying appellant’s motion for a new trial made upon the minutes.

Gross-appeals by the plaintiff, Joseph Schanz, and by the defendant, Carl Sotscheck, from parts of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of July, 1914, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Frederick H. Wallace, as administrator, 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 January, 1915, denying his motion to set aside an order of publication in this action and an alleged service of the summons and complaint pursuant thereto.

Appeal by the defendants, Isidore D. Morrison and another, from a 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 or about the 4th day of December, 1914, affirming a judgment of the City Court of the City of New York in plaintiff’s favor, and also affirming an order of said court denying defendants’ motion for a new trial.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 8th day of February, 1915, transferring this action for trial from the trial calendar to the Special Term calendar.

<p>Sale — conditional sale — waiver by subsequent agreement of provisions of Personal Property Law as to sale of property retaken by vendor.</p> <p>Where the vendor of a piano, at the request of the purchaser under a contract of conditional sale who had defaulted in payment, took the instrument upon storage until she should be able to pay the storage and cartage, and after holding it under such agreement and without further payment for several months, upon her further request made a new agreement under which the piano was to be surrendered, and the purchaser whenever ready to buy another should be allowed all payments on the first contract, less storage and interest, the provisions of section 65 of the Personal Property Law as to the sale of property retaken by a conditional vendor were waived by the new contract.</p>

Appeal by the defendant, Eagle Insurance Company of London, England, 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 31st day of December, 1914, upon a decision of the court after a trial at the New York Special Term. The decision declared certain transactions void for usury, and directed that certain instruments be delivered up and canceled.

Appeal by Edwin 0. Hall, petitioner, named as executor in the last will and testament of Lizzie H. Holme, deceased, and by others, beneficiaries under said will, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 27th day of January, 1915, granting a motion by the contestant for leave to amend his answer and to have a jury trial.

Appeal by Leicester Holme, contestant, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 4th day of March, 1915, denying his motion to vacate and set aside a decree admitting to probate the will in this proceeding, and granting letters testamentary thereon, and also from an order entered on the 9th day of March, 1915, denying his motion for a reargument.

<p>Practice — discontinuance of suit by infant.</p> <p>Where in a suit by an infant no testimony has been taken, no costly preparation for trial incurred, and no hearing had on the merits, and the defendant has sought no affirmative recovery, but has claimed that plaintiff has an adequate remedy at law, an order granting leave to discontinue was within the discretion of the court at Special Term.</p> <p>Strong grounds must be shown to move the court to force an infant to carry on a litigation which is clearly against her interests.</p> <p>Appeal by the defendant, Iva H. Ambrosius, as administratrix, etc., 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 19th day of February, 1915, as resettled by an order entered in said clerk’s office on the 25th day of February, 1915, denying her motion to vacate an order discontinuing this action.</p>

Appeal by the plaintiff, Cutler Mail Chute Company, 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 4th day of May, 1914, both as originally entered and as enlarged by an order entered in said clerk’s office on the 12th day of May, 1914. The judgment was entered upon a dismissal of the complaint by direction of the court at the close of the whole case.

Appeal by the plaintiff, F. V. Smith Contracting Company, 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 February, 1914, 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 27th day of March, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Louise C. Butler 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 14th day of January, 1915, as resettled by an order entered in said clerk’s office on the 21st day of January, 1915, overruling demurrers to the complaint.</p>

Appeal by the defendant, John K. Doran, 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 March, 1914, denying his motion for a modification of an order for an execution under section 1391 of the Code of Civil Procedure.

Appeal by the plaintiff, Gustav Gerber, 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 14th day of December, 1914, affirming an order of the City Court of the City of New York denying the plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the defendant, Frank Maestry, from a judgment of the Supreme Court, Criminal Term, rendered against him on the 10th day of November, 1913, convicting him of the crime of murder in the second degree, and also from an order entered in the office of the clerk of the county of New York on the 10th day of November, 1913, denying his motion for a new trial.</p>

Appeal by the plaintiff, The Gotham National Bank of New York, 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 6th day of February, 1915, vacating a warrant of attachment herein against defendants’ property granted on the ground of their non-residence.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The submission is on the following facts:. The plaintiff is the owner of an apartment house covering the block bounded by Broadway, West End avenue, Seventy-eighth and Seventy-ninth streets, which was opened for business in the month of August, 1908, and was called “The Apthorp,” by which name it has since been commonly known.

Appeal by the defendant, New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 21st day of October, 1913, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Oeetioeaei issued out of the Supreme Court and attested on the 4th day of June, 1913, directed to Martin S. Decker and others, constituting the Public Service Commission of the State of New York, Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in this matter.</p> <p>This is a special proceeding to review by writ of certiorari the order and determination of the Public Sei’vice Commission of the State of New York, Second District, requiring the relator to cease and desist from collecting from passengers on its street car lines in the city of Utica more than five cents for one continuous ride in either direction between any point on its Blandina street line and any point on its South street line.</p>

Certiorari issued out the Supreme Court and attested on the 23d day of December, 1914, directed to the Public Service Commission for the First District of the State of New York and Edward E. McCall and others, as commissioners or members of said Commission, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in denying the application of the relators for an order authorizing the issuance of…

<p>Appeal by the plaintiff, New York Electric Lines Company, 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 22d day of May, 1912, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Mary Schiemann, as administratrix, etc., 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 30th day of December, 1913, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, The Delaware, Lackawanna and Western 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 28th day of January, 1915, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 26th day of January, 1915, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — liability of proprietor of store for maintaining swinging doors between departments with different floor levels — contributory negligence.</p> <p>Where it appears in an action for personal injuries that the proprietor of a grocery store and butcher shop maintained swinging doors between the one and the other, the platform extending from the grocery store thirteen and one-half inches beyond the doors and then dropping to the lower level of the butcher shop by a step of nine and one-half inches, and that a customer who had previously been in the grocery store, but had never been in the butcher shop, without anything to call her attention to the difference in level between the two, caught her heel on the edge of the platform as she Avas proceeding through the doors from the grocery to the butcher shop and fell to the floor, the negligence of the proprietor of the store was for the jury.</p> <p>Whether or not the customer was guilty of contributory negligence was also a question for the jury.</p>

<p>Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, entered in the office of the clerk of said court on the 26th day of February, 1915, granting a motion in arrest of judgment.</p>

Appeal by the plaintiff, Edward F. Cole, 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 16th day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of December, 1914, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by Frank Hasbronck, as Superintendent of Insurance and as official liquidator of the Empire State Surety 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 24th day of December, 1914, denying a motion to confirm his report rejecting certain claims herein as contingent.

Appeal by the defendants, John L. Sutphen 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 Lurk on the 27th day of March, 1914, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Katherine F. Lindemann, 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 29th day of January, 1915, denying her motion for judgment on the pleadings after she had interposed a demurrer to the complaint.

<p>Cross-appeals by Mary 0. Thompson, individually and as executrix and administratrix, etc., and by the Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 10th day of December, 1914, modifying, and affirming as modified, an order fixing the transfer tax upon this estate, with notice by Mary C. Thompson of an intention to bring up for review an order of said Surrogate’s Court entered on the 4th day of June, 1914, including certain property among the taxable assets.</p>

Appeal by the plaintiff, Tina Pincus, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of blew York on the 20th day of June, 1914, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by Zettie Dalsimer, as executrix, etc., from so much of an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 6th day of August, 1914, as affirms part of a prior order assessing the transfer tax herein.

<p>Waters and watercourses — control and development of navigable streams — rights of purchasers of land under navigable stream to reclaim the same — effect of establishment of bulkhead line by State or Federal government — injunction.</p> <p>The control and development of all navigable streams remain within the ultimate jurisdiction of the Federal government, and all persons who acquire by grant from the State title to land under water, within the limits of the stream, do so subject to the exercise by the Federal government of its power to determine how far such streams may be encroached upon.</p> <p>The right of purchasers of land under a navigable stream to fill it in and reclaim it may be taken away by subsequent acts of the State and the United States, and the waters covering the land preserved for the uses of commerce and navigation precisely as if no grant had been made. The purchasers retain the naked fee to the soil under water, but without the right to impede or prevent the use of the waters for the purposes mentioned.</p> <p>Hence, the owners of land under the Hudson river, which was originally outside of the high-water mark, and which, upon the separation of the colonies from Great Britain became vested in the State of New York, were, by the act of the Federal and State governments in establishing a bulkhead line, prevented from reclaiming the land under water by filling in beyond the line thus established, and, therefore, are not entitled to an injunction restraining the use of the waters beyond such line for purposes of navigation.</p>

Appeal by the defendant, J. Howard Taylor, from a 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 or about the 19th day of November, 1914, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, seventh district.

<p>Motion to punish for contempt in refusing to testify before a referee.</p>

Appeal by the defendants, Edward A. Ridley and another, 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 12th day of June, 1913, upon the decision of the court after a trial at the New York Special Term. The judgment appealed from directed defendants to account to the plaintiff.

Appeal by the defendants, Willis Sharpe Kilmer and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 15th day of January, 1915, in so far as it denies, in part, their motion for a bill of particulars.

Appeal by the defendants, William A. Neiger and another, 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 Sullivan on the 16th day of August, 1913, confirming the report of commissioners appointed to ascertain the compensation to be made defendants for property taken for the purpose of the construction and maintenance of a telegraph line.

Appeal by the defendants, Cassius M. Carrier 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 Erie on the 25th day of March, 1914, upon the decision of the court after a trial at the Erie Special Term, and also from an order entered in said clerk’s office on the same day granting plaintiff an extra allowance of $2,000.

Appeal by the defendant, Albert Poppenberg, from a judgement of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 4th day of January, 1915, upon the decision of the court after- a trial at the Orleans Trial Term, a jury having heen waived.

Appeal by the petitioner, Aaron Bearse, from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 7th day of October, 1914, denying his application to compel the executrix to account herein.

Appeal by the defendant, John H. Kamman, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 4th day of January, 1915, directing him to pay an additional counsel fee of $J50 to plaintiff’s attorney in this action; also, an appeal from an order entered in said clerk’s office on the 3d day of February, 1915, in so far as it directs certain changes in the prior order and purports to direct…

Appeal by the defendant, John H. Kamman, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 9th day of February, 1915, as resettled, directing him to pay to the plaintiff’s attorney herein a certain sum as counsel fee for the preparation and trial of this action, and to pay to plaintiff a certain amount as alimony during the pendency of the action.

Cboss-appeals by the relator, The New York Central and Hudson River Railroad Company, and the defendants, Egburt E. Woodbury and others, 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 Albany on the 26th day of August, 1914.

<p>Motor vehicles—liability of manufacturer for injury to machine caused by defective material or negligence in assembling — pleading — complaint.</p> <p>A manufacturer of an automobile containing defective material or negligently assembled, is liable for injury growing out of such negligence whether such injury be to the person or the property of the purchaser, although the car was purchased through an agent of the manufacturer to whom it had been sold.</p> <p>A complaint which alleges the purchase from the defendant manufacturer by the plaintiff’s assignor of an automobile, and the subsequent injury thereof by reason of the alleged negligence of the defendant in failing to equip such automobile with proper brakes, and in negligently assembling it, with the result that it could not be controlled and ran over an embankment, statés a cause of action.</p>

Appeal by the defendants, William Sohmer, as Comptroller of the State of New York, and another, 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 Albany on the 29th day of December, 1914, granting a peremptory writ of mandamus directed to the State Commissioner of Highways and the State Comptroller.

Appeal by the plaintiff, John Richards, 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 Sullivan on the 30th day of December, 1914, granting defendant’s motion for a bill’ of particulars.

Appeal by the defendant, James Nash Webb, as executor, etc., 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 6th day of April, 1914, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendants, Oommissioners of the Palisades Interstate Park and others, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Otsego on the 3d day of February, 1915, which sent to a referee the questions of fact arising upon a motion for a temporary injunction herein, and adjourned the determination of the motion until such referee should have taken evidence and reported thereon.

Appeal by the plaintiff, Emily Brohan Eberts, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 26th day of January, 1914, upon the decision of the court dismissing the complaint after a trial at the Sullivan Special Term, and also, as stated in the notice of appeal, from the decision upon which the judgment was entered.

Appeal by the relator, Hermann E. Goldschmidt, 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 Albany on the 17th day of December, 1914, denying his motion for a writ of mandamus.

Appeal by the relator, John NT. Moore, from an order of a justice of the Supreme Court, made on the 18th day of August, 1914, dismissing the writ of habeas corpus theretofore issued in this proceeding and remanding the relator to custody.

Appeal by the defendant, The Rutland 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 Franklin on the 22d day of June, 1914, upon the verdict of a jury for 86,000, and also from an order entered in said clerk’s office on the 2d day of July, 1914, denying defendant’s motion for a new trial made upon the minutes.

Reargument of an appeal by the plaintiff, Mary A. Beebe, from a judgment of the Supreme Court in favor of the defendant Schenectady Railway Company, entered in the office of the clerk of the county of Albany on the 27th day of January, 1914, upon the verdict of a jury of no cause of action, and also from an order entered in said clerk’s office on the 20th day of February, 1914, denying plaintiff’s motion to set aside the verdict and for a new trial.

<p>Master and servant — Workmen’s Compensation Law, section 16, construed— right of parents to compensation for death of minor son — parents “ dependent ” upon wages of minor.</p> <p>The parents of a minor, eighteen years of age and unmarried, from whom they received ten dollars k week for board, are entitled, in a proper case, upon his death, to compensation under subdivision 4 of section 16 of the Compensation Law.</p> <p>Parents may be “dependent” upon the wages of a minor within the meaning of the statute.</p>

Certiorari issued out of the Supreme Court and attested on the 15th day of January, 1915, directed to the Public Service Commission of the State of New York, Second District, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in connection with the hearing and determination of the matter of the service and conditions on the lines of the relator in and about the city of Albany, which resulted in an order…

Separate appeals by the defendants, International Railway Company 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 Erie on the 12th day of March, 1914, upon the verdict of a jury for $18,000, and also from orders entered in said clerk’s office on the same day, denying the defendants’ separate motions for a new trial made upon the minutes.

Appeal by the plaintiff, John Crum, from an order of the Supreme Court, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on the 21st day of September, 1914, granting defendant’s motion to set aside the verdict of a jury in plaintiff’s favor for. $1,500, and for a new trial. •

Appeal by the plaintiff, George L. Jaquish, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 6th day of March, 1914, restraining proceedings to enforce a prior order adjudging the defendants guilty of a civil contempt.

Appeal by the Centre Iron Works and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 2d day of November, 1914.

<p>Master and servant — workmen’s compensation — constitutional law — presumption as to legality of claim — evidence — burden of showing that occupation was not hazardous—nature of Workmen’s Compensation Law.</p> <p>Article 1, section 19, of the State Constitution authorizes the creation of the State Workmen’s Compensation Commission by the Legislature and empowers said Commission to enact laws for the adjustment, determina,tionand settlement, with or without trial by jury, of issues which may arise under such legislation. Hence, the fact that the Legislature adopts a peculiar and unusual practice in these proceedings is not an objection to them validity, nor is the provision that a claim shall be presumed to come within the provisions of the act, in the absence of substantial evidence to the contrary, unconstitutional.</p> <p>It follows that the Commission is justified in making an award under group 20 of section 2 of the Workmen’s Compensation Law relating to the manufacture of glass products, porcelain and pottery to a claimant who was injured while handling plate glass on mere proof that he was injured in such occupation. The burden of showing that the claimant was not engaged in a hazardous employment in that at the time of injury he was merely packing glass which had been sold to a customer, an ordinary occupation, is upon the employer and its surety opposing the award.</p> <p>Owing to the presumption created by the statute an employer cannot benefit by withholding facts known to it.</p> <p>Nature of the State Workmen’s Compensation Law and the various ways in which an employer may provide for the security of its employees thereunder, discussed per Kellogg, J.</p> <p>It seems, that as the State, through its Commission, undertakes to make compensation for injuries received in hazardous employments from moneys which the employer has paid in advance for that purpose, or the payment of which he has secured by proper insurance, the State must be held strictly to its obligation to disburse the moneys received under the act.</p> <p>It seems, that under the constitutional amendment authorizing workmen’s compensation the Legislature may from time to time change the rules of evidence and procedure without affecting the party’s usual constitutional rights relating to due process of law.</p>

<p>Appeal by Harry Frohmann and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 20th day of October, 1914.</p>

Appeal by the relator, The New York Central and Hudson River Railroad Company, 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 Albany on the 4th day of December, 1914, equalizing the assessment for a certain special franchise of the West Shore Railroad Company, of which relator was lessee, and confirming it as equalized.

<p>Appeal by The Delaware and Hudson Company, employer and self-insurer, from an award of the Workmen’s Compensation Commission, bearing date the 21st day of November, 1914, awarding compensation for injury to the claimant’s eye.</p> <p>The employment in which claimant was engaged is included in group 3 of section 2 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41).</p>

Appeal by the plaintiff, William D. Stewart, 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 14th day of December, 1914, dismissing the third amended complaint upon the decision of the court sustaining a demurrer thereto, and also from the order made at the New York Special Term and entered in said clerk’s office on the 10th day of December, 1914, which sustained the demurrer to the third…

Appeal by the plaintiff, Hoevel Sandblast Machine 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 13th day of February, 1915, denying amotion for an injunction pendente lite.

Appeal by the defendant, Lawrence Fogel, from a judgment of the Court of General Sessions of the Peace in and for the County of New York affirming a judgment of a City Magistrate’s Court of the City of New York convicting the defendant of disorderly conduct tending to a breach of the peace.

Appeal by the defendants, Eichard Carvel 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 23d day of December, 1914, upon a decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Warren Putnam Newcomb, as executor, etc., 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 20th day of October, 1914, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Max S. Grifenhagen, as sheriff, 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 February, 1915, granting a peremptory writ of mandamus, requiring him as sheriff forthwith to sell, as provided by law, by virtue of an execution duly issued to him, all the right, title and interest of one Mackintosh in and to 755 shares of the capital stock of the…

Appeal by the defendant, Max Jagerhuber, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 24th day of March, 1915, denying his motion for a retaxation of costs.

<p>Appeal by the defendants, John Farson, Jr., 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, 1915, granting the plaintiff’s motion to strike the name of John A. McElroy, joined as a defendant herein, from the summons and complaint, and for leave to serve a proposed amended complaint, a copy of which was annexed to the motion papers, upon payment of costs after notice of trial and ten dollars costs of the motion, “without prejudice to proceedings heretofore had herein, provided that the admissibility of all testimony taken before trial or by commission then existing and capable of being offered shall be determined by the justice presiding at the trial, and provided, subject to the provisions of section 830 of the Code of Civil Procedure, that the testimony heretofore taken upon the trial of this action shall not stand,” and further providing that the defendants shall have twenty days after the service of the proposed amended complaint “ in which to answer,” and that the cause be placed upon the day calendar for the 1st day of March, 1915, without the filing of a new note of issue or service of a notice of trial.</p>

Appeal by Eda K. Loeb and others, as executors, etc., and another, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 30th day of November, 1914, affirming a prior order assessing a transfer tax against a legacy to the Hebrew Charities Building.

<p>Appeal by the defendant, Max Finkelstein, from three judgments of the Court of Special Sessions of the City of New York, Part I, Borough of Manhattan, rendered against him on the 15th day of December, 1914, convicting him of the crime of violating the Cold Storage Law.</p>

<p>Injunction—reference to assess damages resulting from injunction — costs — liability of surety upon injunction bond.</p> <p>The necessary and reasonable expenses (exclusive of counsel fees) of a reference to assess damages resulting from an injunction, are costs and not a part of the damages, and the surety on the injunction bond may be held liable for such expenses in addition to the amount of the bond; but the counsel fees incurred upon such a reference are a part of the damages and must be so considered in enforcing the surety’s liability.</p>

Appeal by the plaintiff, Aaron P. Huffmire, from a judg- • ment of the Supreme Court in favor of the defendánt,' entered in the office of the clerk of the county of Schenectady on the 17th day of June, 1914, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Sale —conditional sale — action of replevin by seller — defense by way of recoupment for breach, of warranty — counterclaim — Personal Property Law, section 150, construed — acceptance by purchaser does not discharge seller from liability for breach of warranty.</p> <p>Under section 150 of the Personal Property Law, as added by chapter 571 of the Laws of 1911, providing that where there is a breach- of warranty by the seller the buyer may accept or keep the goods and set up against the seller the breach of warranty by way of recoupment, a buyer made a defendant in an action in replevin to recover the possession of property purchased under a conditional contract of sale may, after electing to accept and retain the property, plead a breach • of warranty as a defense by way of recoupment, but cannot allege damages sustained by the breach of warranty as a counterclaim.</p> <p>This provision of the Personal Property Law modifies the common-law rule that the buyer of personal property upon a conditional sale has no right in an action of replevin to recoup, set off or counterclaim the damages sustained by a breach of warranty.</p> <p>Acceptance of property by a purchaser does not discharge the seller from liability for breach of warranty in the absence of an agreement to that effect.</p> <p>Smith, P. J., dissented.</p>

<p>Master and servant — right of claimant to compensation for “total permanent disability ” under subdivision 1 of section 15 of Workmen’s Compensation Law.</p> <p>A claimant injured by having his right hand severed at the wrist, who has previously lost his left hand, is entitled to compensation for “ permanent total disability” under subdivision 1 of section 15 of the Workmen’s Compensation Law.</p> <p>Woodward, J., dissented.</p>

Appeal by Anna de la Gardelle, claimant, from an order of the Workmen’s Compensation Commission, entered in the office of said Commission on the 16th day of November, 1914, dismissing her claim herein, and also from the conclusions of fact, rulings of law and decision of said Commission bearing date the 17th day of November, 1914.

The mother being dead, the father while on his deathbed gave the custody of the infant to his sister, with whom the infant still resides. Held: that, although both claimants to the right of guardianship were well fitted for that duty, it was proper for the court to appoint the husband of the father’s sister.

<p>Real property—Vendor and purchaser—specific performance of contract to purchase.</p> <p>In an action to recover a payment ón a contract for the purchase of an island, with the adjacent land under water, in which the defendant interposed a counterclaim demanding specific performance, it appeared that after the execution of the contract many objections were made to the title, but at the time of the purchaser's refusal to complete the contract, all of said objections had concededly been met, except an alleged overlapping of land under water included in the contract by an earlier grant, and this had not been considered a serious defect. Evidence examined, and held, insufficient to establish that the alleged overlap existed, and that a judgment requiring the specific performance of the contract should be affirmed.</p>

Appeal by the plaintiff, James J. Duffy, 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 15th day of December, 1914, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the plaintiff, Simeon M. Barber, 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 12th day of April, 1915, granting the motion of a purchaser at a tax lien sale to be relieved of his bid.

Appeal by the defendant, Mistrot-Munn Company, Inc., 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 23d day of November, 1914, sustaining a demurrer to the first separate defense set up in the amended answer upon the decision of the court after a trial at the New York Special Term

Appeal by the defendants, Lawson Purdy and others, as commissioners, 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 30th day of November, 1914, reducing an assessment for the purposes of taxation and confirming it as reduced.

Appeal by the plaintiffs, Francis P. McNichol and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 18th day of February, 1915, upon the decision of the court after a trial at the Bronx Trial Term, the issues having been withdrawn from the jury by consent.

Appeal by the defendant, National Surety Company, 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 2d day of March, 1915, setting aside the verdict of a jury in defendant’s favor and granting a new trial.

<p>Sale—vendor’s lien on personal property — statutes construed — extinguishment of lien by delivery of warehouse receipt.</p> <p>The common-law rule that a vendor’s lien on personal property is extinguished where the buyer acquires both title and possession from the seller, still exists and is incorporated into the present Personal Property Law.</p> <p>Thus, where a seller of goods delivers to the buyer a negotiable warehouse receipt, he cannot afterwards replevy the goods from a trustee appointed on the bankruptcy of the buyer, for. the negotiation of the receipt vested the buyer both with title and right of possession.</p> <p>Section 143 of the Personal Property Law and section 133 of the General Business Law are designed only to protect an innocent purchaser of goods for value without. notice after the seller has stopped the goods either by virtue of his right of stoppage in transitu, or under his seller’s lien; they do not change the common-law rule that a seller loses his lien by transferring to the buyer a negotiable warehouse receipt representing the goods sold.</p> <p>Ingraham, P. J., and McLaughlin, J., dissented.</p>

Appeal by the defendants, Wahlig & Sonsin Company and others, 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 26th day of June, 1914, setting aside the dismissal of the complaint herein and restoring the case to the trial calendar for trial. The complaint had been dismissed by the court at the close of the whole case and judgment had been entered thereon.

<p>Sale — action for goods sold and delivered — defense — breach of warranty—waiver by failure to return or offer to return goods within reasonable time — damages surviving acceptance.</p> <p>Where, in an action for goods sold and delivered, the defendants pleaded breach of warranty as to quality, both as a defense and as a counterclaim, and it appeared that although only a brief time was necessary to make an examination of the goods, the defendants made no attempt to make such examination and made no offer to return the goods until more than two weeks after them receipt, the breach of warranty will be deemed to have been waived.</p> <p>The only right which survived defendants’ acceptance of the goods was one for damages, which was not sustained by the evidence.</p>

Appeal by the defendants, Edward G-. Alsdorf 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 23d day of October, 1914, overruling a demurrer to the complaint interposed on the ground that it failed to state facts sufficient to constitute a cause of action.

Appeal by the defendants, Max Cohen and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 4th day of January, 1915, upon the decision of the court after a trial at the Bronx Special Term. The judgment adjudicated a lien upon premises described in the complaint and appointed a referee to ascertain the amount of plaintiff’s interest in and lien upon such premises.

Cross-appeals ’ by the plaintiff, James Pollitz, and the defendants, the Wabash Railroad Company 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 26th day of May, 1914, upon a decision of the court after a trial at the New York Special Term.

Appeal by the defendant, New York Telephone Company, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 5th day of J une, 1914, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, second district, in plaintiffs’ favor.

<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 plaintiff, Stándish Chard, as receiver, etc., 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 14th day of May, 1912, granting the defendant’s motion for a new trial made upon the minutes and setting aside the verdict of the jury in plaintiff’s favor.

Appeal by the defendant, William H. Harrison, from a determination and order, 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 4th day of December, 1914, affirming a judgment of the City Court of the City of New York in plaintiff’s favor, and also affirming an order of said court denying appellant’s motion for a new trial, and also an appeal from the order of the City Court of the City…

Appeal by Edward S. Fowler, referee, 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 1st day of March 1915, ordering him to pay to the chamberlain of the city of New York the sum of $140, with interest thereon:

Appeal by the defendant, Harry A. Williams, county treasurer,, from an order of the Supreme Court, made at the Lewis Trial and Special Term and entered in the office of the clerk of the county of Lewis on the 4th day of Januaiy, 1915, granting a motion for a peremptory writ of mandamus.

Appeal by the defendant, James R. Purvis, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 8th day of February, 1915, denying his motion to vacate an order directing substituted service of a summons upon him in this action.

Appeal by the defendant, Henry Finck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 16th day of April, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1914, denying defendant’s motion for a new trial made upon the minutes.

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 10th day of January, 1914, upon the decision of the court after a trial at the Schenectady Trial Term, the jury having been discharged by consent. The judgment also dismissed defendant’s counterclaim.

Appeal by the defendant, New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 21st day of October, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of October, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Duress — action to recover money and property alleged to have been delivered to defendant under duress ■—facts establishing prima facie case.</p> <p>Where, in an action to recover moneys alleged to have been paid, and the value of property alleged to have been delivered by the plaintiff to the defendant under duress, it appears that the defendant’s manager charged the plaintiff, a manufacturer, from whom they had purchased goods, with short measurements, cheating and dishonesty, and threatened him with exposure to the trade, criminal prosecution and arrest unless he complied with them demands and made an agreement to pay a certain amount of money and give his note for the balance; that the plaintiff being alarmed by these threats and relying upon the representations made by defendant’s manager, executed his cheek and a note;; that although on the Saturday when he executed the check he had not enough money in the bank to meet it, he made a sufficient deposit on the following Monday; that when the note, which ran for fourteen days, fell due the plaintiff made a payment thereon by check and from time to time thereafter delivered merchandise to the defendant, to be applied on the note; that although the threats were not repeated at the times when the plaintiff deposited the money to meet the cheek, gave a check to apply on the note, and delivered the merchandise to be credited on the note, he believed the defendant would make him trouble if he did not comply with the demands, a prima facie case for the plaintiff is established.</p>

<p>Bills and notes — guaranty and suretyship — effect of credit by bank of balance of depositor’s account to account of maker of notes of which depositor was guarantor — release of maker of note — right of guarantor to recover against principal.</p> <p>In an action on an assigned claim to recover the balance of the depositor’s account with the defendant bank, it appeared that a steamship company had a deposit account with the defendant and was liable to it as guarantor of the payment of three notes which the defendant had discounted at the request and for the benefit of the depositor; that when two of the notes were due and unpaid, and the depositor was in failing circum stances, the bank credited on its books the balance of the depositor’s account to the account of the maker of the notes, but no credit was indorsed upon the notes themselves, and the notes were renewed twice without deduction on account of such credits, but on a third renewal such deduction was made.</p> <p>Held, that the credits by the bank were merely bookkeeping entries in accounts to which neither the maker of the notes nor the depositor was a party, and were ineffectual to discharge the liability of the maker. Payment of a note in whole or in part by one secondarily liable thereon does not discharge the obligation of the maker.</p> <p>The action of the bank was not a bar to the right of the depositor to recover against its principal which arises by virtue of the implied agreement of indemnity.</p> <p>The bank could have sued the maker for the full amount, notwithstanding the payment by the guarantor, and the recovery would have inured to the benefit of the guarantor to the extent of the payment made by it. A cause of action in favor, of the guarantor on the implied agreement of the maker to indemnify it arose the moment its bank balance was appropriated by the defendant, unaffected by the subsequent transactions between the defendant and the maker with respect to the renewal of the notes for the balance.</p>

<p>Mortgage —foreclosure —jurisdiction to try adverse claim of title arising prior to execution of mortgage—trial of issue of estoppel with, respect to such title—when occupant of premises estopped from claiming title toy adverse possession as against mortgagee—when wife of occupant estopped from claiming dower.</p> <p>Although in an action for the foreclosure of a mortgage it is not competent for the court to try an adverse claim of title arising prior to the execution of the mortgage, it is competent for the court to try and decide an issue of estoppel with respect to such title.</p> <p>An occupant of premises, who informs a representative of a title company acting for a prospective mortgagee that all of the premises are owned and in the possession of the proposed mortgagor, by failing to assert any claim of title, is estopped from subsequently making'claim toy adverse possession against the mortgagee, which, in making the loan relied on such statements.</p> <p>Where it does not appear that the title of such occupant was complete toy adverse possession prior to the execution of the mortgage, his wife is also estopped by his statements from asserting a claim to her right of dower.</p>

<p>Appeal by the plaintiff, Anna J. Fulton, from a judgment of the Supreme Court in favor of the defendant Bunt, entered in the office of the clerk of the county of Bronx on the 17th day of July, 1914, upon the decision of the court after a trial at the New York Special Term.</p> <p>An appeal is taken from said judgment in so far as it dismisses the complaint as against the defendant Bunt and decrees that she is entitled to a release of the mortgage sought to be fore-' closed herein from part of the premises covered thereby, and annuls the appointment of the receiver of rents and discharges him with respect to said part of the premises.</p>

Appeal by the defendant, John J. Williams, 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 March, 1914, 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 25th day of April, 1914, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Jackson Construction Company, Inc., 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 3d day of December, 1914, upon the decision of the court after a trial at the New York Special Term, excepting in so far as said judgment is in favor of Peter Sinnott.</p>

<p>Pleading — action by stockholder against trustees for vi olation of duties — demurrer overruled — when action not derivative from corporation, but representative of other stockholders — when no defect of parties — complaint stating single cause of action for fraud by trustees.</p> <p>Demurrer to the complaint in a suit in equity brought by a stockholder of a corporation in his own behalf and on behalf of other stockholders who were parties to a trust agreement against the trustees to compel them to" account for acts alleged to have been done in excess of their authority and in violation of their duties, etc. The complaint in effect set out that as the corporation was indebted to certain banks, the latter appointed a creditors’ committee to direct the affairs of the corporation until the indebtedness should be paid and the time of payment was extended in consideration of a transfer to said committee as trustees of a majority "of the stock of the debtor corporation, thus giving to the trustees power to manage the corporation with the added power to sell the stock in them discretion for its benefit, or that of its creditors. The plaintiff, with other stockholders, deposited their certificates with the trustees for the purpose of the trust for a period of five years, the same being transferred to the names of the trustees on the books of the corporation. The corporation was engaged in a suit seeking damages from another corporation for the infringement of certain patent rights, which it held by virtue of the assignment of a contract between the inventor and another corporation providing that the damages which might be recovered in the infringement suit should be divided pro rata between the parties to the contract in proportion to their holding of its capital stock. It was alleged that the trustees at a time when they had been advised by counsel that the infringement suit would be successful and would result in a recovery of large damages demanded that the contract assigned to the plaintiff’s corporation be assigned to its creditors whom they represented; and that said trustees conspired with another person to defraud the plaintiff’s corporation and its stockholders who had transferred their stock under the trust agreement, and to that end and without the knowledge or consent of the plaintiff caused his corporation to cancel its contract with the company owning the patent rights; that they individually and for themselves entered into a similar contract with the company owning the patent rights, whereby they were to receive a certain percentage of the recovery in the infringement suit; and that in pursuance of the conspiracy they organized another corporation to which, acting under the trust agreement, they transferred all the property, rights, privileges and franchises of the plaintiff’s corporation, fraudulently retaining to themselves the rights under the contract with the corporation owning the patent rights. It was further alleged that the infringement suit having been decided in favor of the owner of the patent rights, the defendants in fraud of the plaintiff and unknown to him received a large portion of the proceeds of the damages recovered in the form of dividends received from the new corporation, etc. Complaint analyzed, and</p> <p>Held, that the plaintiff had legal capacity to sue for his own benefit and for that of stockholders similarly situated, because the suit was not derivative but representative and brought in behalf of stockholders having rights under said trust agreement and not in the right of the corporation itself;</p> <p>That there was no defect of parties so as to make the complaint insufficient under section 448 of the Code of Civil Procedure in that the number of the stockholders in the plaintiff’s corporation is not stated and it is not shown that it would be impracticable to bring them in, it being alleged that the number of stockholders and the persons who have succeeded to their rights is great;</p> <p>That the complaint in effect pleaded but a single cause of action for breaches of trust and did not attempt to plead a cause of action in the right of the plaintiff’s corporation and hence that causes of action were not improperly united;</p> <p>That the fact that the plaintiff may not be entitled to all the relief demanded is immaterial on demurrer, for it is sufficient that it show that he will be entitled to some relief;</p> <p>That it is not essential in a suit in equity for the plaintiff to show a right to the same relief against all the defendants;</p> <p>That, as the complaint stated a good cause of action against the defendants for a violation of their trust duties, they cannot in support of a demurrer thereto urge that they have already voluntarily accounted, such defense not being available on demurrer.</p>

Appeal by the plaintiff, Charles Brock, 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 December, 1914, sustaining a demurrer of the defendant Anthony & Scovill Company to the amended complaint.

Appeal by the plaintiff, Charles Brock, 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 December, 1914, sustaining a demurrer of the defendant Stephens to the amended complaint.

<p>Appeal by the defendants, Frederick W. Saltzsieder and others, 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 25th day of June, 1914, on the decision of the court after a trial at the New York Special Term.</p>

<p>Municipal corporations — city of Mew York — eminent domain — street opening proceeding — damages to building erected after establishment of grade, but before actual opening of street.</p> <p>Where the city of New York failed for seven years to take any steps to open a street or regulate it after filing the map showing the established grade, and an owner thereupon in good faith erected a building upon the natural grade and not upon the grade as indicated upon the map, and it was eight years more before the city took steps to condemn the property, and it was a year more before commissioners were appointed, a subsequent owner is entitled, under sections 979 and 980 of the Greater New York charter, to make proof of damage to the building, which the commissioners must consider and pass upon.</p>

Appeal by the plaintiff, Timothy Keiley, as administrator, etc., from an order of the Supreme Court, made at the Montgomery Trial Term and entered in the office of the clerk of the county of Montgomery on the 17th day of July, 1914, setting-aside the verdict of a jury in plaintiff’s favor for $2,300 and granting defendant’s motion for a new trial.

Appeal by Louise 0. Adenaw, as executrix, etc., and others, from a decree of the Surrogate’s Oourt of the county of New York, entered in the office of said Surrogate’s Oourt on the 23d day of September, 1914, confirming the report of a referee in the proceeding to have the real estate of the decedent sold for the payment of debts, directing said sale and adjudging that the estate of M. Emeline McMillan is indebted to the petitioner Pauline A. Piffard in the sum of $69…

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 9th day of February, 1914, as resettled by an order entered in said clerk’s office on the 27th day of February, 1914. The judgment was entered upon the verdict of a jury rendered by direction of the court after a special verdict had been received.

Appeal by the defendant, Bernheimer & Schwartz 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 26th day of October, 1914, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 28th day of October, 1914, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles J. McCormack, as president, etc., 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 Richmond on the 2d day of March, 1915, granting relator’s motion for an alternative writ of mandamus.

Appeal by the defendants, Lawson Purdy and others, from so much of 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 17th day of February, 1915, as denies costs to them.

Appeal by the plaintiff, Lawrence Hull, as trustee in bankruptcy, 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 25th day of February, 1915, settling the account of the respondent as receiver.

Appeal by the defendants, James H. Cocks and another, 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 Nassau on the 8th day of January, 1915, as resettled by an order entered in said clerk’s office on the 4th day of February, 1915, denying their motion for judgment on the pleadings and overruling their demurrer to the amended complaint.

Appeal by the plaintiff, Alfred Chester Beatty, from a judgment of the Supreme Court in favor of the defendant Guggenheim Exploration Company, entered in the office of the clerk of the county of New York on the 26th day of June, 1913, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Security Mutual 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 18th day of April, 1914, upon a decision of the court after a trial at the New York Trial Term, a jury having been waived.

<p>Appeal from judgment of the Supreme Court, entered in the New York county clerk’s office on the 11th day of October, 1913, upon the verdict of a jury, and also from an order entered on the 21st day of October, 1913, denying a motion for a new trial.</p>

<p>Will — execution—evidence.</p>

<p>Appeal from judgment of the Supreme Court, entered in the New York county clerk’s office on the 4th day of May, 1914, on verdict, and also from an order entered on the 7th day of May, 1914, denying a motion for new trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 8th day of January, 1915, granting a temporary injunction and appointing a receiver.</p>

<p>Motion to dismiss an appeal.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of November, 1914, permitting certain of the defendants to interpose an amended answer.</p>

<p>Appeal from an order of the Supreme Court, entered in the Kings county clerk’s office on the 25th day of March, 1914, and in the New York county clerk’s office on the 13th day of April, 1914, granting a discovery, etc.</p>

<p>Appeal from, so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 24th day of December, 1914, as allows the plaintiff a counsel fee.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 31st day of December, 1914, overruling the appellants’ answers as frivolous.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 3d day of February, 1915, denying the motion of Rose O’Heill Wilson to vacate an order for her examination.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term and entered in the New York county clerk’s office on the 19th day of November, 1914, opening the plaintiff’s default.</p>

<p>Discovery—examination of party before trial— libel — slander.</p>

<p>Appeal from an order granting an injunction pendente lite.</p>

Appeal by certain property owners from three orders of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 16th day of March, 1913, the 34th day of June, 1913, and the 8th day of July, 1913, respectively.

Appeal by the defendant from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on April 30, 1914, in favor of the plaintiff, and from an order, entered in said office on May 25, 1914, denying his motion for a new trial.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 6th day of August, 1913, dismissing the complaint on the merits.

Appeal by the defendants from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 11th day of July, 1914.

<p>Appeal from a determination of the Appellate Term of the Supreme Court, entered on the 35th day of November, 1914, affirming a judgment of the City Court of the City of New York.</p>

<p>Crime — trial — exceptions.</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, 1914, denying a motion to change the place of trial from New York county to Sullivan county.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 3d day of February, 1915, denying a motion to vacate an order for the examination óf defendant before trial in order to frame a complaint.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 11th day of February, 1915, granting defendant’s motion for leave to serve an amended answer.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of January, 1915, granting temporary injunction.</p>

<p>Appeal from so much of an order of the Supreme Court, entered in the New York county clerk’s office on the 35th day of February, 1915, as denied a motion to continue a temporary injunction during the pendency of the action.</p>

<p>Appeal from an order of the Supreme Court, made at Special Term •and entered in the New York county clerk’s office on the 4th day of February, 1915, resettling an order allowing an amended complaint to be served.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 19th day of February 1915, denying a motion to vacate an order for the examination of defendant before trial.</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 plaintiff from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Orange on the 1st day of December, 1914, denying his motion for judgment on the pleadings — the amended complaint and a demurrer thereto.

<p> Attorney and client—admission to bar. </p>

Appeal by the plaintiff from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 33d day of March, 1914, upon the verdict of a jury directed by the court for the sum of $3,783.46 damages and costs, and that the defendant have judgment against the plaintiff upon the issues; also from an order entered in said clerk’s office on the 13th day of March, 1914, denying plaintiff’s motion for a‘ new trial.

<p>Appeal from an order of the Supreme Court, entered in the Brie county clerk’s office on the 16th day of April, 1914.</p> <p>Order affirmed, with costs. All concurred, except Kruse, P. J., who dissented in a memorandum.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 21st day of March, 1914, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial.

Motion to dismiss appeal for failure to file and serve printed papers on appeal as required by rule 41 of the General Rules of Practice.

<p>Appeal from a judgment of the Supreme Court, entered in the office of the clerk of Cayuga county on the 29th day. of October, 1914, dismissing the complaint upon the merits, with costs.</p>

<p>Appeal by the defendants from an order granted by Mr. Justice Clark and entered in the Monroe county clerk’s office on the 24th day of November, 1914, directing defendant Carey, as Special Deputy Comm is. sioner of Excise, to issue a liquor tax certificate to relator Spang for premises 429 Main street, West, in the city of Rochester.</p>

Appeal by the complainant from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Erie on the 38th day of December, 1914, denying the application of the complainant for a peremptory writ of mandamus commanding the defendant to repair the bridge work of the bridge or viaduct carrying Chicago street over its tracks and right of way.

Appeal by plaintiff from an order of the Supreme Court, entered in the Monroe county clerk’s office on the 14th day of February, 1910, denying plaintiff’s motion for an order annulling and canceling a settlement agreement as to alimony between the parties, and for leave to plaintiff to issue execution for the collection of alimony by virtue of a decree entered in this action.