Volume 170 — New York Appellate Division Reports

Appeal by the plaintiff, Albert E. Stebbins, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 21st day of June, 1915, upon a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury. The plaintiff recovered a judgment in a Justice’s Court for $175, and an appeal was thereupon taken to the County Court, the appellant asking for a new trial therein.

Certification of a question of law by the State Workmen’s Compensation Commission to the Appellate Division under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41). The question certified is as follows: May the compensation of Celia Grace Woodcock, Don C.- Woodcock and Margery L. Woodcock, minor children of the deceased, be paid to Marcella J. Woodcock, widow and principal dependent of the deceased ?

<p>Appeal by Holbrook, Cabot & Rollins Corporation from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 15th day of March, 1915, with notice of an intention to bring up for review an award paade on the 21st day of December, 1914.</p> <p>The two awards appealed from granted compensation in favor of the father, mother and sister of the deceased.</p>

Separate appeals by Annie Miller and another, and by J. Robert Rubin, as special guardian of William Bourdet, from part of a decree of the Surrogate’s Court of the county of blew York, entered in the office of said Surrogate’s Court on the 18th day of March, 1915. The part of the decree appealed from adjudges that a bequest and devise of one-fourth of the residuary estate to testatrix’s sister-in-law, Anna V. 0.

<p>Appeal by the defendant, Lehigh Valley Bailroad Company, from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 11th day of February, 1915.</p>

<p>Public service corporations—telephone rates in city of Syracuse — local franchise of New York Telephone Company construed — improvement of telephone equipment and increase in rates of service — when subscriber not entitled to antiquated service at former rate — jurisdiction — when application to Public Service Commission necessary.</p> <p>The original franchise or permit given by the city of Syracuse to the predecessor of the New York Telephone Company to build and operate a telephone system in said city, and establishing a schedule of rates, did not assume to regulate telephone rates beyond the 1st day of February, 1893.</p> <p>The supplementary grant to said telephone company, made by the city in 1897, and providing that telephone rates then in force should not thereafter be increased, did not refer to the schedule of rates in the original franchise, but to the rates obtaining at the time of the supplementary grant, when an increased rate was in force for the use of a metallic return circuit, which, owing to necessary improvements in telephone systems, had largely replaced the one-wire system with a grounded return circuit, the latter having proved to be defective and inadequate for long-distance service.</p> <p>Hence, said telephone company is not required to furnish service on a return metallic circuit to a subscriber for the same price at which it had originally furnished him service upon a grounded line.</p> <p>As the franchise of said telephone company expressly.required it to furnish telephonic service by means of the most modern and improved instruments and equipment, it was required to adopt the improved metallic circuit, although not in use at the time of its original franchise, and having done so, it was not required to furnish a subscriber with a grounded line as formerly used, the right to such line having expired at the end of the six-year period.</p> <p>Moreover, it seems, that public expediency justifies a refusal of said telephone company to furnish a grounded line at the request of a subscriber where such system is obsolete and it appears that a grounded line not only furnishes a defective service to the subscriber, but disrupts and interferes with the improved service rendered to the public in general.</p> <p>In any event, as the Public Service Commission of the Second District is given general supervision and control over the rates and operation of telephone companies within the district, a subscriber seeking equitable relief from the rates established by said company, and filed with the Public Service Commission,, must apply to said Commission, where there is no strictly contractual right which he can enforce in the courts.</p>

Appeal by Michael Haddock, individually and as executor, and by certain of the heirs at law of.

Appeal by the defendants, Isadore Goodman and others, jointly and severally, from a judgment of the Supreme Court, Columbia county, rendered against them on the 20th day of March, 1915, convicting them of the crime of conspiracy to procure the burning of a building.

<p>Workmen’s Compensation Law—manufacturer of cheese — harvesting ice — operation not “ hazardous. ”</p> <p>One employed by a cheese manufacturer solely for the purpose of harvesting ice for use in the business, and who is not required to do any work in connection with the manufacture of cheese, is not engaged in a “hazardous employment” within the meaning of the Workmen’s Compensation Law, and is not entitled to an award for the loss of fingers which were frozen while he was engaged in bis employment.</p>

<p>Appeal by Gross & Herbener and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 23d day of February, 1915.</p>

<p>Sale — Bulk Sales Law construed — remedy not limited to judgment creditors.</p> <p>The remedy for a violation of the Bulk Sales Law (Pars. Prop. Law, § 44) is not limited to judgment creditors, and any creditor of the seller, whether his claim is in judgment or not, may maintain an action under the statute.</p>

<p>Appeal by the defendant, Atlantic Coast Line 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 Kings on the 15th day of October, 1914, upon the verdict of a jury for $6,000, as amended by an order entered in said clerk’s office on the 2d day of November, 1914, and also an appeal from an order entered in said clerk’s office on the 16th day of Octo.ber, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Raffaele Bova, 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 3d day of October, 1913, convicting him of the crime of murder in the second degree, and also from an order entered in said clerk’s office on the Yth day of October, 1913, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Ships and shipping — negligence — injury to deckhand who became entangled in hawser — evidence — duty of captain to rescue person falling overboard.</p> <p>In an action under the Employers’ Liability Act to recover for personal injuries sustained by the plaintiff who was employed by the defendant as a deckhand upon one of its lighters, it appeared that the lighter upon which plaintiff was employed was being moved from a dock, and that as the hawser began paying out, plaintiff became entangled in it and was drawn into the water and up against a pile where he was held in such a manner that the hawser as it was drawn around the pile amputated his foot. The mate called to the captain that the plaintiff had been drawn overboard, and asked that the boat be stopped, but his request was not complied with.</p> <p>Held, that an order setting aside a verdict for the plaintiff on the ground that it was against the weight of the evidence should be affirmed.</p> <p>It was the duty of defendant’s captain when informed that plaintiff was overboard, to use reasonable care not only to prevent further injury, but to rescue the plaintiff if it could be done by the exercise of the care and prudence of a reasonably careful pilot placed in his position at the time.</p>

Appeal by Orville B. Ackerly from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 8th day of October, 1914. The controversy involves the reasonableness of certain expenditures for funeral expenses and the disposition of the proceeds of a life insurance policy collected by the administratrix.

Appeal by the defendants, James B. Shanly and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 28th day of April, 1915, striking out certain parts of their answer as irrelevant and redundant.

<p>Appeal in the first action by the defendants, John 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 Chautauqua on the 24th day of February, 1915, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1915, granting plaintiff an extra allowance of $500.</p> <p>Appeal in the second action by the defendants, John 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 Chautauqua on the 24th day of February, 1915, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1915, granting plaintiff an extra allowance of $400.</p>

Appeal by the plaintiff, Sarah J. Dulso, 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 24th day of June, 1915, upon a dismissal of the complaint upon the merits by direction of the court at the opening of the case. The complaint was dismissed upon the ground that it appeared upon the face thereof that the court had no jurisdiction of the subject of the action.

Appeal by the defendant, Trinity Presbyterian Church of Rochester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Monroe on the 9th day of July, 1915, overruling its demurrer to the complaint and awarding plaintiff final judgment for the relief demanded therein, and also from an order entered in said clerk’s office on the 26th day of July, 1915, amending said judgment; also, an appeal from an order entered…

Appeal by the defendant, The Blue Ribbon Auto and Carriage 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 14th day of April, 1915, denying its motion for a stay of proceedings herein.

<p>Partnership —action for breach of dissolution agreement — evidence — liability for additional salaries paid to employees by partner from special account.</p> <p>In an action to recover damages for the alleged breach of the agreement dissolving a partnership, the issue was raised as to whether a certain sum should be charged against the plaintiff, a retiring partner, by the remaining partners in liquidating his share of the business under the dissolution. It was conceded that if properly chargeable, the sum represented the plaintiff’s proportionate share of additional salaries paid to three employees who were managers of a branch of the firm’s business. The additional salaries were paid by the partner having the subject of salaries in Ms special care, and who was most largely interested in the firm, and were taken from a special account. The sum in question did not appear in the first tM-ee semi-annual statements rendered to the plaintiff by the bookkeeper, pursuant to the dissolution agreement, but did appear in the fourth and final statement. Evidence and provisions of the dissolution agreement examined, and</p> <p>Held, that the liability to the employees for additional salaries was not an individual liability of the partner paymg them, but was a liability of the firm wMch would have appeared upon the books had they been fully and accurately written up at the time of the dissolution agreement;</p> <p>That the surviving partners must be held to have ratified the special account from which such salaries were paid, even though they did not originally expressly authorize it;</p> <p>That the'sum in question for which the smt is brought was the plaintiff’s proportion of a liability of .the partnersMp, and as such was properly charged against him in computing Ms share on dissolution.</p>

Appeal by Peugeot Auto Import Company from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 17th day of December, 1914, and also from the decision of said Commission denying the appellant’s application for a rehearing, and also from the resolution adopted by said Commission on the 26th day of January, 1915.

' Cross-appeals by the claimants, William C. Van Antwerp and others, and by The State of New York, from a judgment, order or determination of the Board of Claims in favor of the claimants, entered in the office of the clerk of said Board on the 17th day of May, 1915. The claimants appeal from said judgment as insufficient.

<p>Workmen’s Compensation Law — carpenter employed by the hour to make repairs by one not engaged in a hazardous business not “ employee.”</p> <p>A carpenter, employed by the hour by a company engaged in manufacturing macaroni, to make repairs and improvements to one of its buildings, and not in any way connected with his employer’s business, is not an “ employee ” engaged in a hazardous business within the meaning of the Workmen’s Compensation Law.</p> <p>It seems, "however, that if an employer engaged in a hazardous business uses his regular employees in doing something which may not be a hazardous employment in. itself, but the work is a part of his general employment and incident to it, injuries to such an employee may be held to have been sustained while engaged in a hazardous employment. Woodward, J., dissented, with opinion.</p>

<p>Eminent domain — condemnation of lands for water supply, city of New York—damage to adjoining owner — award set aside — evidence — expert testimony.</p> <p>Appeal by the city of New York from an award for damages caused by an alleged decrease in value of a farm by reason of the condemnation of other lands for a reservoir used in connection with the city water supply. No lands of the plaintiff were taken, but it was claimed that the condemnation of other lands had made access to his property more difficult and had interfered with the sale of the products of his land, etc. . On all the evidence, held, that the plaintiff had suffered no damage, but, on the contrary, that the value of his property had been increased and that the award should be set aside.</p> <p>The mere opinion of a witness as to value is worthless when the facts testified to by him show that his opinion is not founded on the facts.</p>

Appeal by the defendant, Edgar L. Cramer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 11th day of May, 1915, upon the decision of the court after a trial before the court without a jury. The judgment was for the value of meat sold and delivered to the defendant.

<p>Appeal by the defendant, Cohoes and Lansingburgh Bridge Company, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 20th day of January, 1915, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 21st day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by C. Dorflinger & Sons and another from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 20th day of February, 1915.</p>

<p>Appeal by International Railway Company from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 10th day of March, 1915.</p>

<p>Appeal by Frank M. Williams, as State Engineer and Surveyor, 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 12th day of June, 1915, granting an alternative writ of mandamus directing the reinstatement of the relator to the position of chief clerk in the office of the State Engineer.</p>

Appeal by the defendants, H. Walter Tayntor and others, from that part of 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 20th day of September, 1915, which overrules those portions of a demurrer to the complaint which allege that the complaint does not state facts sufficient to constitute a cause of action.

<p>Workmen’s Compensation Law — death of helper on delivery truck — attempt to drive off boys riding on rear of vehicle — award affirmed — appeal — finding of Commission as to persons dependent.</p> <p>One employed as a “helper” on an automobile truck used to deliver groceries, who was killed by a fall when he jumped off the truck in order to drive off boys who were hanging to the rear of the vehicle and who refused to get off, was engaged, at the time, in the operation of the truck, and his death arose out of and in the course of his employment, so that those dependent upon him are entitled to compensation.</p> <p>A determination of the Workmen’s Compensation Commission as to the persons dependent on the deceased for support is final and not subject to review on appeal, if there is any evidence to support it.</p>

<p>Workmen’s Compensation Law — death of employee of Pennsylvania Railroad Company at New York Terminal — uncoupling local train — when decedent not engaged in interstate commerce — appeal—finding of Commission as to earnings of employee.</p> <p>A person employed by the Pennsylvania Railroad Company at its terminal in New York city to uncouple cars, who was killed by electricity while uncoupling a local Long Island train after it had arrived at said terminal, was not at the time engaged in interstate commerce, and those dependent upon him are entitled to compensation under the State statute if none of the cars ran outside the State or carried any except local passengers. And this even though they carried baggage destined for another State and the Long Island Railroad Company occasionally sold tickets for points without the State.</p> <p>A determination of the Workmen’s Compensation Commission as to the earnings of a claimant is a conclusion of fact which cannot be reviewed on appeal if there be any evidence to support it.</p>

<p>Incompetent persons — counsel fees and costs upon settlement of accounts of committee — appeal.</p> <p>Upon the settlement of the accounts of the committee of the person and estate of an incompetent, now deceased, an amendment of the decree so as to provide for the payment of a certain amount to the committee instead of to the attorney for counsel fees and costs, is immaterial. It is also immaterial whether such allowance is made under the name of costs or under the name of disbursements by the committee.</p> <p>Held, on all the evidence, that an allowance of $1,000 to the attorney of the committee for his services on the accounting is a just charge against the estate.</p> <p>If the defendant should have a further opportunity to be heard as to the value of the attorney’s services, his remedy is to ask the County Court to reopen the order and not by appeal to this court.</p> <p>Woodward, J., dissented, with opinion.</p>

<p>Municipal corporations — highways — apportionment of expense of constructing bridge between counties to replace old structures.</p> <p>When the bridge which formerly extended from the city of Glens Falls, county of Warren, to an island in the Hudson river and the bridge extending from said island to the village of South Glens Fails in the adjoining county of Saratoga, were replaced by a structure extending from said city to said village situated in the said adjoining counties, the city of Glens Falls and the town of Moreau are jointly liable for the expense of constructing the new bridge, and of a bridge temporarily . used, while the county of Warren is liable for not less than one-sixth part of the expense of construction, care, maintenance and repair of the new bridge. The county of Warren is not exempt from sharing in the cost of the southerly portion of said bridge extending from the island in the Hudson river to said village in the adjoining county.</p>

Appeal by Albert Manufacturing Company and another, from a decision and award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 26th day of April, 19Í5.

<p>Workmen’s Compensation Law — injury by sportive act of fellow-servant — injury not arising out of employment — statute construed — foreign decisions.</p> <p>Where an employee, engaged in the manufacture of shirts, etc., having repaired to the toilet, was struck in the eye with scissors which were thrust through a partition from an adjoining toilet by a fellow-servant as a practical joke, the injury, although accidental, cannot be said to have arisen ‘‘out of” the employment within the meaning of the Workmen’s Compensation Law, and the employee is not entitled to an award.</p> <p>It seems, that, as the Workmen’s Compensation Law is modeled upon the English Act, decisions under that act may be considered by our courts.</p> <p>Kellogg and Woodward, JJ., dissented.</p>

Appeal by the defendant, The Central Railroad Company of New Jersey, 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 11th day of December, 1914, upon the verdict of a jury for $6,000, 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>Intoxicating liquors — conviction after expiration of certificate for allowing premises to become disorderly — injunction restraining holder of new certificate from trafficking in liquors on same premises.</p> <p>Under subdivision 8 of section 15 of the Liquor Tax Law, as amended, the conviction of a person who, while the holder of a liquor tax certificate, suffers or permits the certificated premises to become disorderly, attaches the statutory disqualification to the premises, irrespective of whether or not the offender is the holder of the certificate at the time of conviction.</p> <p>Hence where the holder of a liquor tax certificate suffered and permitted the premises to become disorderly, in violation of section 1146 of the Penal Law, and after the expiration of the certificate he was convicted of a misdemeanor for violating said section, the holder of the certificate for the same premises for the following year may be enjoined from trafficking in liquors contrary to the provisions of the statute.</p>

Appeal by the defendant, Lackawanna Steel Company, 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 July, 1915, upon the verdict of a jury for $1,600, 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.

Appeal by Kate Heins, corespondent, 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 3d day of June, 1915, denying her motion to stay the entry of the interlocutory judgment for divorce herein in favor of the plaintiff, Augusta C. Stafford, until after the issues raised by the answer to be interposed by said corespondent shall be disposed of, and for an order striking said case from the…

Appeal by Edward Detmold Lentilhon from part of a decree of the Surrogate’s Court of the county of. New York, entered in the office of said Surrogate’s Court on the 16th day of April, 1915, construing the will of Christian E. Detmold, deceased.

<p>Appeal by the defendant, John G. Wilson, 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 20th day of July, 1915, overruling his demurrer to the complaint.</p>

Appeal by the defendants, Roland Jones Shankland Marsh and others, from so much of 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 6th day of May, 1915, as revokes the probate of a last will and testament and adjudges the same-to be invalid, and also from an order entered in said clerk’s office on the 5th day of May, 1915, denying appellants’ motion for a new trial…

Appeal by the defendants, Howard Carroll and another, as executors, ‘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 July, 1915,'deny-ing their motion for a judgment on the pleadings after an answer had been interposed to the amended complaint.

Appeal by the defendant, Charles S. Devoy, individually and as clerk of the county of Kings, from an 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 Kings on the 1st day of June, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Brooklyn, sixth district, in plaintiff’s favor for the sum of $119.48, being for treble damages under section 67 of the Public…

<p>Landlord and tenant — action by subtenant against tenant and contractor for personal injuries — evidence showing relation of landlord and tenant — motion to withdraw juror — plaintiff fainting at trial.</p> <p>Action by a subtenant against the tenant who had contracted with the owner to repair the premises under an agreement making him liable for all accidents due to the negligence of himself or his subordinates to recover for personal inj uries sustained by being struck by a board or plank which fell upon her from a window of the building while she was crossing the yard.</p> <p>Held, on all the evidence, that the relation of landlord and tenant existed between the plaintiff and defendant, and that a judgment in favor of the former should be affirmed.</p> <p>A denial of the defendant’s motion to withdraw a juror upon the ground that the fainting of the plaintiff during the trial was a pretense to • improperly affect the jury, was properly denied, it appearing that she actually fainted.</p> <p>Latjghlin, J., and Ingraham, P. J., dissented, with opinion.</p>

Appeal by the plaintiff, Fannie Moses, 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 September, 1915, overruling her demurrer to the first defense and the first, second and third -counterclaims contained in the amended answer of the respondents.

Appeal by the plaintiff, Along-The-Hudson 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 lYth day of September, 1914, upon the report of a referee dismissing the complaint on the merits, and awarding to the defendant an affirmative judgment on his counterclaim in an action to foreclose a mechanic’s lien.

Appeal by the plaintiff, Fitch, Cornell & 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 5th day of December, 1913, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, James W. Fitzhenry and others, 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 1st day of June, 1915, directing the issuance of a peremptory writ of mandamus.

Appeal by the defendants, George Naylor, Jr., 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 Westchester on the 12th day of April, 1915, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 23d day of April, 1915, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Silas Decker and another, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Kings on the 24th day of March, 1915, dismissing the complaint upon the decision of the court after a trial at the Kings County Special Term in an action for partition.

<p>Appeal by the plaintiff, Katherine Gr. Sullivan, 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 8th day of July, 1915, dismissing the complaint upon the merits upon the decision of the court after a trial at the Queens County Special Term.</p>

Appeal by the defendants, Charles Purdy and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Westchester on the 15th day of March, 1915, upon the decision of the court after a trial at the Westchester Special Term in an action for partition.

Appeal by Jessie M. Gibson, contestant, from so much of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 27th day of July, 1914, as admits a certain paper to probate as the last will and testament of Annie Coe MacDowell, deceased.

Appeal by the plaintiff, Mary Cloonan, as administratrix, 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 24th day of December, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the petitioner, James Easton Fraser, from a decree of the Surrogate’s Court of Orange county, entered in the office of said Surrogate’s Court on the 18th day of June, 1915.

Appeal by the plaintiff, Terence McKegney, 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 13th day of November, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, Emanuel J. Myers 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 5th day of October, 1915, denying their motion for an extra allowance.

Appeal by the defendants, The City of New York and another, 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 5th day of August, 1914, granting a permanent injunction upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the plaintiff, Thomas F. Devine, 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 14th day of April, 1915, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.</p>

<p>Incompetent persons—intemperate females— chapter 436, Laws of 1903, construed — intoxication of wife residing with husband.</p> <p>Chapter 436 of the Laws of 1903, authorizing the commitment of a female who is a prostitute or who is of intemperate habits to a reformatory, does not relate to intemperate females residing in their own homes, but only to those found in houses of ill-fame or associating with prostitutes or dissolute persons, or who willfully disobey their parents or guardians so as to be in danger of becoming morally depraved, or who have been convicted of petit larceny.</p> <p>Hence, a magistrate has no power to commit a woman under said statute where her husband with whom she lives merely charges her with intoxication and intemperate habits, there being no proof of intoxication in a public place, conferring jurisdiction under sections 88 and 88a of the Inferior Criminal Courts Act of the City of New York.</p> <p>It seems, that such female, if incompetent to manage her affairs by reason of habitual drunkenness, may be dealt with under section 3830 of the Code of Civil Procedure, or under section 346 of the State Charities Law relating to inebriate females.</p>

Appeal by the plaintiff, Alexander J. Munro, 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 April, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the defendant, Rochester and Pittsburgh Coal and Iron 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 27th day of January, 1915, 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 January, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Mining — negligence — action under Pennsylvania statute for death, of miner — contact with electric wire — evidence justifying recovery.</p> <p>In an action by a widow under a Pennsylvania statute for the death of her husband by an electric shock while in the employ of the defendant in a bituminous coal mine in said State, it appeared that the deceased met his death by coming in contact with an electric wire suspended from the roof of the mine while pushing a car along the track; that the roof of the mine was only a few inches over five feet above the track; that the wire had sagged more than six inches, and that the attention of the mine foreman and of the superintendent had been called to the dangerous condition of the wire, and they had failed to remedy the same.</p> <p>Held, that under the evidence and the statutes and decisions of the State of Pennsylvania, a judgment for the plaintiff should be affirmed;</p> <p>That it was the duty of the superintendent, when knowledge of the defect in the wire was given him, to call upon the mine foreman to remedy it, and in the event of his failure to do so at once, the duty devolved on the superintendent.</p>

<p>Appeal by the defendant, Coney Island and Brooklyn Bail-road Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 31st day of March, 1915, setting aside the verdict of a jury in defendant’s favor and granting plaintiff’s motion for a new trial made upon the minutes.</p>

Cross-appeals by the plaintiff, Urania U. Glaser, and the defendant, John X. Burns, 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 24th day of May, 1915.

Appeal by the plaintiff, Manhattan and Jamaica Railway 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 Queens on the 17th day of February, 1915, denying its motion for judgment on the pleadings as against the respondent after a demurrer had been interposed to the complaint.

<p>Appeal by the relator, Lathrop Brown, 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 Ith day of September, 1915, denying his petition for a writ of mandamus.</p>

<p>Husband and wife — imprisonment for failure to pay alimony — second imprisonment.</p> <p>The rule that one who has been imprisoned for a failure to pay alimony cannot again be imprisoned upon like process in the same action applies only where such person has served the full term of imprisonment prescribed by section 111 of the Code of Civil Procedure.</p> <p>Hence, where a husband having been arrested for failure to pay alimony, paid the same and was discharged without having served any term of imprisonment, he is not immune from a second arrest for contempt in failing to pay alimony which subsequently accrued.</p>

<p>Cebtioeaei issued out of the Supreme Court and attested on the 19th day of July, 1915, directed to the hoard of supervisors of Niagara county, commanding them to certify and return to the office of the clerk of the county of Niagara all and singular their proceedings had in disapproving the bills of the relators presented to said board for services rendered as private detectives upon the employment of the district attorney of Niagara county.</p>

Appeal by the defendant, James Davico, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 11th day of March, 1915, convicting him of the crime of selling cocaine, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial.

<p>Appeal by the plaintiff, Charles H. Sutherland, from an order of the Supreme Court, made at the Suffolk Trial Term and entered in the office of the clerk of the county of Suffolk on the 20th day of November, 1914, setting aside the verdict of a jury, and also from an order of said court, entered in said office on the 25th day of March, 1915, denying the plaintiff’s motion for an order vacating the previous order.</p>

<p>Bills and notes—action on note given as payment under construction contract — defenses — parol agreement of payee to release maker upon failure to complete contract — rescission of contract—restoration of benefits received—practice — striking out insufficient defenses.</p> <p>It is no defense to an action on promissory notes given by the maker in part payment for machinery which was to be constructed and installed in the maker’s plant by the payee to allege a parol agreement whereby the payee was to release the maker and cancel the notes provided the contract for the installment of the machinery was not completed when the notes fell due. Such defense seeks to vary the written obligation of the notes by proof of a parol condition subsequent and is properly stricken out by the trial court.</p> <p>Even if evidence of such parol agreement for the cancellation of the notes were admissible it would amount to a rescission of the contract for the installment of the machinery by the maker of the notes and would obligate him to show a return of the machinery and benefits received under the contract, or to prove an offer of such restoration, in order to defeat a recovery on the notes.</p> <p>The trial court has power to strike out such insufficient defenses.</p>

Appeal by the defendant, Archibald Palmer, as trustee in bankruptcy, 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 9th day of March, 1915, upon the decision of the court rendered after a trial at the Kings County Special Term

Cross-appeals by the relator, Lathrop Brown, and the intervenor, Frederick 0. Hicks, from a final order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of November, 1915. .

Cross-appeals by the relator, Lathrop Brown, and the intervenor, Frederick C. Hicks, from a final order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 17th day of November, 1915.

<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, borough of Brooklyn, entered in the office of said court on the 3d day of June, 1915.</p>

<p>Surrogate of Queens county — right to compensation for drawing jurors under section 36 of Judiciary Law — public officers—extra compensation for additional services.</p> <p>The surrogate of the county of Queens is not entitled to compensation for the drawing of jurors under section 36 of the Judiciary Law providing for compensation “to each judge, including each justice of the Supreme Court, for the services performed by him in connection with the drawing of jurors,” notwithstanding the provisions of the Code of Civil Procedure for the drawing of jurors for service in the Surrogate’s Court.</p> <p>Additional services required of an officer in the discharge of his office do not afford to him the right of additional compensation, and there arises no implication that there was legislative intent to requite for such services. Right to such additional compensation must appear in the plain expression of the statute.</p>

Appeal by the defendant, The Knickerbocker Ice Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Dutchess on the 16th day of April, 1915, upon the verdict of a jury for $2,000, 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>Appeal by the defendants, The City of New York 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 15th day of March, 1915, upon the decision of the court after a trial at the New York Special Term, with notice of an intention to bring up for review certain intermediate orders in the action.</p> <p>The action was brought to establish a lien on a certain sum held by the chamberlain of the city of New York as a balance due on a contract with the city.</p>

<p>Guaranty — pleadings — allegation that guaranty ran to partnership — defenses — evidence that guaranty ran to corporation—erroneous exclusion of evidence — amendment at trial.</p> <p>Where a plaintiff, suing as assignee of a guaranty executed by the defendants to secure the payment of promissory notes also assigned, alleges that the original payee of the notes to whom the guaranty ran was a copartnership, which allegation the defendant denies, claiming that the guaranty ran to a corporation bearing the same name as the partnership, it is error to exclude evidence offered by the defendants to show that as guarantors they had had no business relations with the copartnership; that they had never heard of it until the trial, and that their only business relations had been with the corporation which was payee of the notes which they had guaranteed.</p> <p>It is sufficient for the defendants to deny the allegations of the complaint with respect to the firm being the payee of the notes and the party to whom the guaranty ran; and it would have been improper to have plead that the guaranty was given to the corporation, or any defense existing against the corporation itself, for such allegations would have been wholly irrelevant and in fact hypothetical pleading, which is unauthorized.</p> <p>It seems, moreover, that if the plaintiff had been permitted to proceed with the action on the theory that the guaranty ran to the corporation contrary to the allegations oí the complaint, the defendants would have had an absolute right to amend by pleading a defense as against the corporation.</p>

Appeal by the defendant, The Board of Education of the City 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 26th day of October, 1915, directing the issuance of a writ of mandamus commanding the reinstatement of the applicant as a fifth grade accountant in the bureau of supplies as of June 1,1915.

Appeal by the petitioner, William W. Farley, as State Commissioner of Excise, 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 9th day of September, 1915, denying his motion to revoke a liquor tax certificate.

Appeal by the plaintiff, Helen Gilpin, as administratrix, 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 6th day of April, 1915, 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 7th day of April, 1915, dismissing the complaint.

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 New York on the 25th day of May, 1915, upon the verdict of a jury rendered by direction of the court, both sideshaving moved for-the direction of a verdict at the close of the case, and also an appeal from the order directing the verdict.

Appeal by the plaintiff, Blanche L. Lightfoot, 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 September, 1915, granting the motion of the defendants herein, except the defendant Rosemary Kane, for judgment on the pleadings dismissing the complaint.

Appeal by the plaintiff, German-American Button Company, from two judgments of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 4th day of May, 1915, dismissing the complaint on the merits upon decisions of the court after trials at the New York Special Term.

Appeal by the Public Service Commission for the First District 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 Kings on the 18th day of June, 1915.

<p>Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1915, directed to the Public Service Commission of the State of Néw York for the First District and Edward E. McCall and others, as Commissioners, 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 ordering the relator to make a switch connection with a lateral line of railroad or private side track at Jamaica, Long Island.</p> <p>Prior to the year 1897 the petitioners conducted a wholesale and retail grocery, grain and produce business at Jamaica on the southerly side of the railroad of the relator, with a siding connection from the relator’s railroad to their two warehouses. In the year 1896 they contemplated constructing a larger plant. The principal business between them and their customers required the use of the grade crossing of the relator’s tracks on Eockaway road. This was objectionable to. the relator, and on its coming to the attention of the relator that the petitioners contemplated building in the same vicinity, a representative of the relator suggested to the petitioners that they transfer part of their business to the northerly side of the tracks, and represented that the relator contemplated changing the location of its permanent freight yard to that side. The petitioners evidently acquiesced in this suggestion, for they acquired the land bounding northerly on Fulton street, now Jamaica avenue, seventy-eight feet, westerly on Tyndall street, now Brantford road, from Fulton street to Archer place, and southerly on Archer place from eighty-five to ninety feet, and also a strip two. feet wide on the westerly side of Tyndall street extending from Fulton street to Archer place, and bounding on the west by lands of the relator, where it was to and did construct and operate its permanent freight yard for a time, and also land extending from Archer place to the premises of the relator on the south and bounded on the west by lands of the relator, and extending easterly therefrom one hundred and sixty feet. At that time Archer place was a mere cul-de-sac extending from Tyndall street easterly to a point about one hundred and fifty feet west of Eockaway road. It thus appears that Tyndall street and Archer place extended in the form of the letter L from Fulton street southerly and easterly, and the petitioners owned land abutting on each side of both and extending to lands owned by the relator on the west and south. There is no evidence with respect to the ownership of the fee of Archer place at that time.</p> <p>In the year 1897, after the petitioners acquired this land, the relator, pursuant to a contract in writing between it and the petitioners, constructed a siding from its railroad diagonally across the junction of Tyndall street and Archer place onto the petitioners’ land, north of Archer place and east of Tyndall street. This was intended to serve a warehouse and grain elevator which the petitioners intended to erect and did erect on that plot in the year 1899. It appears that the grain elevator was constructed at a large expense especially with a view to its usé in connection with the siding, and was used in connection therewith, and has had connection with and service from the relator’s railroad ever since, although the point of connection of the siding with the railroad tracks has been changed several times. After the siding was constructed, a property owner on Archer place instituted a mandamus proceeding to compel the relator to remove it, on the ground that it constituted an illegal structure. The relator filed an answer in that proceeding, reciting, in substance, the facts already stated, and containing an assertion by the relator with respect to its purpose and use, as follows: “ Said siding was put in and is maintained and operated solely for the convenience of said Adikes [the petitioners herein] and the public who transact business with them so as to increase the facilities for the receipt and delivery of freight at the storehouse of said Adikes in the Village of Jamaica.” The application for the writ of madamus was denied.</p> <p>In the year 1911 an agreement was made between the city of New York and the relator with respect to the elimination of grade crossings, which contemplated the elevation of the tracks and the passing of the streets under them. . This would require a steep grade on the siding to connect with the railroad tracks, or the elevation of the siding; and the relator determined to abandon the siding and all other sidings in the station zone of the improvement at Jamaica on the northerly side of the railroad. It is stated in the brief of the relator that it served a notice on the petitioners in April, 1918, of its intention to remove the siding pursuant to a clause in the agreement under which it was constructed giving the relator the right to terminate the service on ten days’ notice. The petitioners thereupon brought a suit in equity to enjoin the relator from removing the siding, and they succeeded at Special Term, but the judgment was reversed by the Appellate Division. (Adikes v. Long Island R. R. Co., 165 App. Div. 221.) The decision of the Appellate Division, as shown by the opinion, was placed upon the ground that as there was no statute regulating the rights of the railroad company and abutting property owners with respect to sidings when the siding was constructed, their rights depended upon their agreement, and that when section.27 of the Public Service Corn-missions Law (Laws of 1907, chap. 429; now Consol. Laws, chap. 48; Laws of 1910, chap. 480) was enacted on Jane 6, 1907, to take effect on July 1, 1907, it did not become applicable to a siding constructed under an agreement by which for a consideration the railroad company was given the right to terminate the service, as was provided in the agreement, with respect to this siding then before the court. The court, in reversing the decision of the Special Term, suggested that an application be made to the Public Service Commission. Thereupon the petitioners applied to the Public Service Commission, and in their petition set forth the facts with respect to and the circumstances under which the siding was originally constructed and their buildings were erected, the amount of freight business conducted over the siding, the threat of the railroad company to terminate the service, the action brought by them for injunctive relief, and prayed the Commission to determine that the circumstances and business were sufficient to warrant the maintenance of the siding, and that an order be made requiring the railroad company to construct and maintain the siding. After taking evidence and hearing the parties, the Commission" made an order so far as material to the questions under review, as follows:</p> <p>“ (1) That said The Long Island Railroad Company be and it hereby is directed and required to construct and establish a switch connection between its railroad at Jamaica, in the Borough of Queens, City of New York, and a lateral line -of railroad or private side track on the property of the petitioners, situated on the east side of Tyndall Street between Fulton Street and Archer Place in said Borough of Queens; such switch connection to be constructed and established substantially as shown in red on drawing entitled ' Sketch of Proposed Elevated Siding for J. & T. Adikes, Jamaica, L. I. Sketch 1"—100 feet January 15, 1915,’ which drawing was received in evidence as Exhibit No. 2 on the hearing had in this matter.</p> <p>“ (2) That said company construct and establish such switch connection within six months from and after the service on said company of a certified copy of this order.</p> <p>“ (3) That in so far as the construction and establishment of such switch connection necessitate an encroachment upon or use of the public highway, said company make and prosecute with due diligence application to the proper city authority for such permit or consent as may be necessary for the construction and establishment thereof.</p> <p>“ (4) That this Commission hereby specifies and directs that an amount representing the entire cost of the construction and establishment of so much of said .switch connection as shall be located upon the petitioners’ own property and one-half of the cost of so much of said switch connection as shall be located in, upon or over any public street or streets as the reasonable compensation for the construction, establishment and maintenance of said switch connection.</p> <p>“ (5) That said company shall maintain and operate the side track or switch connection now established, maintained and operated between its line of railroad and the property of the petitioners situated on the east side of Tyndall Street between Fulton Street and Archer Place at Jamaica, in the Borough of Queens, City of New York, until the switch connection herein provided for shall have been constructed and put in operation.”</p> <p>The plan pursuant to which the siding was directed to be reconstructed provides for its elevation, on the lands, of the relator and across the junction of Tyndall street and Archer place, and on the lands of the petitioners, to the level of the tracks of the relator, as elevated pursuant to the plan of improvement provided by the contract between the city and the relator.</p>

Appeal by the defendant, Trustees of the Presbytery 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 18th day of March, 1915, upon the verdict of a jury rendered by direction of the court with respect to the plaintiff’s right to the possession of the premises in suit and rendered by the jury without such direction with respect to the damages, and also from an order entered in said…

Separate appeals by the plaintiff, James W. Adams, and by the defendant, Elizabeth S. Turner, from parts of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 10th day of February, .1915, upon the' decision of the court after a trial at the New York Special Term.

<p>Guardian and ward — suit against guardian for accounting — release of claims construed — limitation of action against trustee.</p> <p>Action against a guardian brought by his ward to compel him to account for a legacy which he had received as guardian and for which he had failed to account. The defendant, father of the plaintiff, who had been associated with him and another son in business, set up as a defense a general release of all claims against him executed by the sons. Release construed, and held, to refer only to claims relating to business transactions between the parties and not to release the claim against the father as guardian.</p> <p>The general rule is that where a release contains a recital of a particular claim, obligation or controversy, and there is nothing on the face of the instrument other than general words of release to show that anything more than the matters particularly specified was intended to be discharged, the general words of- release are deemed to be limited thereby.</p> <p>As the defendant was the guardian of an express trust, the Statute of Limitations did not begin to run against the claim of the ward until the guardian had accounted or repudiated the trust.</p>

Appeal by the plaintiff, Bertram Mitchell, 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 19th day of March, 1915, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendants, Harper’s Weekly Corporation 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 1st day of May, 1915, overruling their demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings.</p>

<p>Decedent’s estate — action to recover legacy — release of'legatee from liability for moneys loaned — proof justifying recovery.</p> <p>Action against an executor to recover a legacy left by the testator to his brother by a will which also released the legatee from liability for all loans made to him by the testator up to the amount of' $25,000, the defense being that the total indebtedness of the legatee exceeded said sum.</p> <p>Evidence examined, and held, that the total indebtedness pf the legatee to the testator was less that $25,000 and that the plaintiff was entitled to recover.</p>

Appeal by the defendants, Joseph Haight, individually and as supervisor, etc., 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 Westchester on the 28th day of December, 1914, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Separate appeals by the petitioner, Lathrop Brown, and by the intervenor, Frederick 0. Hicks, from parts of a final order of the .Supreme Court, made at the Kings County Special Term and dated September 30, 1915.</p>

<p>Contract—advertisement in program of race—abandonment of race — abrogation of contract.</p> <p>Where a defendant agreed to pay for an advertisement of its business in a “ souvenir and program” of a certain international yacht race when the program should be published, the holding of the race was of the essence of the contract, and where the race was given up owing to the European war the defendant is not liable for the contract price although the plaintiff actually printed a program containing the advertisement.</p>

<p>Mechanic’s lien — lien on cost of completion by owner — evidence — cost of completion — architect’s certificate — counterclaim — liquidated damages — sums paid to architect—defective notice of lien — “ materialman ” defined.</p> <p>Where an owner completes a building contract upon the abandonment of the work by the contractor, and materialmen and others asserting liens upon the difference between the cost of completion and the amount of the contract price unpaid establish the cost of completion solely by the certificates of the owner’s architect, the lienors cannot, on appeal, impeach the certificate as to the payment of laborers’ wages by the owner.</p> <p>Where an owner, who has completed a building after a default of the contractor, is charged with mechanic’s liens on the cost of completion, he cannot assert a counterclaim for liquidated damages for the delay.</p> <p>Nor can charges for the services of the architect be considered part of the contract which the owner was completing on thq contractor’s account.</p> <p>A notice of mechanic’s lien is defective in failing to state the agreed price and values of materials furnished for the real property which is subject to the lien, where it groups in the notice materials furnished under several contracts for the improvement of separate pieces of real estate which were improved as independent operations.</p> <p>One who furnishes a contractor with materials called for by the plans and specifications and by whom working drawings were submitted for approval, but who did hot install the material nor perform any labor thereon after delivery, is a materialman.</p>

Appeal by the defendant, Mercy Amanda Quinn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 27th day of February, 1915, upon the decision of the court after a trial at the Suffolk Special Term.

Appeal by the defendant, The Press 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 Kings on the 23d day of February, 1915, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 20th day of February, 1915, denying defendant’s motion for a new trial made upon the minutes. Action for libel.

Appeal by the plaintiff, Nathan Sachs, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of November, 1914, reversing a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, First District, in plaintiff’s favor for the sum of $187.

Appeal by the plaintiff, Simon T. Shea, as overseer of the poor, from a judgment of the County Court of Westchester county in favor of the defendants, entered in the office of the clerk of said county on the 13th day of January, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the “plaintiff, Matt Nauyalis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 29th day of January, 1915, upon a dismissal of the complaint on the merits by direction of the court at the close of the case.

<p>Appeal by the defendant, Edward Zimmerli, 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 21st day of June, 1915, 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 28th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, New York Herald 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 9th day of February, 1915, upon the decision of the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 6th day of February, 1915, ordering that forty-nine dollars paid by plaintiff for a transcript of the stenographer’s minutes furnished…

Appeal by the defendant, Staten Island Rapid Transit 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 New York on the 27th day of May, 1915, upon the verdict of a jury for §2,000, and also from an order entered in said clerk’s office on the 2d day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant in each action, The Town of North Hempstead, 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 31st day of July, 1915, granting the motion of the plaintiff in each case to compel defendant to accept a further amended complaint herein.</p>

<p>Appeal by the defendant, Brasch & Rothenstein, 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 22d day of October, 1915, upon the decision of the court, rendered after a trial at the New York Special Term, overruling its demurrer to the complaint.</p>

Appeal by the defendant, The Security Bank of New York, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 14th day of June, 1915, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff, rendered after a trial before the court without a juiy, with notice of an intention to bring up for review the original…

<p>Waters and watercourses—riparian rights — obstruction of access to waters of Great South bay — injunction —special damage.</p> <p>The owner of lands abutting on a public street in the village of West Say-ville, which street leads to the waters of Great South bay, is entitled to a right of ingress and egress from and to the waters of the bay where they meet the highway at high-water mark. Hence, as a riparian owner she is entitled to an injunction requiring an oyster company, which has acquired the ownership of lands under said waters, to remove structures erected upon piles which obstruct the exercise of said riparian rights.</p> <p>Such riparian owner, who has also title to the middle of said street and extending to high-water mark, suffers special injury different from that of the general public which entitles her to an injunction.</p> <p>The requirement to show special injury in such case does not call for the proof of such exact amounts as might be necessary to a recovery in an action for damages.</p> <p>A mandatory injunction to compel the removal of such obstruction will issue even though the defendant has invested large capital in its enterprise and will suffer loss.</p> <p>Appeal by the defendant, the Blue Points Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 25th day of March, 1915, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment awarded plaintiff a mandatory injunction commanding defendant to remove its oyster plant from the foot of a highway known as West street, at West Sayville, in the town of Islip, L. I.</p>

<p>Beal property — suit for cancellation of deed — delivery upon condition that deed is not to be recorded until happening of future event — death of grantee before fulfillment of condition — evidence.</p> <p>Suit brought by a grantor to obtain a decree canceling a deed whereby he conveyed lands to his son. Although the grantor had executed the conveyance he contended that he had never delivered the same to the grantee but had merely given it to the grantee’s wife for safe-keeping until such time as he himself should deliver it to his son. It was contended by the defendants, however, that the instrument was placed in the custody of the grantee’s wife for delivery to him, the only condition imposed by the grantor being that it should not be recorded until the final determination of an action relating to the lands. On all the evidence, held, that the deed was delivered for delivery to the grantee, the record to be postponed until the settlement of the action, and that having been done, the title passed although the grantee had died in the meantime.</p> <p>Where a condition upon which delivery is made is performed the deed takes effect from the time of first delivery even though the grantee dies before the condition is performed.</p>

Appeal by the defendant, Brown Brothers Company, from a judgment 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 verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of December, 1914, denying defendant’s motion for anew trial made upon the minutes.

Appeal by the petitioners, William H. Wood and another, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 5th day of April, 1915.

<p>Motion to confirm referee’s report.</p>

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

Application on the report of official referee upon charges against the respondent, an attorney and counselor at law, for professional misconduct.

<p>Attorney at law censured—writing letter reflecting upon judicial action of justice.</p> <p>Attorney at law severely censured for writing a letter to a justice of the Municipal Court, in relation to an action against him, personally, in said court, impugning the motives of the justice, charging him with improper judicial action and containing reflections upon other justices of the court.</p>

Appeal by the defendants, Louise J. Denny 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 New York on the 9th day of July, 1915, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants, Louis Koch 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 18th day of November, 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 19th day of November, 1914, denying appellants’ motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The following is the statement of facts agreed to by the parties. “First. That heretofore and on or about the 31st day of July, 1913, the plaintiffs were duly appointed receivers of all the property, rights and franchises of Blum Brothers, Incorporated, a corporation organized and existing in the State of Pennsylvania, to wit, in the City of Philadelphia, in an action in the Court of Common Pleas in the County of Philadelphia, State of Pennsylvania, in equity wherein Gabriel Blum, Ealph Blum, Emil Loeb, Ferdinand L. Loeb, A. B. Loveman, M. V. Joseph and Emil Loeb, copartners, trading as Loveman, Joseph & Loeb, were plaintiffs and the said Blum Brothers, Incorporated, was defendant. The bill, answer and decree in the said action are annexed hereto, marked Exhibit A, Exhibit B and Exhibit C, respectively. That at the time of the said appointment of the plaintiffs as receivers of Blum Brothers, Incorporated, as aforesaid, the said Blum Brothers, Incorporated, was insolvent and unable to pay its debts as they matured. That thereafter the plaintiffs duly qualified and have thereafter been acting as such receivers.</p> <p>“ Second. That by virtue of said order of appointment dated the 31st day of July, 1913, the plaintiffs were duly authorized to conduct the business of Blum Brothers, Incorporated, to collect their outstanding accounts, claims and choses in action, and to bring any action or actions, proceeding or proceedings for the collection or reduction to possession thereof.</p> <p>“ Third. That the defendant is a national bank, existing and doing business under a charter of the United States and having its principal office and place of business in the City of New York.</p> <p>“Fourth. That from some time in the year 1903 to and including the 31st day of July, 1913, the said Blum Brothers, Incorporated, of which the plaintiffs are receivers, was a depositor of the defendant. That the annexed statement marked Exhibit D annexed hereto, is a true and correct statement of all the credits and deposits in the account of Blum Brothers, Incorporated, with the defendant between the dates of February 1st, 1913, and July 31st, 1913. That, as shown by the said statement hereto annexed and marked Exhibit D, there was on the 31st day of July, 1913, on deposit with the defendant and to the credit of Blum. Brothers, Incorporated, the sum of $3,571.51.</p> <p>“ Fifth. That on or about the 24th day of February, 1913, the said Blum Brothers, Incorporated, made to its own order and duly indorsed and delivered to the defendant its certain promissory note for $35,000, dated February 24th, 1913, and payable six months after date, to wit, on August 24th, 1913.</p> <p>‘ ‘ Sixth. That the defendant, at the request of the said Blum Brothers, Incorporated, discounted the said note and placed the proceeds thereof to the credit of the account of the said Blum Brothers, Incorporated, and that the item of Exhibit D dated February 24th, 1913, reading as follows: ‘Feb. 24, Discount $34,115.28,’ represents the amount so placed to the credit of Blum Brothers, Incorporated.</p> <p>“ Seventh. That on or about January 31st, 1913, the said Blum Brothers, Incorporated, for the purpose of obtaining credit, issued a statement as to its financial condition, in which it appeared that its assets exceeded liabilities by $1,162,791.36. That in discounting the said note, as aforesaid, the defendant relied upon the said statement of January 31st, 1913, and believed that it was a true, correct and complete statement of the financial condition of the said Blum Brothers, Incorporated, on the date when it was issued. That the said statement was not, in fact, a true, complete and correct statement of the financial condition of the said Blum Brothers, Incorporated, on the day it was issued, but was false, misleading and incomplete at the time when it was made, in that the statement of liabilities contained therein omitted liabilities in excess of $1,000,000, and in that on the date when it was issued the liabilities of the said Blum Brothers, Incorporated, exceeded its assets; and that the said statement was known to the said Blum Brothers, Incorporated, to be thus false, incomplete and incorrect.</p> <p>“Eighth. That on July 31st, 1913, the defendant for the first time learned that the said financial statement was false, incorrect and incomplete, and that it thereupon cancelled the said balance of $3,571.51 appearing on its books to the credit of the said Blum Brothers, Incorporated, on that day, and attempted to apply the same to the partial payment of the said note, payment of that amount being credited upon it. That it did not at any time give notice to the plaintiffs of its intention to rescind and cancel the credit given by the aforesaid note, dated February 24th, on the ground of the misrepresentations of the plaintiff’s assignors.</p> <p>“Ninth. That the defendant had due notice of the appointment of the plaintiffs as Receivers of Blum Brothers, Incorporated, and that the plaintiffs, after their appointment as such Receivers, and on or about August 26th, 1914, demanded payment of the said sum of $3,571.51, which was the balance on deposit with the defendant to the credit of Blum Brothers, on July 31st, 1913, as aforesaid,- and that the defendant refused and still refuses to pay the same, and no part thereof has been paid to the plaintiffs.</p> <p>“Tenth. That no part of the said note for $35,000 has been paid to the defendant, except as aforesaid.</p> <p>“ The plaintiffs claim that upon the foregoing facts, the defendant is indebted to them in the sum of $3,571.51, and that they are entitled to recover that amount from the defendant. The defendant claims that it was entitled to rescind the loan which it made by discounting the said note and to apply the said balance of $3,571.51 in part payment of the said note, and that it is entitled to offset its claim on the said note against the claim of the plaintiffs for the said sum of $3,571.51.”</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 Bronx on the 15th day of May, 1915, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 9th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal, as stated in the notice of appeal, by the People of the State 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 county of Kings on the 14th day of May, 1915, as resettled by an order entered in said clerk’s office on the 9th day of June, 1915, denying relator’s application for a writ of absolute prohibition.

Appeal by the plaintiff, Isabella R. Doerfler, 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 August, 1915, granting respondent’s motion for a stay of proceedings.

<p>Appeal by the defendants, New York and Queens County Railway Company and others, 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 20th day of April, 1915, granting petitioner’s application for a writ of mandamus; also from the writ of mandamus entered in said clerk’s office on the 21st day of April, 1915, and also from an order entered in said clerk’s office on the 13th day of May, 1915, denying defendant’s motion to resettle the order and the writ.</p>

Appeal by the plaintiff, Leo S. Stamm, 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 11th day of May, 1915, upon a dismissal of the complaint by direction of the court at the opening.

Appeal by the defendants, John L. Haynes 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 Putnam on the 11th day of March, 1915, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 20th day of March, 1915, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Elmer Gr. Booth, 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 Albany on the 28th day of September, 1915, enjoining him from operating a motor jitney bus carrying passengers for hire in the city of Rochester, unless and until he shall procure the assent of the local authorities of said city, and a certificate of public convenience and necessity from the Public Service…

<p>Appeal by the plaintiff, George Bagdon, 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 28th day of September, 1915, as amended by an order entered in said clerk’s office on the 11th day of October, 1915.</p> <p>The order set.aside and vacated the service of the summons and complaint herein. Service was made upon the agent who had been duly designated by defendant for that purpose, pursuant to section 16 of the General Corporation Law (Consol. Laws, chap. 23; Laws of 1909, chap. 28). It appeared, however, that the complaint was for an alleged breach of contract ' between the parties for the employment of the plaintiff for life. The breach, if any, occurred in defendant’s mines in the State of Pennsylvania, and the only business done by defendant in the State of New York was the solicitation and receipt of orders for the sale of coal, none of its mining operations being conducted in this State. Defendant contended that although it had a designated agent in this State, its consent to be sued here could not be implied, except with respect to such business as dt transacted in this State.</p>

Appeal by the defendant, Eugene L. Parodi, as trustee in bankruptcy, 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 October, 1915, granting plaintiff’s motion for judgment on the pleadings after appellant had served an answer to-the complaint.

Appeal by the defendant, Alfred H. Lewis, 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 10.th day of June, 1915, permitting an. inspection of the books and papers of the firm of Lewis & Frear and of the copartnership of Lewis & G-endar.

Appeal by the defendant, Lena Di Stefano, from a judgment of that part of the Court of Special Sessions of the City of New York known as the Children’s Court for the County of Kings, rendered against her on the 8th day of January, 1915, adjudging her in danger of becoming morally depraved.

<p>Appeal by the plaintiff, Thomas O’Neil, from a judgment of. the County Court of Kings county, entered in the office of the clerk of said county on the 20th day of April, 1915, dismissing the complaint 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 April, 1915, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Henry W, Jessup, 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 11th day of June, 1915, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Edward F. De Witt, 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 November, 1915, denying his motion for'leave to amend the summons and complaint herein by alleging in full the names of all the partners comprising the defendant firm.

Appeal by Gottlieb Maier and George Pfaehler, Jr., as executors and trustees, 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 5th day of October, 1915, confirming a prior order fixing and assessing the taxes upon the transfers of property in this estate.

Appeal by the defendants, Mary Baumryter 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 May, 1915, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Elfrieda M. Ziegenhain, 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 28th day of April, 1915, upon the decision of the court after a trial at the Bronx Special Term.

Appeal by Thomas C. Reid and another, as trustees, from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 26th day of July, 1915, judicially settling the intermediate account of said trustees. An appeal is taken from said decree in so far as it disallows an investment made by said trustees, and charges them with the amount of such investment as so much cash in hand.

<p>Appeal by the defendant, John 0. Cosgrove, from an interlocutory 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 6th day of July, 1915, upon the decision of the court after a trial at the Hew York Special Term.</p>

<p>Appeal by the defendant, Press 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 Hew York on the 19th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Gas and electricity — refusal of electric company to furnish current — certificate as to sufficiency of customer’s electric equipment — Transportation Corporations Law, section 62, construed—certificate of board of fire underwriters.</p> <p>Although section 62 of the Transportation Corporations Law imposes a penalty upon electric lighting companies which refuse to furnish electricity to consumers as required by the statute, such duty is not unqualified, and an electric power company may make reasonable rules and regulations as to the sufficiency and safety of the equipment of the person applying for electric power.</p> <p>Thus, such company is justified in requiring an applicant for electric power in the city of New York to show the sufficiency and safety of the electric equipment in his building by obtaining a certificate to that effect from the board of fire underwriters, and may lawfully refuse to supply or continue electric current until such certificate is obtained without becoming subject to the statutory penalty.</p> <p>It is not unreasonable for an electric company to insist upon the production of a certificate of the board of fire underwriters, although the applicant for electricity is required to pay to the board a small fee for the certificate, for, it seems, that the electric company itself could charge him with the expense of examining his equipment by its own experts and hence may insist that the examination be made by the fire underwriters, although a fee is charged.</p>

<p>Appeal by Enoch G-. Megrue, as trustee, from an order and decree'of the Surrogate’s Court of the county of New York in favor of the petitioner, entered in the office of said Surrogate’s Court on the 18th day of October, 1915.</p>

Appeal by the defendant, St. Michael’s Protestant Episcopal Church, 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 May, 1915, denying defendant’s motion for judgment on the pleadings dismissing the complaint after an answer had been interposed thereto.

Appeal by the defendant, The American Credit Indemnity 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 3d day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Crime — grand larceny, second degree — reversible error — expression of opinion by juror as to defendant’s guilt — cross-examination tending to show connection with other crimes — appeal — compromise verdict.</p> <p>A judgment of conviction for the crime of grand larceny in the second degree should be reversed where it appears, first, that one of the jurors while in an intoxicated condition during the trial expressed his opinion freely to outsiders as to the defendant’s guilt before his evidence had been presented, and, second, that the cross-examination of the defendant as to his relations with others whose actions had become notorious in the criminal history of the city was so persistently prosecuted by the district attorney as to impress the jury with his belief of the defendant’s guilt in his relations with the other parties, and force was given to the implied charges by the court joining with the district attorney in the cross-examination.</p> <p>A compromise verdict should be carefully scrutinized by the appellate court in order to see that it is supported by the evidence.</p>

<p>Appeal by the defendants, Ferdinand Hecht and another, from a judgment 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, 1915, granting plaintiff’s motion for judgment on the pleadings after demurrers had been filed to the amended complaint.</p>

Appeal by the plaintiff, Caroline Stern, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 11th day of February, 1915, upon the decision of the court after a trial at the Hew York Special Term, and also, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.

<p>Appeal by the defendants, Morris Silver 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 7th day of June, 1915, upon the decision of the court after a trial at the New York Special Term. Defendant Silver also appeals, as stated in his notice of appeal, from the decision upon which the judgment was entered.</p>

<p>Bills and notes — banks — liability of bank receiving checks drawn to its order by an executor on the account of the estate and deposited to his personal account.</p> <p>Where an executor, who had opened a bank account in his representive capacity, drew a cheek thereon payable to the order of another bank which indorsed and placed the same to his personal account and thereafter he drew and deposited several other checks in the same manner and used the proceeds thereof to discharge a personal indebtedness to the bank and also to others, the form of the check was notice to the bank that the executor was depositing in his personal account funds of the estate, and it was chargeable with the knowledge of all facts which an inquiry suggested by such information would have disclosed, and is liable for all of the funds so deposited, whether used in payment of a personal indebtedness to it or to others.</p> <p>Scott, J., dissented, in part.</p>

<p>Appeal by Mason-Seaman Transportation 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 March, 1915, confirming the report of the appraisers in the above proceeding and denying a motion to set aside said report, and also as stated in the notice of appeal from the judgment entered in said clerk’s office on the same day.</p>

Appeal by the defendant, Yves De Villers, from a judgment of the Court of General Sessions of the City and County of New York, rendered against him on the 5th day of March, 1915, convicting him of the crime of grand larceny in the first degree.

<p>Real property — restrictive covenant — equity — injunction to enforce covenant denied.</p> <p>Where adjoining-lots were separately conveyed by deeds containing covenants requiring buildings to be set back from the street line and restricting the use of the property to residential purposes by prohibiting the grantees from carrying on certain specified trades on their premises, but compliance with the provision as to the building line has subsequently become impossible by reason of the fact that the city in which the lands are situated has taken a portion of the frontage for street purposes and the entire neighborhood is now devoted to business uses, a grantee who, himself, has violated the restrictive covenant by carrying on a prohibited trade and who has failed to object to the violation of.the covenants by other grantees until long after their .buildings were completed and devoted to trade, and who relies upon no equitable conditions, is not entitled to an injunction enforcing an observance of the covenant by adjoining owners.</p>

<p>Appeal by the defendant, Federal Union Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dew York on the 2d day of July, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th .day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

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

<p>Contract — subscription agreement for purchase of bonds of proposed railway company — consideration — mutuality of contract — cancellation — principal and agent — authority to borrow money — pledge of subscription agreement as collateral security — assignment of non-negotiable chose in action — defenses.</p> <p>A subscriber to a syndicate agreement for the purchase of bonds of a proposed railway company, sixteen days after his subscription, learned that the banking firm negotiating the same had made false representations to him pn which he relied, and immediately revoked and canceled in writing the subscription while the agreement was in the possession of the firm and before any rights or obligations to others had been incurred. It appeared that the firm had violated an express agreement, which was also implied in the instrument, that it should not be binding until all the bonds therein referred to had been subscribed for, that there was no consideration for the subscription, and no mutuality of contract. After the agreement had been deposited by the banking firm with a trust company as collateral security for a loan, the subscriber brought a suit against the persons formerly constituting the banking firm and the trust company, to secure the cancellation and surrender of the agreement, on the ground that it had been procured by false representations by the banking firm, and without consideration. Evidence and provisions of the agreement examined, and Held, that the plaintiff was entitled to have the agreement canceled;</p> <p>That such agreement being a non-negotiable instrument and invalid in the hands of the banking firm, and not constituting said firm the agent of the subscriber to borrow money thereon, was unenforcible against the subscriber by the trust company with which it had been deposited as collateral security.</p> <p>A non-negotiable chose in action in the hands even of a tona fide assignee is subject to all the equities available at the time of the assignment against the assignor.</p>

Appeal by the defendant, The Eidgway 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 5th day of November, 1914, upon the verdict of a jury for $17,000, and also from an order entered in said clerk’s office on the 12th day of November, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Real property — defect in title — clerical error in order of publication of summons inaction to foreclose tax lien — amendment nunc pro tunc.</p> <p>Where, in an action to foreclose a tax lien, the order of publication of the summons directed that the same be published in the “ New York Law Journal, published in the City of New York, Borough of Manhattan,” and in the “ Evening Telegram, published in the City of New York, Borough of Bronx,” and it appears that in the original order of publication, which was in typewriting, blank spaces had been léft for the names of the papers wherein the advertisement was to be made, after which appeared the words “ City of New York, Borough of Bronx,” and the judge in making the order struck out the word “Bronx ” and substituted the word “ Manhattan ” after the name of the Law Journal, but did not do so in the corresponding space after the name of the Evening Telegram, which is the only paper by that name in either borough, and which is published in the borough of Manhattan, and the publication has been made in the Evening Telegram, such clerical error may be amended nunc pro tunc, and does not render the title to the premises unmarketable.</p>

Appeal by the defendants, John J. Boyd, individually and as trustee, 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 15th day of April, 1915, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, New York, Westchester and Boston 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 New York on the 9th day of July, 1915, upon the decision of the court after a trial at the New York Special Term. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered, with notice of an intention to bring up for review the exceptions, findings of fact and conclusions of law made by the court.</p>

Appeal by the defendant, Indelli & Oonforti 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 13th day of March, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of April, 1915, denying defendant’s motion for a new trial made upon the minutes. The action is to recover money claimed to have been paid under duress.

Appeal by the defendant, The Eppinger & Russell Co., 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 November, 1915, denying defendant’s motion for judgment on the pleadings, dismissing the complaint after an answer had been served.

Appeal by the defendant, Metropolitan Bank, 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 12th day of May, 1915, affirming a, judgment of the City Court of the City of New York in favor of the plaintiff, entered upon a directed verdict, and also affirming the order of said court denying defendant’s motion for a new trial made upon the minutes.

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 26th day of June, 1915, 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 6th day of July, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, New York Wet Wash Laundry 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 30th day of November, 1915, denying its motion to continue an in j -auction pendente lite.

Appeal by the defendant, Nicholas E. Marcoglou, 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 February, 1915, adjudging him in contempt of court.

Appeal by the Beal Estate Title Insurance and Trust Company of Philadelphia and another, as trustees, and hy others from parts of a decree 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, 191Í.

Appeals by the plaintiffs, Patrick H. Sullivan and another, as executors, 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 16th day of July, 1916, and also from an order entered in said clerk’s office on the 12th day of August, 1915, resettling the prior order.

Appeal by the defendant, Motor Trades Publishing 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 9th day of June, 1915, overruling a demurrer to the complaint.

Appeal by the defendant, Frank A. Vanderlip, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 28th day of July, 1915, sustaining a demurrer to the fifth separate defense set up in the amended answer.

Appeal by the defendant, The Yew York Central Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Yew York on the 22d day of June, 1915, upon the decision of the court after a trial before the court without a jury.

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 in the office of the clerk of said court on the 15th day of March, 1915, allowing the defendant’s demurrer to an information charging him with unlawfully practicing as an undertaker without having complied with the provisions of section 295 of the Public Health Law (Consol.

<p>Motion to confirm referee’s report.</p>

Appeal by the defendant, Cohn Brown & 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 1st day of March, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles P. Buchanan, 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 November, 1914, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by Eugene M. Travis, as Comptroller, 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 29th day of April, 1915, fixing and assessing a transfer tax upon this estate.</p>

Appeal by the defendant, E. W. Bliss Buildings, Incorporated, from an order, 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 June, 1914, as resettled by an order entered in said clerk’s office-on or about the 16th day of October, 1914, opening plaintiff’s default.

<p>Landlord, and tenant — agreement of landlord to pay liquidated damages for failure to erect building — agreement construed — assignment by lessee of sums due under an agreement without assignment of lease — when assignee has no cause of action.</p> <p>The defendant agreed to erect a theatre on lands leased by it to the plaintiff’s assignor and further agreed that if the theatre were not completed by a certain date it would pay stated liquidated damages for each day of the delay. The defendant failed to erect the theatre by the day set and the contractor who was to erect the building brought an action to foreclose a mechanic’s lien. The defendant lessor and the plaintiff’s assignor, the lessee, thereupon entered into an agreement whereby the lessee was permitted to deduct from the monthly rent the amount due from the lessor for liquidated damages, and the lessor agreed that if the action of the contractor should terminate in its favor it would “upon the termination of said action ” pay the balance of the liquidated damages, and also agreed that if the contractor should recover it would pay the lessee the damages in consecutive monthly installments. The suit to foreclose the mechanic’s lien resulted in a judgment for the contractor and an appeal from said judgment by the lessor is still pending. The lessee, though still remaining in possession of the lands, assigned to the plaintiff his claim for installments of liquidated damages due to him under the aforesaid agreement with the lessor.</p> <p>Held, that the lessee could not assign his claim against the lessor under said agreement apart from an assignment of the lease itself, and as he remained in possession of the premises the complaint of his assignee should be dismissed;</p> <p>That it was a condition precedent to any right to recover on the agreement between- the lessor and lessee that the monthly rent shall have been paid by the lessee;</p> <p>That the agreement of the lessor to pay the full amount due if the action brought by the contractor “ terminated ” in favor of the latter, meant a final termination of said action, and' as an appeal from a judgment for the contractor is still pending there was no termination of said action which made the lessor liable under its agreement.</p> <p>McLaughlin and Scott, JJ., dissented.</p>

Appeal by the defendant, The Prudential Casualty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 3d day of March, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Joseph T. Mulligan, and the defendant, Jerome H. Buck, from parts of 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 2d day of September, 1915, sustaining a demurrer to the complaint.</p>

Appeal by the defendant, Central Bank of Medina, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Cortland on the 8th day of February, 1915, denying defendant’s motion to change the place of trial of this action from the county of Cortland to the county of Orleans, unless defendant consented to a reference of the action, which it declined to do.

Appeal by Ward & Tully and another from an award of the State Industrial Commission, made On the 14th day of July, 1915, awarding compensation to the respondents for the death of Vito Mazzarisi.

Appeal by the plaintiffs, Moritz Walter and others, individually and as committee, 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 July, 1915, granting defendant’s motion for judgment on the pleadings after an answer had been served, and also from the judgment entered in said clerk’s office on the 26th day of July, 1915, dismissing thé complaint pursuant to- said order. .

Appeal by the defendant, Walter R. Patten, 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 30th day of June, 1915, 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 28th day of June, 1915, denying defendant’s motion to dismiss the complaint.

Appeal by the plaintiff, John C. Botts, 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 October, 1914, as resettled by an order entered in said clerk’s office on the 15th day of October, 1914, denying plaintiff’s motion for a judgment on the pleadings and overruling his demurrer to two counterclaims.

<p>Appeal from an order of the Supreme Court, entered in the Bronx county clerk’s office on the 23d day of April, 1915.</p>

<p>Appeal from an order of the Supreme Court, entered in the Bronx county clerk’s office on the loth day of March, 1915, denying a motion for a bill of particulars.</p>

<p>New York city — claim for injuries.</p>

<p>Appeal from an order of the Appellate Term, entered on the 22d day of January, 1915, reversing an order of the City Court overruling a demurrer to the complaint.</p>

<p> Attorney and client — censure of attorney. </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, denying a motion to cancel, vacate and annul a statement of the result of a canvass by the county board of canvassers of the county of New York, and a certificate of election issued by the State Board of Canvassers of the State of New York.</p>

Cross-appeals from an order of the Supreme Court, entered in the New York county clerk’s office on the 1st day of April, 1915, (1) denying the defendants’ motion for a bill of particulars unless defendants consent to an inspection and discovery, in which event the motion was granted, and (2) denying the plaintiffs’ motion for inspection and discovery.

Appeals from an order of the Supreme Court, made at the Hew York Special Term bearing date the 11th day of February, 1915, as resettled by an order dated the 7th day of April, 1915, denying the relator.’s application for a writ of peremptory mandamus.

Reargument of appeal by the defendant from a j udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 33d day of October, 1913.

Appeal by the defendant from a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Suffolk on the 3d day of March, 1913, in favor of the plaintiff.

<p> Malicious prosecution—liability of Society for Prevention of Cruelty to Children. </p>

This is an appeal by the alleged incompetent from an order of the Supreme Court, made at Special Term and entered in Columbia county clerk’s office November 25, 1914, affirming the findings of an inquisition de lunático inquirendo, and from other orders made in the matter, two entered on the 27th day of November, 1914, and one on the 19th day of December, 1914.

<p> Attorney-at-law—improper practices. </p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the Washington county clerk’s office on the 11th day of January, 1915, for the sum of $1,087.86, and from an order bearing date the 4th day of January, 1915, denying the defendant’s motion for a new trial.

Appeal by the defendant from a judgment of the Supreme Court, entered on the 34th day of Hovember, 1914, in the office of the clerk of Herkimer county in favor of the plaintiff, and also from an order entered in said clerk’s office on the 3d day of December, 1914, denying defendant’s motion to set aside the verdict and grant a new trial.

Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of Cattaraugus county on the 31st day of October, 1914.

<p>Railroad — negligence.</p>

<p>Appeal from a final order of the Supreme Court in a condemnation proceeding, entered in the Montgomery county clerk’s office on the 34th day of November, 1914, disapproving and disaffirming an award of $500 to appellant as owner of the bed of the Mohawk river to the thread of the stream adjacent to the uplands described in the petition and condemned.</p>

<p>Motor vehicle — negligence —pleading.</p>

Appeal by Harry W. Moore from an order of the Special Term, entered in the office of the clerk of the county of Massau on the 27th day of March, 1915, denying, for want of power, appellant’s application for counsel’s fees and disbursements for the defense of the defendant, indicted for murder in the first degree.

<p> Practice —failure to give bill of particulars. </p>

Appeal by the plaintiff from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 12th day of March, 1915, denying a motion to punish for contempt, as resettled by an order entered in said office on the 30th day of March, 1915.

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 23d day of August, 1915, denying a motion to continue pendente lite a preliminary injunction restraining the superintendent of buildings from approving plans for the alteration of a building used as a theatre.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 14th day of May, 1915, denying a motion to direct the chamberlain of the city of Hew York to pay to the defendant Kellner a balance of money deposited with him pursuant to a judgment.</p>

<p>Appeal from an order of the Supreme Court, entered September 9, 1915, denying a motion to vacate or modify an order entered on the 14th day of June, 1915, granting an injunction and appointing a receiver.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 2d day of July, 1915, granting a motion for reargument of a motion for alimony and counsel fee.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 29th day of July, 1915, as resettled by an order entered on the 5th day of August, 1915, granting a stay of all proceedings herein.</p>

<p>Appeal from an order, entered June 23, 1915, granting a motion requiring the petitioners to give an undertaking as a condition of granting an order for an injunction and a receiver. Appeal from an order, entered June 30, 1915, dismissing the proceeding for failure to give said undertaking. Appeal from an order, entered August 19,1915, granting a motion to resettle both the above orders.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of January, 1915, denying in part a motion for an order assessing damages sustained by defendant by reason of an injunction.</p>

<p>Appeal from a judgment of the Court of Special Sessions of the City of New York, entered on the 10th day of February, 1915, allowing a démurrer to an information.</p>

<p>Appeal from part of an order of the Supreme Court, entered in the New York comity clerk’s office on the 30th day of April, 1915, denying in part defendant’s motion for a bill of particulars.</p>

<p>Appeal from an order of the Supreme Court, Bronx county, entered in the Bronx county clerk’s office on.the 16th day of June, 1915, denying the defendant’s motion for judgment on the pleadings.</p>

Appeals from judgments of the County Court; Bronx county, entered in the Bronx county clerk’s office on the 26th day of February, 1915, upon verdicts, and also from orders entered on the 6th day of March, 1915, denying motions for new trial.

<p>Appeal from a judgment of the Supreme Court, entered in the Mew York county clerk’s office on the 3d day of February, 1915, on a verdict, and also from an order entered on the 9th day of February, 1915, denying a motion for a new trial.</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, 1914, on a verdict, and also from an order, entered on the 24th day of Movember, 1914, denying a motion for new trial.</p>

<p>Appeal from orders of the Appellate Term affirming judgments of the Municipal Court of Bronx borough, first district.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Kew York county clerk’s office on the 8th day of April, 1915, on verdict, and also from an order, entered on the 7th day of May, 1915, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Kew York county clerk’s office on the 18th day of August, 1914.</p>