Volume 171 — New York Appellate Division Reports

<p>Appeal by the defendant, Frank H. Bryant, 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 15th day of June, 1915, setting aside a judgment of the Supreme Court in action No. 1, together with a judgment of affirmance thereof by the Appellate Division, Third Department, and a final judgment of affirmance thereof entered upon an order made by the Court of Appeals upon a stipulation and also releasing the People of the State of New York from the terms of said stipulation, and further directing that a supplemental summons issue bringing in the appellant as a party defendant in action No. 1, and granting a new trial of that action and also consolidating actions Nos. 1 and 2 herein, and amending the summons in action No. 2.</p>

<p>Indians — Indian Law construed—jurisdiction — ejectment to recover Indian lands — allotment of land to St. Regis Indian.</p> <p>.The State courts have jurisdiction to determine an action of ejectment as between members of the St. Regis tribe of Indians.</p> <p>Section 3 of the Indian Law permitting a native Indian to take, hold and convey real estate the same as a citizen, has no reference to the right of an Indian tribe to convey or allot lands of its reservation.</p> <p>Although section 7 of the Indian Law permits a tribe owning lands in common to divide the same among the individuals and families of the tribe so that it may be held in severalty and in fee simple, said section does not contemplate the granting of a certain lot to a certain individual, but on the contrary authorizes a general division among the members of the tribe of lands which have been held in common.</p> <p>It will be presumed that tribal lands continue to be held in common where there is no evidence that a partition under section 7 of the Indian Law has been made.</p> <p>Sections 103 and 103 of the Indian Law, authorizing the St. Regis tribe to allot tribal lands to individual Indians, etc., does not make an Indian to whom lands have been allotted the owner in fee; it merely entitles him to the possession and use of the lands allotted which continue to be tribal lands.</p> <p>Hence, where, after the death of an Indian to whom lands have been allotted under said section, his heirs convey all his interest to another Indian and the tribe itself subsequently confirms his title and allots the lands to the grantee, he is entitled to judgment in an action of ejectment brought against the heirs of the prior owner who have regained possession by a forcible entry.</p>

<p>Corporation — suit to dissolve insolvent corporation — distribution of assets — distinction between fixed liabilities and contingent claims — insolvency of surety of building contract after breach by contractor — agreement as to completion of work by owner — when fixed liability does not become contingent — cost to owner of completing contract— indemnity insurance —prior judgment—res adjudicata.</p> <p>In an action brought by the People to dissolve an insolvent corporation and to distribute its assets, distribution is first made to those creditors whose claims represent a fixed liability at the commencement of the action and order of sequestration.</p> <p>Where the claim of a creditor is contingent and the liability is not fixed and certain at that time, he can only share in the surplus remaining after the fixed liabilities and the expenses of administration have been paid.</p> <p>Where a corporation which had guaranteed the performance of a building contract by the contractor became insolvent and suit was brought to dissolve it after the contractor had made default and abandoned the</p> <p>work, the claim of the owner against the insolvent corporation was a fixed, not a contingent, liability and the owner is entitled to share in the assets of the surety pro rata with other claimants.</p> <p>Such fixed liability was not changed into a contingent liability because after the default it was agreed between the owner, the contractor and the surety that the owner should complete the work and that the contractor should act as superintendent and that the obligation of the surety to pay the owner any excess of cost over the contract price should remain in full force. Under such supplementary agreement the liability of the surety was expressly continued and the agreement merely involved a method of ascertaining the damages resulting from the breach of contract.</p> <p>Where the owner brought an action against the defaulting contractor wherein it was determined that premiums paid by the owner for insurance against liability for injuries to employees could not be charged against the cost of the work completed by the owner, the matter is res adjudieata and the expenditure cannot be charged against the work in computing the liability of the contractor’s surety.</p> <p>It is immaterial that in suits against other surety companies, to which the present parties were not parties, the owners recovered such sums expended for liability insurance.</p>

Appeal by Frances H. Stoddard, as administratrix, and others, from an order of the Surrogate’s Court of the county of Warren, entered in the office of said Surrogate’s Court on the 16th day of July, 1915, directing a sale of the real property of the deceased to pay the claim of the respondent against the estate of said deceased.

Appeal by the defendants, David Forsyth and another, from a judgment of the County Court of Chenango county in favor of the plaintiffs, entered in the office of the clerk of the county of Chenango on the 15 th day of July, 1915, upon the decision of the court decreeing a foreclosure and sale, a jury having been waived.

Appeal by the defendants, Benjamin Medwin and another, from a judgment and order of the County Court of Albany county, entered in the office of the clerk of said county on the 14th day of July, 1915, affirming a judgment of the City Court of Albany in favor of the plaintiffs.

Appeal by the defendant, Ulysses Gr. Stockwell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 28th day of November, 1914, upon the verdict of a jury, 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 the plaintiff, Hettie Parker Kyner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Otsego on the 2d day of October, 1914, dismissing the complaint upon the decision of a referee.

Appeal by the plaintiff, Ozark Cooperage and Lumber Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 3d day of March, 1911, 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 contestants, Walter W. Briggs and another, heirs at law and next of kin of the deceased, from a decree and order of the Surrogate’s Court in the county of Madison, entered in the office of said Surrogate’s Court on the 14th day of September, .1914, admitting an alleged will to probate and overruling the appellants’ objections to the issuance of letters testamentary thereon to Harriet C. Briggs.

<p>Workmen’s Compensation Law — appeal—findings of fact supported by evidence not reviewable—when mother dependent on son — method of computing wages of decedent.</p> <p>The Workmen’s Compensation Commission is the sole and “final” judge of the facts, and the Appellate Division is not only forbidden to trespass upon the jurisdiction of the Commission in this field, but by section 20 of the statute it is circumscribed even in its review of questions of law.</p> <p>Hence,- a finding by the Commission that a mother was a “ dependent ” of her son is “final” where there is evidence to support it.</p> <p>A claimant need not be reduced to absolute want or be declared a pauper in order to come within the provisions of the statute. Partial dependency is sufficient.</p> <p>Hence, a mother having some small means and some other sources of revenue at the time of the death of her son, may properly be held to be dependent within the meaning of the statute.</p> <p>Method of computing the wages of a deceased person approved.</p>

<p>Municipal corporation — city of New York — claim for damages to hoarding house and livery business by construction of Ashokan aqueduct — evidence.</p> <p>Claim against the city of New York for damages to a boarding house and livery business by the appropriation of land for the construction of the Ashokan aqueduct. Evidence examined, and held, that in view of the uncertainty thereof and of the impossibility of making a definite computation, an order confirming the report of the Damage Commission should be reversed as against the weight of the evidence, unless the claimant consents to accept $1,000.</p>

Appeal by the defendant, James 0. Brayton, from an order und judgment of the County Court of Washington county, entered in the office of the clerk of said county on the 23d day of February, 1915, reversing a judgment of a justice of the peace in defendant’s favor.

Appeal by the Horseheads Construction Company and another from an award of the State Industrial Commission, entered in the office of said Commission on the 30th day of June,. 1915, awarding compensation for the death of Emmett M. Gardner at Eord City, Penn.

<p>Appeal by Larkin & Sangster and another from an award of the Workmen’s Compensation Commission made on the 28th day of July, 1915.</p>

Appeal by the plaintiff, Henry Crandall Durkee, and the defendant, Anna M. Lawler, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk .of the county of Warren on the 8th day of Hay, 1915, dismissing the complaint upon the decision of the court, the jury having been dismissed by consent at the close of the case.

<p>Eminent domain—appropriation by State of portion of private preserve — right of owner to consequential damages to remaining property.</p> <p>Where an owner of property has properly fenced, posted and advertised premises to convert it into a private preserve, pursuant to statute, and has at a considerable expense erected a dam across a creek, making a trout pond covering several acres, and has converted the property into an excellent hunting and fishing preserve and summer home, valuable principally as such, the State upon appropriating a part of the stream below the pond so as to practically destroy the stream and pond as trout waters and to lessen the value of the remaining premises as a hunting and fishing preserve and summer home, the owner is entitled to an allowance for the consequential damages in addition to the value of the land actually taken.</p> <p>Lyon and Cochrane, JJ., dissented in part.</p>

Appeal by Francis L. Pruyn 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 11th day of June, 1915, denying his motion to confirm the report of an official referee.

Appeal by the defendant, Joseph H. Glennon, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 13th day of September, 1915, discontinuing this action and vacating the lis pendens heretofore filed upon payment by the plaintiff to the defendant of the costs of the action.

<p>Appeal by Morris L. Vitch and another from an award of ■ the State Industrial Commission, entered in the office of said Commission on the 30th day of June, 1915.</p>

Appeal by the plaintiff, Jennie P. Skelton, 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 Madison on the 19th day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, The City of Schenectady 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 Schenectady on the 20th day of May, 1915, upon the verdict of a jury for $850, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, C. B. Skinner 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 Schenectady on the 9th day of July, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 13th day of July, 1915, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Robert L. Speed, from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the 26th day of October, 1915, denying his motion to vacate or modify an order for his examination before trial.

Appeal by the defendant, The Argus Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 9th day of March, 1915, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 16th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Hattie Heidelberger and others, as executors, 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 19th day of May, 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 18th day of May, 1915, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the Ballston Refrigerating Storage Company and another from an award of the State Industrial Commission made on the 28th day of July, 1915.</p>

Appeal by the defendants, William A. Sullivan 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 St. Lawrence on the 7th day of November, 1912, upon the decision of the court directing judgment in plaintiff’s favor on the pleadings and on the opening, and also from the order entered in said clerk’s office directing said judgment, and also from an order entered in said clerk’s office on the 19th day…

Appeal by the defendants, Alexander Smith Cochran and William F. Cochran, Jr., individually and as executors and trustees, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of December, 1915, denying their motion that the issues raised by separate defenses and the reply thereto be tried separately and before the other issues.

<p>Real property—policy insuring title — obligation of insurer one of indemnity only — payment by insured of liens assumed by him in contract of sale — when insurer not liable.</p> <p>A policy which insures title to real estate is, under the laws of this State, essentially and solely a contract of indemnity, and a plaintiff declaring upon such policy can recover only his actual loss and cannot make the policy a subject of profit to him.</p> <p>Where a contract for the sale of lands required the vendee to accept the premises subject to any liens for assessments which should accrue subsequent to a specified day, and a title guarantee company which insured the title for the vendee did not include in the enumeration of liens for which it would not be liable the lien of an assessment which accrued after the day set by the contract of sale for the assumption of liens by the vendee, the insurer is not liable for the moneys paid by the vendee to satisfy said lien, for, under the circumstances, the vendee suffered no loss but only met. the obligations which he assumed under the contract of sale.</p>

Appeal by the defendants, Stephen V. R. Malcolm 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 Niagara on the 5th day of February, 1915, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of February, 1915, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by John Gr. Thomas and the Board of Canvassers of the county of Oneida and the city of Utica, defendants, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of</p> <p>Oneida on the 23d day of November, 1915, directing the issuance of a peremptory writ of mandamus, and also from an intermediate order entered in said clerk’s office on the 16th day of November, 1915, requiring the production and opening of a certain voting machine.</p>

<p>Railroad — negligence—injury to brakeman while coupling cars — charge.</p> <p>Where a brakeman, who was injured while engaged in coupling cars, has testified that the drawbar of one of the cars being out of alignment he attempted to push it into position with his foot at a time when with each hand he had hold of the grabirons of the cars to be coupled and the court has charged that the plaintiff cannot recover if the cars were moving at the time he attempted to straighten the drawbar, it is not error for the court to refuse to charge in effect that there can be no recovery if the two cars when at a standstill were from four to six feet apart if, under the testimony, there is a question of fact as to the distance between the cars before they were moved together to couple them. If the defendant intended its request to mean that it was incredible as a matter of law that the plaintiff could have taken hold of both grab-irons when they were separated by séven or nine feet, as claimed by defendant, it should have called the court’s attention to that interpretation of its request.</p>

Appeal by Valentine A. Truszkowski 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 21st day of September, 1915, as resettled by a further order entered in said clerk’s office on the 22d day of September, 1915.

Appeal by the plaintiff, Florence W. Monypeny, 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 7th day of December, 1915, denying her motion to confirm the report of a referee in an action for divorce.

Appeal by the plaintiff, The Baltimore and Ohio Railroad Company, 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 New York on the 13th day of May, 1915, affirming a judgment of the City Court of the City of New York dismissing the complaint, with costs, on motion of the defendant made at the opening of the trial for judgment on the pleadings.

<p>Appeal by the defendant, The City of New York, 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 8th day of July, 1915, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from an order entered in said clerk’s office on the 26th day of June, 1915, as resettled by an order entered in said clerk’s office on the 29th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.</p> <p>Appeal by the plaintiffs, Austin D. Lord and others, from so much of said judgment as dismisses the second cause of action contained in the complaint, pursuant to the direction of the court.</p>

Appeal by the plaintiff, John M. McGrath, from part of 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 12th day of March, 1914, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiffs, Sylvanus L. Schoonmaker and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of December, 1915, upon the decision of the court dismissing the complaint at the opening on a trial at the New York Special Term.

Appeal by the petitioner, Florine A. Kirkholder, from a decree of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 24th day of December, 1915, adjudging and decreeing that the petitioner is not entitled to the legacy of $5,000, mentioned in the 7th paragraph of the last will and testament of William H. Kirkholder, deceased, dated May 17, 1907, or to any part thereof, and dismissing her petition for the judicial settlement of…

<p>Appeal by the plaintiff, Adam Kirchhoff, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Westchester on the 25th day of June, 1915, upon the decision of the court after a trial at the Westchester Special Term.</p>

Appeal by the defendant, Jamaica Bay Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of May, 1915, as resettled; also appeal by the defendants, Thomas Swain and another, from said judgment as resettled in so far as it fails to direct a dismissal of the complaint as to them. The judgment was rendered upon the report of an official referee.

Appeal by the defendants, Joseph W. Bierwirth and another, from, a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 19th day of May, 1915, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 29th day of May, 1915, denying defendants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 15th day of May, 1915, granting…

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 8th day of March, 1915, on the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 25th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s…

Appeal by the defendants, Lucius H. Beers and another, individually and as trustees, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1915, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Bank for Savings in 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 23d day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The National Reserve Bank of the City of New York, 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 9th day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of December, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Blaugas Company of Cuba 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 19th day of May, 1915, upon the decision of the court after a trial at the New York Special Term.</p>

<p>Statute of Frauds — sale of goods — correspondence not satisfying</p> <p>statute.</p> <p>A memorandum of an agreement to purchase goods in order to take a ease out of the Statute of Frauds must contain substantially the whole agreement and all its material terms and conditions, so that one reading it can understand what the agreement is.</p> <p>Hence, correspondence which while admitting an agreement to purchase goods indicates throughout a disagreement between the parties as to the kind and quality of the goods, is insufficient to satisfy the statute.</p>

<p>Guaranty and suretyship — agreement between surety and principal that competent legal evidence of discharge be furnished — termination of liability by act of sureties.</p> <p>A provision in an agreement between sureties and principal for the payment of a certain premium, and a further sum annually -thereafter in advance, until they shall “be furnished with [competent] written legal evidence of their discharge from liability” under the bonds, does not apply where the sureties on their own initiative procure an order terminating then- further liability thereunder. Such a provision should only be given effect where the sureties continue the bonds.</p> <p>Under such circumstances, no premium having been paid, the sureties are only entitled to the proportionate share of the premium payable on each bond from the date of its execution to the date of the entry of the order procured on their application releasing them from liability. This is true, although the order discharging the principal did not contain any provision releasing the sureties from liability.</p>

Appeal by the judgment debtor, Ernest Onetto, from an order of a justice of the Supreme Court, entered in the office of the clerk of the county of Chautauqua on the 29th day of June, 1915, adjudging said judgment debtor to be in contempt of court for disobedience of an order in supplementary proceedings made by said justice, and for failure to obey certain orders and directions of the referee therein, and imposing a fine upon said judgment debtor for such disobedience and…

Appeal by the defendant, Margaret Kelley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 11th day of December, 1913, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendants, Andrew J. Maguire and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of June, 1915, granting petitioner’s application for an alternative writ of mandamus.

<p>Attorney and client — right of attorney to lien under Judiciary Law, section 475 — “ charging lien ” and “ retaining lien ” distinguished — lien for services outside of any action or special proceeding.</p> <p>Section 475 of the Judiciary Law provides for a lien only in eases in which there has been commenced an action or special proceeding in which the client has asserted a claim or a counterclaim. It regulates what is known to the law as a “charging lien” as distinguished from a “retaining lien,” which is dependent upon possession by the attorney of papers, securities or moneys belonging to his client.</p> <p>Hence, an attorney may not, under said section, establish and enforce a lien upon his client’s property for a general balance on account for services rendered outside of any special proceeding or action.</p>

Appeal by the defendant, Glasco Ice 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 Hh day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sure Seal Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of March, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of March, 1914, denying plaintiff’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order herein denying a motion to set aside…

Appeal by Oscar Clark Miller 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 1st day of April, 1915, dismissing the petition herein.

Appeal by the defendant, Lecouver Press 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 13th day of October, 1915, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Arthur Mendel 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 13th day of August, 1915, upon the decision of the court after a trial at the New York Trial Term, a jury having been waived.

Appeal by Fleischmann Realty Company, Inc., from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of March, 1914, as sustains objections to the confirmation of the report of the commissioners of estimate herein as to the awards for damage parcels Nos. 2 and 2A and directs the return of the report to said commissioners for revision and correction.

Appeal by the defendant, Walter 0. Hatch, 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 25th day of September, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of September, 1915, denying appellant’s motion for anew trial made upon the minutes.

Appeal by the defendant, Edward V. Odell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of September, 1915, upon a decision of the court after a trial at the New York Special Term, with notice of intention to bring up for review an order entered in said clerk’s office on the 1st day of September, 1915, denying defendant’s motion for leave to submit proposed findings of fact and…

Appeal by the defendant, Erie Railroad Company, 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 7th day of December, 1915, directing defendant to accept service of a notice withdrawing demurrers.

Appeal by the defendant, Lutz & Schramm 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 December, 1915, denying defendant’s motion to stay the trial of this action pending the trial of an action now at issue in the State of Pennsylvania.

<p>Appeal by the defendant, Robert S. Thorburn, as president, 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 Yth day of April, 1915, upon the verdict of a jury, 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 plaintiff, Ruth De Rochemont, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of New York on the 19th day of October, 1915, upon a decision of the court after a trial at the New York Trial Term, a jury having been waived.

Certiorari issued out of the Supreme Court and attested on the 18th day of February, 1915, directed to Edward B. La Petra, a justice of the City Court of the City of New York, com- manding him, to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in adjudicating relator, guilty of a criminal contempt of court, and punishing him therefor.

Appeal by the defendant, Edward W. Browning, 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 July, 1915, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, John C. Harris, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 24th day of March, 1915, dismissing the complaint upon the decision of the court after a trial at the Saratoga Special Term.

<p>Workmen’s Compensation Law— hazardous employments — when rag-picker not engaged in longshore work or in manufacture of fertilizers or upon a garbage disposal plant —presumption that case comes within statute.</p> <p>An employee of a contractor engaged in searching for rags among the rubbish delivered by wagons at a city dump at the foot of a street, not for the purpose of preparing the refuse for shipment, and not having anything to do with the removal thereof, is not engaged in “longshore work ” which is declared to be a hazardous employment by group 10 of section 3 of the Workmen’s Compensation Law.</p> <p>The mere dumping of refuse, which may contain material valuable as a fertilizer, does not make the dump a “garbage disposal plant” within the meaning of group 38 of said section, and an employee engaged in searching for rags and other articles of value among the rubbish is not employed in the manufacture of fertilizers or upon a garbage disposal plant connected with such manufacture within the meaning of said group.</p> <p>The presumption raised by section 31 of the statute, that a case comes within the meaning of the law, does not permit the words of the statute to be warped from their usual and ordinary meaning. It relates more to the facts, and so far as it affects the construction of the statute itself, it can only be material as indicating that the statute is a remedial one and should be given a liberal construction.</p>

Appeal by the defendants, Annie V. Elkema 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 7th day of October, 1915, and from an interlocutory judgment entered in said clerk’s office, pursuant to said order, on the 8th day of October, 1915, granting plaintiffs’ motion for judgment on the pleadings after a demurrer had been interposed to the second amended complaint.

Appeal by the plaintiff, The Dry Milk Company, from an interlocutory judgment of the Supreme Court in. favor of the respondent, entered in the office of the clerk of the county of Chenango on the 27th day of August, 1915, upon the decision of the court rendered after a trial at the Chenango Special Term, overruling plaintiff’s demurrer to the several defenses and counterclaims contained in the respondent’s amended answer.

<p>Appeal by the defendants, Egburt E. Woodbury and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 28th day of April, 1915, denying their motion to quash the writ of certiorari herein.</p>

Appeal by the defendant, Ceylon Gr. Chaney, as supervisor, from an order of the • County Court of St. Lawrence county, entered in the office of the clerk of said county on the 16th day of August, 1915, directing that a writ of peremptory mandamus issue herein to the appellant commanding him, to issue bonds of the town of Canton to the amount of $125.72.

Appeal by the plaintiff, William A. McCauley, 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 20th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of March, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by William A. ‘Prendergast, as comptroller of the city of New York, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 1st day of April, 1915, granting petitioner’s application herein for a peremptory writ of mandamus.</p>

Appeal by the plaintiff, George Miller, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of May, 1915, overruling plaintiff’s demurrer to certain separate defenses set up in the answer.

. Appeal by the plaintiff, Metallurgical Securities Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of New York on the 22d day of October, 1915, upon the verdict of a jury for $200, 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 defendant, Mary J. Odell, individually and as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of January, 1916, denying said defendant’s motion to bring into the action certain additional parties.

<p>Appeal by the plaintiff, Max Stoller, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of November, 1915, upon a dismissal of the complaint upon the pleadings at the opening of the trial.</p>

Appeal by the defendant, Robert B. Steele, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1915, denying defendant’s motion for judgment on the pleadings after a demurrer had been interposed to the complaint.

Appeal by Matte Wium, petitioner, from an order of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 28th day of September, 1915, denying her petition, as one of the next of kin of the deceased, for a citation ordering the production of the original or a certified copy of the later will of May 18, 1907, and of' a revocation of March 26, 1908, both of which were executed in Danish in Copenhagen, Kingdom of Denmark, and…

Separate appeals by Wotherspoon Plaster Mills, Incorporated, and another, 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 16th day of March, 1914, overruling their objections to the confirmation of the amended report as to assessments for benefit herein, and confirming said report as made by the commissioners of estimate and assessment in so far as it relates to the lands of the…

<p>Villages — sufficiency of petition to extend corporate limits — statement of boundaries — verification.</p> <p>A petition to extend the corporate limits of a village, which states the boundaries of the new territory in so vague and indefinite a manner that disputes may arise as to the right to levy taxes or as to the jurisdictional right over waters, is insufficient.</p> <p>A verification of such petition, as provided by section 526 of the Code of Civil Procedure, does not comply with section 348 of the Village Law, as amended, especially where the body of the petition does not allege the jurisdictional fact that its signers represented a majority in value of the property therein assessed upon the last preceding town assessment roll. The corporate limits of a village should not be a matter of deduction through legal reasoning, but should be made obvious by being stated and described with common certainty.</p> <p>The same certainty necessary for original boundaries should be required in marking out annexed territory.</p>

<p>Appeal by the defendant, Carl H. Oliver, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 23d day of July, 1915, upon the decision of the court after a trial before the court without a jury.</p>

Appeal by the defendant, John William Lawsberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 22d day of March, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

Submission of a controversy upon an agreed statement of facts, pursuant to section 12J9 of the Code of Civil Procedure. A review is sought of a determination of the Public Service Commission denying the application of the Niagara and Erie Power Company for permission to construct an electrical plant, consisting of poles, wires and conduits, in the town of Portland, Chautauqua county.

<p>Corporations — distribution of assets without compliance with law — liability of directors — trust fund for benefit of creditors.</p> <p>Directors of a corporation who sell and transfer the assets thereof without compliance with the provisions of the General Corporation Law and the Stock Corporation Law, cannot relieve themselves from personal liability in a suit by a judgment creditor of the corporation by merely alleging that at the time of the transfer of the assets a fund was placed in trust for the payment of all debts, and that plaintiff by failing to present his claim lost his rights.</p> <p>To set aside a fund for the purpose of paying debts, but without paying them, is no defense against a creditor whose judgment has been made worthless by the sale of all the debtor’s property, without notice, and the division of the proceeds among the stockholders and directors.</p>

Certiorari issued out of the Supreme Court and attested on the 11th day of June, 1914, directed to the Public Service Commission, State of New York, Second District, and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting a certificate of convenience and necessity to the Frontier and Western Eailroad Company.

<p>Appeal by Hills Bros. Company and another from an award of the State Industrial Commission made on the 22d day of June, 1915.</p>

Certiorari issued out of the Supreme Court and attested on the 9th day of January, 1915, directed to Hermann M. Biggs, as State Commissioner of Health of the State of New York, and others, commanding them to certify and return to the office of the clerk of the county of Warren all and singular their proceedings had on a hearing for the approval of a certain site for the establishment of a hospital for the treatment of persons suffering from pulmonary tuberculosis, in the…

<p>Workmen’s Compensation Law — evidence insufficient to sustain claim.</p> <p>The Workmen’s Compensation Commission has no authority to make an award in the absence of at least some evidence that the employee met with the injury while he was at work for the specified employer, and as a consequence of something that had a relation to the work of the employer, something done by him or by others while he was so employed.</p> <p>Hence, where a claim is made for the death of an assistant foreman, isa the employ of the street department of a gas company, who, while sweeping the paving where work was being done, suddenly fell to the street and died some days later, and the autopsy reveals that he received a fracture of the skull from the fall, and that the fall was in all probability due to an attack of cardiac syncope, to which he was predisposed, and there is no evidence to indicate that the deceased’s fall was due to anything except that while standing in the street he happened to have a sudden attack of cardiac syncope, and there is nothing to sustain a finding that his injury was “ accidental ” or that it arose “ out of” the employment, except that the sudden fainting spell came during working hours, the claim should be dismissed.</p> <p>Kellogg, P. J., dissented.</p>

Appeal by the defendant, The New York Central and Hudson River 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 Onondaga on the 28th day of April, 1915, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 28th of May, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Theodore Rharas, 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 17th day of November, 1915, upon a dismissal of the complaint upon the pleadings at the- opening of the trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, Consolidated Telegraph and Electrical Subway 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 9th day of July, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 22d day of October, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Sale — agreement constituting executed sale — waiver by purchaser of breaches of contract by vendor to deliver.</p> <p>In an action to recover a balance alleged to be due and unpaid upon a sale of goods by the plaintiff to the defendant, it appeared that under the terms of sale the defendant was entitled to ten per cent discount upon payment within thirty days from September fifteenth; that the goods were to be held in plaintiff’s warehouse subject to defendant’s orders. There was a dispute as to the terms of credit and the defendant after alleged breaches of the contract by the plaintiff in failing to deliver, failed to rescind the contract and made further demands for delivery and accepted several cases of goods after the last alleged breach of the contract, and also wrote a letter to the plaintiff, inclosing a statement of the account with a payment thereon, without claiming or mentioning a rescission.</p> <p>Held, on all the evidence, that the transaction was an executed sale and title to the property passed to the defendant on the date thereof, subject to plaintiff’s right to hold it until payment of the purchase price was made pursuant to the terms of credit;</p> <p>That the defendant waived the alleged breaches of the contract committed prior to the writing of the letter, and its refusal to receive and pay for the balance of the goods, for which the action is brought, was unjustifiable.</p>

Appeal by the defendant, The New York Times Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of June, 1915, setting aside the verdict of a jury in defendant’s favor and granting plaintiff’s motion for a new trial.

<p>Contract — action for breach of agreement to form corporation — evidence — by-laws — confidential communications —evidence by attorney as to conversations by all parties in interest in his presence.</p> <p>In an action to recover damages for breach of an alleged contract whereby the two plaintiffs and the two defendants agreed to form a corporation, the complaint alleged that the plaintiffs agreed to transfer to the corporation all the property and outstanding accounts of a copartnership at a certain value; that the defendants agreed to transfer to the corporation a certain sum in cash and machinery of a certain value; that a portion of the capital thus created was to be divided between the plaintiffs and the balance given to the defendants jointly; that the defendants agreed to permit the plaintiffs to be in exclusive charge and control of the business and to receive a certain salary per week and a percentage of the net profits. It was further alleged that the defendants failed to carry out the terms of the agreement and prohibited the plaintiffs from managing and controlling the business. The by-laws of the corporation signed and duly approved by all of the parties to the agreement were placed in evidence, and provided that the president of the company, who was one of the defendants, was to have general control and management of its business and affairs in the recess of the board of directors.</p> <p>Held, that if the jury found that the defendants agreed to allow the plaintiffs exclusive control of the corporation in spite of the express provisions of the by-laws to the contrary, their verdict was against the weight of the evidence.</p> <p>Evidence by the attorney who formed the corporation as to conversations which took place in his office at the time of the incorporation, and in the presence of all four parties, was admissible, since the conversations were had in the presence of all the parties.</p>

<p>Pleading — motion to make complaint more definite and certain — bill of particulars.</p> <p>A complaint which alleges that it was agreed on or about a certain date “by various agreements in writing,” that the defendant should guarantee to the plaintiff the indebtedness of a corporation without alleging any one of the agreements either in substance or form, is defective, because it states only a legal conclusion as to the effect of “various agreements,” and a motion to make it more definite and certain by setting forth in full or by annexing to the complaint as exhibits the alleged agreements, should be granted, although the plaintiffs have voluntarily served a verified bill of particulars, setting forth in full three agreements stated to be the ones referred to in the complaint.</p> <p>There is a distinction between the office of a bill of particulars and a motion to make the pleading more definite and certain.</p> <p>A bill of particulars is no part of the pleadings and cannot enlarge the cause of action or perfect an imperfect pleading.</p>

Appeal by the defendant, Jessie D. Bowne, from part of 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 3d day of June, 1915, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, William H. Seaich, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of July, 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 9th day of July, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Evelyn de Cordova, as executrix and trustee, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1915, as grants unconditionally defendant’s motion for a bill of particulars, and fails to provide for the examination of the defendant before trial.

Appeal by the defendant, the Village of Waterford, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 7th day of June, 1915, granting respondent’s motion for a peremptory writ of mandamus requiring the board of trustees of the village of Waterford to cancel and annul a resolution calling for the submission of six propositions to the voters of the said village at a special election to…

<p>Appeal by the defendant, American Separator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 11th day of March, 1915, upon the decision of the court, a jury having been waived.</p>

Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, 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 21st day of June, 1915, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 25th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporations — city of New York — contract employing engineer for improvement of Riverside drive — election by city to abandon proposed improvement — when engineer not entitled to commissions.</p> <p>Where a contract made by a borough president in the city of New York employing an engineer to prepare plans and specifications for an extension of Riverside drive provided that for supervising the work the engineer should receive a certain percentage of its actual cost, part thereof to be paid when the plans were approved by the borough president and the balance of the percentage to be paid during the progress of the work upon estimates of the contractors certified to by the engineer from time to time, the engineer, having received the percentage on the approval of the plans, cannot recover the balance of the percentage from the city where, having entered into a contract for the construction of the improvement, it afterwards elected to rescind the building contract.</p> <p>It seems, that, assuming the contract of the borough president with the engineer to be valid, he may recover his percentages thereunder should the city in its discretion elect to proceed with the work.</p> <p>Bowiiiire and Smith, JJ., dissented.</p>

Appeal by the plaintiffs, Samuel Mann and others, 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 12th day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of December, 1914, denying plaintiffs’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, John Rubel, 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 23d day of September, 1915, as resettled by two other orders entered in said clerk’s office on the 21st day of October,</p> <p>1915, and the 23d day of November, 1915, respectively, in so far as said orders grant defendant’s motion to change the place of trial herein.</p>

<p>Appeal by the defendant, William V. Eberhart, from a judgment of the Court of Special Sessions of the City of New York, Part II, rendered against' him on the 4th day of November, 1914, convicting him of violating the Penal Law in failing to comply with subdivison 3 of section 8a of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as added by Laws of 1913, chap. 740), and also from an order entered in the</p> <p>office of the clerk of said court on the 11th day of November, 1914, denying defendant’s motion for arrest of judgment.</p>

Appeal by the defendant, William Bertlini, from a judgment of the County Court of Kings county, rendered against him on the 5th day of April, 1915, convicting him of the crime of robbery in the first degree, and also from an order denying his motion for a new trial.

Appeal in the action by the plaintiff, William H. Hastrich, individually and as executor, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of January, 1915, dismissing the action and vacating an injunction pursuant to the decision of the court after a trial at the Kings County Special Term.

<p>Appeal by the defendant, New York Telephone 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 21st day of February, 1915, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 24th day of February, 1915, nunc pro tunc as of the 18th day of February, 1915, denying appellant’s motion for a new trial made upon the minutes.</p>

Appeal by the petitioner, Edmund F. Harding, 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 December, 1915, denying his motion for an order requiring the assignee for the benefit of creditors of the stock brokerage copartnership firm of Beers & Owens to deliver to him 300 shares of Interborough Metropolitan common stock upon the terms proposed by him.

Appeal by the defendant, Sun Printing and Publishing Association, 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 21st day of October, 1915, overruling a demurrer to the complaint.

Appeal by the defendant, Lehigh Valley Coal Company, 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 29th day of December, 1914, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 22d day of December, 1914, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Southern Pacific Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1915, denying their motion to dismiss a complaint upon the ground that the court had no jurisdiction of the action.

Appeal by the plaintiff, Alexander S. Bacon, 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 29th day of October, 1915, upon the decision of the court dismissing the complaint after a trial at the New York Special Term.

<p>Appeal by. the defendants, David Horsley and others, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1916, denying their motions to compel plaintiff to reply to new matter set up in their amended answers.</p>

Appeal by the defendants, Louis F. Eothschild 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 30th day of April/ 1915, sustaining a demurrer to the separate defense contained in the amended answer.

Appeal by the defendant, G-. C. Taylor, as president, from a judgment of the1 Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 26th day of April, 1915, upon the verdict of a jury for $243, and also from an order entered in said clerk’s office on the 8th day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the contestants, Maatje Zegel and another, from a decree of the Surrogate’s ■ Court of the county of Suffolk entered in the office of said Surrogate’s Court on the 11th day of January, 1915, settling the accounts of the respondent, with notice of an intention to bring up for review two other decrees entered herein on the 30th day of June, 1913, and the 13th day of September, 1913, respectively.</p>

<p>Appeal by the relator, Max Katz, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of March, 1915, quashing a writ of certiorari.</p>

Appeal by the defendant, William H. Foster, 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 10th day of May, 1915, upon the verdict of a jury rendered by direction of the court.

Certiorari issued out of the Supreme Court and attested on the 13th day of March, 1915, directed to Eugene M. Travis, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in denying the application of the relator for a revision and reduction in the amount of a franchise tax imposed upon it pursuant to the provisions of section 186 of the Tax Law (Consol.

<p>Workmen’s Compensation Law—injury to teamster engaged in drawing sand from pit — operation of wagon or truck — effect upon liability of general employer of liability of special employer.</p> <p>Where a proprietor of a sand pit hired a team and teamster from a manufacturer of brick to draw sand from the pit and while the teamster was loading the wagon the sandbank fell, fatally injuring him, he is entitled to the protection of the Workmen’s Compensation Law and either the proprietor of the sand pit, the special employer, or the briekmaker, the general employer, may beheld liable.</p> <p>A teamster drawing sand from a pit is engaged in a hazardous employment within the meaning of groups 19 and, 41 of section 2 of the Workmen’s Compensation Law.</p> <p>The operation of a wagon or truck referred to in group 41 of section 2 of the Workmen’s Compensation Law is not confined merely to the moving</p> <p>vehicle, but relates to anything incident to the employment such as the loading and unloading of the wagon, the necessary care and attention to the wagon and horse. Any act which falls within the duty of the teamster as such is within the-proteetion of the statute.</p> <p>The fact that the special employer may be held liable does not absolve the briekmaker, the general employer, from liability.</p> <p>A general employer is liable where the injury occurs within the lines of the general employment and the liability is not destroyed by the fact that a special employer may also be liable, thus giving the employee a choice of remedies with but one compensation.</p> <p>Woodward and Howard, JJ., dissented, with opinion.</p>

<p>Bankruptcy — preference—transfer of real estate by bankrupt to wife — failure to record until within four months of filing of petition.</p> <p>Subdivisions a and b of section 60 of the Bankruptcy Act, providing that a transfer recorded within four months of the filing of the petition shall be deemed a preference “if by law such recording or registering is required,” does not apply where the State statute as to recording is permissive only.</p> <p>Hence, a transfer of real property by a bankrupt to his wife made more than a year before but recorded within four months of the filing of the petition does not constitute a preference in this State because the Recording Act relating to real property is permissive only.</p> <p>Cochrane, J., dissented.</p>

Appeal by Friestedt Underpinning Company and another from an award of the State Industrial Commission, entered in the office of said Commission on the 6th day of August, 1915, granting compensation herein.

<p>Appeal by the defendant, James 0. Oleary, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of October, 1915, affirming a judgment of the City Court of the City of New York, entered in the office of the clerk of said court on the 21st day of June, 1915, upon the verdict of a jury rendered by direction of the court, and also affirming an order of said court denying defendant’s motion for a new trial.</p>

<p>Trial — action by insurer of automobile under subrogation clause in policy — discontinuance of action as to owner — right of other defendant to jury trial — evidence — testimony of chauffeur as to condition of steering gear.</p> <p>Where the insurer of an automobile, after paying the owner damages to the car resulting from a collision with a post while being returned to the garage company by a chauffeur employed by it pursuant to an agreement with the owner that one of its men should deliver the ear to him in the morning and should come and take it back to the garage in the evening, brought -an action against the garage company under the subrogation clause in the policy and made the owner a defendant and placed the action on the equity calendar, but before the trial the owner withdrew his answer, the other defendant had a constitutional right to a trial by jury. It is immaterial that a formal order discontinuing the action as to the owner was not entered.</p> <p>It was error in the trial of such action to refuse to allow the chauffeur to testify as to the condition of the steering gear, he having testified that something was wrong therewith.</p>

<p>Pleading — action to recover demurrage charges on several cars at different times—complaint — motion to compel plaintiff to separately state and number causes of action.</p> <p>Where, in an action by a railroad company to recover demurrage charges on several cars at different times, the plaintiff intended to state but a single cause of action .and it is “ fairly doubtful ” whether the complaint departs from this purpose, a motion to require the plaintiff to separately state and number the causes of action should be denied.</p> <p>Putnam, J., dissented.</p>

<p>Appeal hy the defendant, William P. Ward, 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 8th day of December, 1915.</p>

<p>Practice—judgments—discretion of judge at Special Term to vacate judgments previously rendered hy him — review hy Appellate Division of such order — costs.</p> <p>A judge at Special" Term may, in his discretion, vacate judgments of foreclosure previously rendered by him, where he discovers in a later action involving the same parties, that such judgments were contrary to law, involved a breach of trust, were unjust to the rights of the defeated party, and were rendered under a misapprehension of the true facts.</p> <p>An order vacating judgments under such circumstances is subject to review by the Appellate Division, which will neither reverse nor modify the action of the Special Term, unless convinced that the facts did not justify the exercise of discretion.</p> <p>A motion to vacate judgments under such circumstances should only be granted upon terms imposed upon the moving party.</p>

<p>Appeal by the plaintiff, William J. Dixon & Company, from an order of the Supreme Court, made at the New York Special</p> <p>Term and entered in the office of the clerk of the county of New York on the 3d day of January, 1916, denying its motion to compel defendant separately to state and number its defenses and counterclaims and to make its defenses and counterclaims more definite and certain.</p>

<p>Appeal by the plaintiff, A. D. Kneuper Specialty 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 8th day of November, 1915, denying its motion for judgment on the pleadings.</p>

Appeal by the plaintiff, The City of New. York, 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 30th day of December, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of December, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Agnes D. Cloud, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of December, 1915, overruling a demurrer to a separate defense contained in the plaintiff’s reply.

Certiorari issued out of the Supreme Court and attested on the 30th day of April, 1915, directed to Edward E. McCall and others, constituting the Public Service Commission of the State of New York for the First District, 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 requiring the relator to extend its mains and services to Douglaston, including Douglas Manor.

Appeal by George E. Green, 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 20th day of September, 1915, denying his motion to cancel a liquor tax certificate.

Separate appeals by the defendant, George Willi, Jr., in each case from two judgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the clerk of the county of New York on the 8th and 9th days of July, 1915, respectively, and also from two orders entered in said clerk’s office on the 12th day of July, 1915, denying defendant’s motion for a new trial in each case made upon the minutes.

Appeal by the defendants, Alfred J. Moisant 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 3d day of May, 1915, upon the verdict of a jury rendered by direction of the court, and also an appeal by the defendant Moisant from an order entered in said clerk’s office on or about the same day denying his motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Stuard Hirschman, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Queens on the 29th day of May, 1915, upon the decision of the court after a trial at the Queens County Special Term.</p>

Appeal by the defendant, The New York, New Haven and Hartford Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of April, 1915, upon the verdict of a jury for $7,500; also from an order entered in said clerk’s office on the 13th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office…

Appeal by the plaintiff, Margaret A. O’Connor, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 4th day of December, 1915, vacating and setting aside a judgment herein in her favor.

Certiorari issued out of the Supreme Court and attested on the 31st day of July, 1915, directed to the Public Service Commission of the State of New York, Second District, commanding the Commissioners to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in denying the application of the relator for leave to issue mileage books at a greater rate than two cents a mile.

Appeal by the plaintiff, Thomas F. Kevins, 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 23d day of June, 1915, granting defendant leave to serve an amended answer setting up as a defense and counterclaim that the title to the cause of action set up in the complaint passed to a trustee in bankruptcy who was appointed, and who qualified on the 13th day of August, 1901, and also an…

Appeal by the defendants, Suffolk Contracting Company and others, from a judgment of the Supreme Court in favor of the plaintiff, rendered against them on the 18th day of April, 1914, convicting them of the crime of conspiracy.

Appeal by the defendant, The New York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bockland on the 5th day of June, 1915, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 4th day of October, 1915, denying defendant’s motion for a hew trial made upon the minutes.

<p>Appeal by the plaintiff, Reedy Elevator Company, from so much of a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Kings on the 14th day of June, 1915, as dismissed the amended complaint, on the merits, as against the respondent, upon the decision of the court after a trial at the Kings County Special Term.</p>

Certiorari issued out of the Supreme Court and attested on the 5th day of February, 1915, directed to Robert Adamson, as fire commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Queens all and singular his proceedings had in dismissing the relator, a lineman in his department, after a hearing on charges.

Appeal by George H. Bell, as commissioner of licenses of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of Hovember, 1915, granting petitioner’s motion for a peremptory writ of mandamus.

Appeal by the petitioner, Rose Antonopulos, from an order of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 14th day of August, 1915, and further entered in the office of the clerk of the county of Richmond on the 23d day of August, 1915, denying her motion to vacate an order of adoption.

Appeal by Annie McGrath, from an order and decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 20th day of May, 1915, admitting decedent’s will to probate, and construing a paragraph thereof. Patrick Daly, who died January 23, 1915, left a will in which there was this residuary clause: “ Fourth.

<p>Bailment — wrongful pledge of personal property by bailee — action by owner — erroneous charge — when pawnbroker entitled to benefit of Factors’ Act — statute construed.</p> <p>Where the plaintiff intrusted jewels to a person for the purpose of sale to a particular purchaser with a reservation of title, but the bailee being in possession pledged them with the defendant, a pawnbroker, it is error for the court to charge that if the bailee’s agency was limited the defendant acquired no lien upon the property and that the plaintiff is entitled to recover.</p> <p>The defendant pawnbroker, having no knowledge of the limitation placed upon the bailee’s powers and he being in full possession of the jewels and the apparent owner thereof, was entitled to the protection of the Factors’ Act (Pers. Prop. Law, § 43).</p> <p>Hence, notwithstanding the limitation placed upon the bailee’s authority, where the defendant in good faith dealt with him in reliance upon his apparent ownership resting in possession, the defendant is not affected by the character of such possession of which he had no notice, actual or constructive.</p> <p>The expression “ upon the faith thereof,” contained in section 43 of the Personal Property Law, means upon the faith of the possession.</p> <p>It seems, that the rule might be different if the person pledging the jewels had obtained possession by a crime.</p>

Motion by the defendant, The Farish-Stafford Company, that the Appellate Division, Second Department, pass on the facts herein, or that it incorporate in its order a recital that it had not done so, also that plaintiff should be directed to include in the case on appeal herein, to the Court of Appeals, the opinion of the Appellate Division and the order made on this application, and further that plaintiff should be directed to make a case in the Court of Appeals to include…

<p>Injunction — unfair business competition — principal' and agent — soliciting customers of former employer.</p> <p>Suit to enjoin the defendants, a former employee of the plaintiff and his new employer, from soliciting through the employee any of the plaintiff’s former or present customers. The plaintiff was engaged in the laundry business and had employed one of the defendants to deliver laundry and collect payments. The defendant having been discharged and having .entered the employ of his codefendant, used the knowledge which he had obtained while working for the plaintiff to solicit the plaintiff’s customers to transfer their business to his new employer. On all the evidence,</p> <p>Held, that the defendant should be enjoined from soliciting through the plaintiff’s former employee or through any information obtained from him the plaintiff’s former or present customers of whom the employee had obtained knowledge while in the service of the plaintiff.</p>

Appeal by the defendants, Westchester County Brewing Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of December, 1914, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the defendant, Pennsylvania 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 Queens on the 15th day of April, 1915, upon the verdict of a jury for $20,000, 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.

Appeal by John T. Oates, contestant, from a decree of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 24th day of April, 1915, admitting to probate the will of Mary Oates, deceased.

Appeal by the defendant, Jane E. Duffy, individually and as executrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of October, 1915, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 20th day of October, 1915, denying appellant’s motion for a new trial made upon the minutes.

<p>Banks—savings bank—by-laws stating business hours—transaction of business at earlier hour pursuant to custom —when bank not liable to depositor who orders payment stopped.</p> <p>Although the by-laws of a savings bank state that it shall be open for business daily from ten A. M. to three P. M., it may make valid payment on checks of a depositor before said opening hour where it has been its custom to begin business at nine A. H.</p> <p>Hence, where the bank paid the check of a depositor shortly after nine o’clock it is not liable although the depositor subsequently appeared before ten o’clock and ordered payment stopped.</p>

Certiorari issued out of the Supreme Court and attested on the 15th day of March, 1915, directed to Arthur Woods, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.

Appeal by the defendant, Erie Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 16th day of March, 1915, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 26th day of August, 1915, denying defendant’s motion for a- new trial made upon the minutes.

Appeal by the defendant, Roswell E. Warren, individually and as sheriff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 7th day of January, 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 January, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Thomas E. Bombard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 20th day of September, 1915, upon the decision of the court after a trial at the Clinton Trial Term before the court without a jury.</p>

<p>Appeal by the plaintiff, Frank Bame, from an order of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 7th day of August, 1915, reversing a judgment of a justice of the peace of the town of Nassau, Rensselaer county, N. Y., in plaintiff’s favor.</p>

<p>Highways — action against town for damages — purpose of notice required by section 74 of Highway Law as to cause of action— sufficiency of notice.</p> <p>The purpose of the notice required by section 74 of the Highway Law before bringing an action against a town for damages is to fairly apprise the officers of the town of the nature and circumstances of the accident, so that they may investigate the same fully and intelligently, and with certainty as to the place and conditions of the accident.</p> <p>Such a notice, to the effect that on a certain date while the plaintiff was driving his horse to a certain place, and when he was about twenty-five rods below the foot of a certain hill in the town stated, the horse stepped through a hole in a sluice and broke her leg, making it necessary to shoot her, damaging the plaintiff to a certain sum, no part of which has ever been paid, is a substantial compliance with the statute.</p> <p>It seems, that the notice need not be framed with the same particularity as a complaint, and need not contain facts showing that the commissioner of highways was negligent, and that the plaintiff was free from negligence.</p>

<p>Judgment — execution—liability of sheriff for negligence in not promptly levying execution — burden of proof — duty of sheriff.</p> <p>In an action by a judgment creditor against a sheriff for negligence in failing to promptly levy an execution, the defendant has the burden of establishing that his negligence has not damaged plaintiff, and where it does not appear that he could not have collected the execution, or that if he had acted promptly he would have precipitated bankruptcy proceedings, he should be held liable for the amount which he was commanded to collect.</p> <p>Until a petition in bankruptcy is filed a diligent creditor has the right to insist on the advantages secured by his diligence and the facilities afforded by law for the collection of his execution, and the sheriff has no right to temporize with the. debtor on the theory that he mayor may not be solvent and that a certain course of procedure is just as advantageous to the creditor as the course which the law contemplated, especially where the creditor urges and insists that the sheriff proceed under the execution.</p> <p>Kellogg, P. J., and Lvov, J., dissented, with opinion.</p>

Appeal by the defendants, Richard H. Swartwout and others, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of April, 1915, overruling their demurrer to the complaint.

Appeal by E. W. Conklin & Son, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 28th day of June, 1915, granting compensation herein.

Appeal by the defendant, United States Zinc Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1915, upon the verdict of a jury, 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 the plaintiffs, Theresa Seagrist and others, from a resettled order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of January, 1916, directing them to reply to new matter contained in the supplemental answers of certain of the defendants; also an appeal from an order entered in said clerk’s office on the same day, denying their motion to bring in Jacob M. Dickinson as receiver…

<p>Appeal by the plaintiff, Leo L. D’Utassy, 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 July, 1915, overruling his demurrer to partial defenses set up in the answer.</p>

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

<p>Attorney and client —disbarment—conversion of property—drawing checks without deposit —jurisdiction of Appellate Division to discipline attorney for commission of crime prior to trial and conviction.</p> <p>Attorney at law disbarred for converting to his own use a diamond ring received for purpose of showing the same to a customer and for drawing a cheek upon a bank in which he had no account.</p> <p>The Appellate Division may, under section 88 of the Judiciary Law, as amended by chapter 720 of the Laws of 1913, discipline an attorney for the commission of acts constituting a crime, not growing out of his professional relations with the client, before trial and conviction for such crime.</p>

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

<p>Appeal by the defendant, Lawyers Title Insurance and Trust Company, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 5th 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 éth day of June, 1915, denying appellant’s motion for a new trial made upon the minutes.</p>

<p>Attorney at law — summary proceeding to compel payment of money wrongfully retained in professional capacity —jurisdiction of court over attorneys—worthless check and note given to client.</p> <p>The right of a client to maintain summary proceedings to compel an attorney at law to pay over moneys received in his professional capacity and wrongfully withheld is not affected by the fact that the attorney in settlement of the claim had given the client a worthless check and a promissory note which he failed to pay on maturity. Such worthless instruments did not change the relation of an attorney and client to that of a debtor and creditor so as to oust the court of its disciplinary jurisdiction over its attorneys.</p> <p>Power of court to compel attorneys to pay over by summary proceedings discussed, per Clarke, P. J.</p>

<p>Appeal by Bessie B. Johnston 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 25th day of September, 1915, construing the will herein and directing a distribution of the estate.</p>

<p>Public Service Commission—jurisdiction over real estate company operating passenger elevator on its own land.</p> <p>An elevator built by a real estate company on its own land in order to carry persons who live on its land and lots sold by it from one street to another, and which also carries any person who wishes to ride and who pays his fare, is not a “railroad” or a “common carrier” within the meaning of section 5 of the Public Service Commissions Law and the Public Service Commission has no jurisdiction over the real estate company or authority to regulate the rates of fare charged by it.</p>

<p>Sale of food for immediate consumption—implied warranty — liability</p> <p>of retail dealer.</p> <p>The sale of pork by a retail dealer for immediate consumption carries with it an implied warranty that it is sound and fit for use, and a purchaser who becomes infected with a parasite found in the pork and known as trichina may recover damages from the retail dealer although he was absolutely free from negligence and the pork was sold in the same form in which it was purchased and bore the United States government stamp to the effect that it was sound and fit for consumption and free from defects.</p>

<p>Sale — action for goods sold and delivered — pleading — defense — ■ demurrer — breach of warranty —notice to seller — counterclaim.</p> <p>Where in an action for goods sold and delivered, the answer, after denying allegations of the complaint as to the sale and delivery of the goods, alleges as a defense that the defendant had heretofore entered into an agreement whereby the plaintiff agreed to sell and deliver to defendant certain goods at an agreed price and warranted and represented them to be free from defects; that pursuant to said agreement plaintiff delivered the goods but they were not as represented in said original agreement and were not free from defects, and there is no allegation of any failure to deliver the goods set outfin the complaint, or that there was any warranty as to such goods which has not been fulfilled, a demurrer to the alleged defense should be sustained, because the fact that the defendant may have had some other transaction with the plaintiff in which the latter failed to perform is immaterial.</p> <p>'The provision of section 130 of the Personal Property Law, that if after the acceptance of goods a buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time the seller shall not be liable therefor, is a condition precedent and must foe pleaded.</p> <p>Hence, a counterclaim for damages for breach of warranty and failure to deliver goods which fails to allege the service of notice as required by section 130 of the Personal Property Law is insufficient.</p>

<p>Appeal by the defendants, Roland H. Russell 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 Delaware on the 4th day of March, 1915, upon the verdict of a jury for $1,500 and also from orders entered in said clerk’s office on the 20th and 25th days of February, 1915, denying defendants’ motions for a new trial.</p>

Appeal by the defendant, Jennie E. Matthews, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 30th day of January, 1915, upon the decision of the court after a trial at the Sullivan Special Term setting aside a satisfaction piece and granting other relief in an action for the foreclosure of a mortgage.

<p>Municipal corporations — liability of village of Saratoga Springs for negligence of park commissioner—accident resulting from tripping over wire —joint wrongdoers.</p> <p>Under chapter 366 of the Laws of 1912, amending the charter of the village of Saratoga Springs and giving to the park commissioner part of the authority over the surface within the street limits, which before was all in the sewer, water and street commissioners, an action for personal injuries sustained by tripping over a wire strung from six to fifteen inches high from a gate post to the corner of a grass plot within the limits of a street, based upon the negligence of the park commissioners may be maintained against the village, which is primarily liable.</p> <p>Even if the plaintiff could have established the liability of the sewer, water and street commissioners, or of an independent contractor, who was at the time in charge of the premises where the accident occurred, they would be merely joint wrongdoers with the park commissioner.</p>

Appeal by the defendant, The New York Central 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 Westchester on the 7th day of May, 1915, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 21st day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.

• Appeal by the City of New York from two orders 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 31st day of August, 1915, and the 15th day of October, 1915, respectively.

Appeal by the defendant, Cores-Martinez Company, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Tork on the 25th day of October, 1915, reversing a judgment of the City Court of the City of New Tork in favor of the defendant, entered upon a verdict directed by the court, and also reversing an order denying plaintiff’s motion for a new trial.

<p>Appeal by the defendant, General Film 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 26th day of April, 1915, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Bills and notes — foreign bill of exchange — liability of acceptors — alleged conditional acceptance — evidence — oral evidence of condition varying terms of written agreement — when transferee holder in due course—notice of alleged condition to transferror — delivery of draft with blank date — right of holder to fill in date — when error not available as against holder in due course.</p> <p>Action on drafts made by a foreign bank to its own order and accepted by the defendants and alleged to have been delivered in part payment of the defendants’ subscription to the capital stock of the bank. The defense stated that the acceptances of the defendants were conditional and that the drafts were not to become a binding obligation until the foreign bank should sell a certain amount of mortgage bonds issued by a corporation in which the defendants were interested. The written correspondence of the parties relating to the acceptance of the drafts by the defendants stated that the latter had purchased a certain amount of the foreign bank stock and had accepted the drafts in payment thereof, the same to be renewable up to a specified date. The writings made no mention whatever of the alleged fact that the acceptances were conditioned upon the sale of the bonds aforesaid.</p> <p>Held, that it was error to allow the defendants to give oral evidence as to said alleged condition, as it varied not only the terms of the drafts themselves but also the written agreement contained in the letters of the parties which stated the circumstances under which the drafts were made and accepted.</p> <p>Held, further, that the evidence showed that the defendants bought the bank stock without condition, and that a verdict should have been directed for the plaintiff.</p> <p>The plaintiff was a holder in due course and entitled to enforce the drafts against the acceptors, although they stated to the plaintiff’s transferror the alleged condition as to the sale of bonds. This, because such information would at most require the transferror to inquire of the foreign bank as to the transaction, and had he done so he would have learned that they were free from the condition claimed by the defendants.</p> <p>Although the agreement entitled the acceptors to renewals of the drafts up to a certain date and the drafts were delivered with the date left blank, the bank was entitled to fill in the due date so as to make the drafts payable after the date of the rights to renewals ceased.</p> <p>In any event, the plaintiff as an innocent holder for value is protected against any irregularity in filling in the date by section 33 of the Negotiable Instruments Law.</p>

<p>Ejectment — plaintiff must have legal title — equitable title insufficient — will — equitable conversion created by power of sale — when legal title of trustee does not pass to administrator with will annexed.</p> <p>An equitable title will not support an action of ejectment; the plaintiff must have legal title and must prove that he has an estate in fee, or for life, or for a term of years.</p> <p>There can be no judgment for the plaintiff in an action of ejectment where he neither alleges nor proves the facts aforesaid.</p> <p>Where a testatrix devises lands to executors upon the trust to invest and reinvest and pay the income to a life beneficiary with remainders over, and gives to the executors a full power of sale and the court has held the same to work an equitable conversion so that the lands are to be treated as personal property, an administrator with the will annexed appointed after the death of the executor does not take his legal title, but merely the power of sale. On the death of the executor the legal title vested in the Supreme Court, which had power to appoint a person to execute the trust, and hence the administrator with the will annexed cannot . maintain an action of ejectment.</p> <p>A devise to executors in trust makes them trustees of an express trust, although they are not designated as such.</p>

<p> Bills and notes—waiver of notice. </p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 13th day of May, 1915, denying a motion for discovery and inspection of books and papers.</p>

<p>Appeal from an order of the Appellate Term, entered in the New York county clerk’s office on the 6th day of May, 1915, affirming an order of the City Court holding the defendant in contempt of court, and affirming an order of said court denying a motion to vacate a judgment.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 6th day of April, 1915, upon a verdict, and also from an order entered on the same day denying a motion for a new trial.</p>

<p>Appeal — inserting part of summing up in appeal booh.</p>

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

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 16th day of August, 1915, denying a motion to vacate an order for the examination of defendant’s president before trial.</p>

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

Charges presented by the Association of the Bar of the City of New York against respondent, an attorney of this court, for professional misconduct.

<p>Appeal from a judgment of the County Court of Bronx county, entered in the Bronx county clerk’s office on the 38th day of January, 1915, on a verdict, and also from an order entered on the 33d day of January, 1915, denying a motion for a new trial.</p>

Appeal by all parties from a judgment of the Supreme Court, entered in the New York county clerk’s office after a trial at Special Term.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 12th day of January, 1915, upon the verdict of a jury, and also from an order entered on the same day denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 24th day of May, 1915, dismissing the complaint at Trial Term.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 7th day of July, 1915, upon the verdict of a jury, and also from an order entered on the 99th day of June, 1915, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 8th day of April, 1915, on a verdict, and also from an order entered on the 19th day of April, 1915, denying a motion for new trial.</p>

<p>Appeal from an order of the Appellate Term, entered in the New York county clerk’s office, affirming a judgment of the Municipal Court.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 8th day of July, 1915, upon a decision rendered after a trial at Special Term.</p>

<p>Appeal from ajudgmentof the Supreme Court, entered in the New York county clerk’s office on the 10th day of February, 1915, on the verdict of a jury, and also from an order entered on the 18th day of February, 1915, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 14th day of January, 1915, dismissing the complaint after a trial at Trial Term.</p>

<p>Appeal from an order of the Surrogate’s Court of the county of New York, entered on the 19th day of April, 1915, modifying an order assessing a transfer tax.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 26 th day of March, 1915, upon the verdict of a jury, and also from an order entered on the 31st day of March, 1915, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 15th day of March, 1915, upon a verdict, and also from an order entered on the 22d day of March, 1915, denying a motion for a new trial.</p>

<p>Corporation—representative action — waste.</p>

<p>Appeal from an order of the Supreme Court granting the defendants’ motion for judgment on the pleadings.</p>

<p> Will—bequest to employees—who entitled to take. </p>

Cross appeals from portions of an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of August, 1915.

Appeal by the defendant from two judgments of the Supreme Court, both entered in the office of the clerk of the county of Richmond on the 18th day of February, 1915, in favor of the plaintiffs, and from orders denying- its motions for a new trial, entered in said clerk’s office on said date.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 3d day of May, 1915, in favor of the defendant upon a dismissal of the complaint.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 30th day of October, 1915, granting a motion to modify an order directing the issuance of an execution against defendant’s wages upon a judgment recovered against him by plaintiffs.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 39th day of March, 1915, upon the verdict of a jury, and also from an order entered on the 39th day of March, 1915, denying a motion for a new trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 18th day of Hovember, 1915, granting defendant’s motion for leave to serve an amended answer.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Hew York county clerk’s office on the 8th day of April, 1915, dismissing the complaint at Trial Term.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Bronx county clerk’s office on the 16th day of June, 1915, on a verdict, and also from an order entered on the 31st day of June, 1915, denying a motion for a new trial.</p>

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

<p>Appeal from a judgment, entered on the 9th day of February, 1914, dismissing the complaint at the close of the plaintiff’s ease upon a trial at Trial Term.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 16th day of June, 1915, setting aside a verdict and granting a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 39th day of April, 1915, upon the verdict of a jury, and also from an order entered on the 7th day of April, 1915, denying a motion for a new trial.</p>

<p>Appeal from a judgment, dismissing the complaint at Trial Term on the opening of counsel.</p>

<p>Appeal from a judgment, entered upon a verdict and also from an order denying a motion for a new trial.</p>

<p>Appeal from judgments of the Supreme Court, entered in the Few York county clerk’s office on the 16th day of February, 1915, dismissing complaints after a trial at Trial Term.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 10th day of November, 1915, denying a motion for the continuance of a temporary injunction pendente lite.</p>

Appeal by the executors from an order of the Supreme Court, entered in the New York county clerk’s office on the 3d day of March, 1915, quashing a writ of certiorari to review a tax assessment; and by defendants from so much of said order as fails to award costs, and also from an order denying motion to resettle order.

Knapp, from interfering with the possession of said receiver; and also from an order made on the 25th day of August, 1915, denying a motion for reargument.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 27th day of October, 1915, denying the defendant’s motion for a bill of particulars.</p>

<p> Practice—striking out complaint. </p>

<p>Appeal from an order of the Supreme Court, entered in the Wew York county clerk’s office on the 36th day of February, 1915, granting a motion for a bill of particulars.</p>

<p> Practice—striking out complaint. </p>

<p>Appeal from a judgment, entered upon a verdict, and also from order denying motion for new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 14th day of December, 1914, on a verdict, and also from an order entered on the 16th day of December, 1914, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 10th day of February, 1915, upon the verdict of a jury, and also from an order entered on the 5th day of February, 1915, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 28th day of December, 1914, upon a verdict, and also from an order entered on the same day denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 19th day of January, 1915, dismissing the complaint at the close of the plaintiff’s case upon a trial at Trial Term.</p>

<p>Appeal by plaintiff from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York August 9, 1915, upon a decision of the court sustaining separate demurrers to the complaint.</p> <p>Judgment affirmed, with costs, on opinion of Page, J., with leave to plaintiff to amend on payment of costs. Present—Ingraham, P. J., McLaughlin, Laughlin, Scott and Dowling, JJ.</p>

<p>Master and servant — injury to hand — authority of attorney to hind client.</p>

<p> Master and servant— loss of part of finger. </p>

Appeal by the defendant from an order of the Supreme Court, made at the Broome Special Term and entered in the Broome county clerk’s office on the 12th day of March, 1915, requiring an examination of two of its officers before trial and an examination of one Rover, plaintiff’s electrical expert, at the defendant’s plant, and he, the plaintiff’s counsel and the referee to be permitted to make an examination of the plant.

Appeal by the plaintiff, Buell G. Davis, as executor, etc., from a judgment of the Supreme Court, entered May 30, 1914, in the office of the clerk of the county of Kings after a trial at a Special Term of said court for the county of Kings dismissing plaintiff’s complaint upon the merits. The appeal herein was, by order of the Appellate Division, Second Department, sent to the Appellate Division, Fourth Department, to be there heard and determined. (See 168 App. Div. 960.)

Motion by the plaintiff for reargument or for leave to appeal to the Court of Appeals after a nonsuit granted at the Monroe Trial Term on the 16th day of October, 1913.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 9th day of September, 1913, which said judgment was resettled by an order theretofore made in the Supreme Court, entered in said clerk’s office on the 9th day of October, 1913, in favor of the defendant and against plaintiff, dismissing the complaint and awarding the defendant the sum of eighty-six dollars and seventy cents costs and disbursements;…

<p>Appeal from an order of the Supreme Court, entered in the Oswego county clerk’s office on the 26th day of May, 1915, denying defendant’s motion for a new trial.</p>

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff for $2,937.30 damages and costs, entered June 3,1913, in the office of the clerk of the county of Cayuga, upon the verdict of a jury, and also from an order entered June 7,1913, denying the defendant’s motion to set aside the verdict and for a new trial. •