Volume 172 — New York Appellate Division Reports

Appeal by the defendants, William C. Amend and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of October, 1915, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, M. Edward Kelley, from a determination and judgment 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 3d day of November, 1915, reversing a judgment of the Municipal Court of the City of New York, borough of Manhattan, ninth district, in plaintiff’s favor and dismissing the complaint.</p>

<p>Principal and agent—broker’s actions for commissions — lease not negotiated by plaintiff.</p> <p>It seems, that a real estate broker may recover commissions upon the rental reserved in a lease procured by him although the lease has not been actually executed by the parties, if they have made a valid and binding agreement to make it.</p> <p>But such broker is not entitled to commissions where he was employed to procure a lease of a particular parcel of land, if the defendants finally leased other lands and the broker had nothing to do with the transaction.</p>

<p>Trial — burden of proof — issues raised by defenses — erroneous charge — practice —• new trial — failure to take exception.</p> <p>Where a defendant sued for the balance of the purchase price of a business and the good will thereof pleads as a defense and counterclaim that the purchase was induced by false and fraudulent representations of the plaintiff as to the previous profits of the business and also pleads the breach of an alleged agreement whereby the plaintiff was not to engage in a similar business in the locality for a stated period, and seeks to recover an alleged forfeiture agreed upon, it is error for the court to instruct the jury that the burden of proof as to the controverted facts is on the plaintiff when the only issues of fact are those relating to said defenses.</p> <p>Where a case has been submitted to a jury on an erroneous theory and the ends of justice require a new trial, it may be granted by the Appellate Division even though no exception to the error was taken at trial.</p>

Appeal by the Beaber Tailoring 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 25th day of January, 1916, granting the application herein and appointing a receiver of appellant’s property for the benefit of the creditors of Philip Friedman.

<p>Banks —transmission of money to foreign country by cable — delay in payment not caused by negligence of transmitting bank — when bank accepting order not liable for difference in rate of exchange — nature of cable transfers of money.</p> <p>Where a domestic banking corporation engaged in the sale of foreign exchange accepted the plaintiff’s order to transmit to a person in Italy a certain number of lire at the current rate of exchange on that day, it being agreed that the bank should not be liable for damages caused by delay, and, having received the current value of the foreign money from the plaintiff, cabled on the same day to its correspondent in Italy with which it had a sufficient balance to make the agreed payment, but by reason of circumstances over which the defendant had no control the payment was not made on the receipt of the order and was delayed for' over two weeks, during which.period the rate of exchange varied so as to be more favorable to the plaintiff, the latter is not entitled to recover as damages for the delay the difference between the market values of the transfer on the dates of the original order and the actual payment.</p> <p>By accepting an order to transfer money by cable the defendant did not contract to transmit the identical money paid to it by plaintiff, so that it does not come under the rule governing the liability of a carrier who receives merchandise for transmission.</p>

<p>Appeal by the defendant, Siegel, Cooper & Company, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Mechanics and Metals National Bank of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1916, denying defendant’s motion to compel plaintiff to reply to the first defense pleaded in the answer.

Appeal by the defendant, Lehigh Valley 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 Cortland on the 15th day of April, 1915, upon the verdict of a jury for $é,500, and also from an order entered in said clerk’s office on the 12th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Brown Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of July, 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 plaintiff, Francesco Di Tommaso, from so much of an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 21st day of October, 1915, as orders and directs plaintiff to pay to defendant a trial fee of thirty dollars, and to pay defendant’s witness fees, as resettled by an order entered in said clerk’s office on the 20th day of December, 1915.

<p>Municipal corporations—action against city of second class for injuries sustained while passing over crosswalk covered with ice—Second Class Cities Daw, section 244, providing for notice to commissioner of public works, construed—when notice not necessary — question for jury.</p> <p>In an action against the city of' Syracuse, a city of the second class, for personal injuries sustained while attempting to pass over a crosswalk, because of the walk being covered with loose pieces of snow and ice, which employees of the department of public works had left after chopping and loosening the ice from the walk, section 244 of the Second Class Cities Law, providing for notice to the commissioner of public works prior to commencement of the action, applies and not the city charter.</p> <p>In such a case the question whether the city was negligent through its employees in the department of public works in breaking into pieces the snow .and ice on the crosswalk and leaving it in such a condition as to be likely to cause injury to pedestrians, is for a jury.</p> <p>Section 244 of the Second Class Cities Law, providing that no civil action shall be maintained against a city for injuries sustained in consequence of a crosswalk being defective or unsafe, unless it appear that written notice of the defective condition had been given to the commissioner of public works, does not apply where the dangerous condition is produced by the city itself through its employees in the department of public works.</p>

<p>Trial — separate trial of one or more issues —right to trial by jury.</p> <p>The power of the court under section 973 of the Code of Civil Procedure to order one or more issues to be separately tried prior to trial of the other issues, rests in the legal discretion of the court.</p> <p>A plaintiff by bringing an action for negligence, demanding a judgment for a sum of money, acquires the right under the Constitution and under section 968 of the Code of Civil Procedure, to a jury trial of every issue of fact, and if a separate trial is granted of an affirmative defense . as to the execution and delivery of a release from liability executed by the plaintiff, it must be had before a jury.</p> <p>Tí seems, that the usual negligence case does not ordinarily present a situation calling for a separate trial of one or more of the issues therein.</p>

Appeal by the defendant, The City of Utica, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 29th day of May, 1915, upon the verdict of a jury for $1,500, rendered after a trial at the Oneida Trial Term.

Appeal by the plaintiff, Louis Sherry, 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 26 th day of April, 1915, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 23d day of April, 1915, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Soraci Contracting Company, 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 19th day of Hay, 1915, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 2d day of June, 1915, denying the appellant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John W. Williams, Inc., from a judgment of the Court of Special Sessions of the City of New York, county of New York, rendered against it on the 4th day of January, 1915, convicting it of a violation of section 42 of the Sanitary Code of the department of health of the city of New York.

<p>Municipal corporations — permit for restriction or alteration of roof signs invalidated by subsequent ordinance — constitutional law — police power — vested rights.</p> <p>The board of aldermen of the city of New York may, in the exercise of the police power, pass an ordinance restricting the height and construction of roof signs, even though it may revoke permits previously granted to owners or lessees of buildings who have made expenditures in connection with the alteration of signs pursuant to the permit.</p> <p>Expenditures by the holder of the permit for alterations prior to the enactment of the ordinance do not constitute vested rights so as to render the ordinance unconstitutional.</p>

<p>Bills and notes — liability of maker of incomplete instrument subsequently stolen and completed without authority — estoppel- of maker from claiming no delivery — presumption of delivery — appeal — erroneous dismissal of complaint by Appellate Term — effect of erroneous direction of verdict by trial court.</p> <p>Where several promissory notes are stolen from the possession of the maker while incomplete as to date, payee and amount, there being no negligence on his part, and where they have never been delivered by him and have been completed without his authority, they are invalid and unenforeible under section 34 of the Negotiable Instruments Law, although in the possession of an innocent holder for value.</p> <p>Section 35 of the Negotiable Instruments Law, relating to presumption of delivery, applies only to completed instruments and should be construed in connection with section 34 which deals with incomplete instruments.</p> <p>The signing of blank promissory notes and leaving them on the desk in an office is not negligence sufficient to estop the maker from claiming that there was no delivery.</p> <p>Where, in an action on a promissory note, the only question before the trial court was the legal sufficiency of the defense, and the plaintiff’s motion for a directed verdict was granted, and the only question on appeal to the Appellate Term was the correctness of the ruling of the trial court on the sufficiency of the defense, it was improper for the Appellate Term in reversing the judgment of the trial court to dismiss the complaint, because had the trial court denied plaintiff’s motion fora directed verdict, plaintiff would have been entitled to rebut the evidence in defense and he has not lost that right because of the erroneous decision of the trial court.</p>

Appeal by the defendant, The Royal Company of New York, from so much of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 8th day of July, 1915, upon the decision of the court after a trial at the New York Special Term,’ as adjudges that its claim is subordinate to liens filed herein by the plaintiff and the defendant Fredenburg & Lounsbury.

<p>Tax — failure to affix county seal to warrant — when tax deeds should he canceled as void — Tax Law, section 132, construed—constitutional law — curative statute — vested rights.</p> <p>A tax warrant and a sale thereunder are void where the warrant issued to the receiver of taxes was not under the seal of the county as required by law.</p> <p>For such jurisdictional defect a tax deed may be canceled within five years after the redemption period.</p> <p>The said right to the cancellation of tax deed for jurisdictional defects is not affected by section 133 of the Tax Law creating the presumption of the regularity of a tax sale where the deeds have been recorded for two years.</p> <p>A subsequent statute designed to cure the omission of the county seal from the warrant did not take away rights of the owner previously vested.</p> <p>Carr, J., and Jerks, P. J., dissented, with memorandum.</p>

Appeal by the defendant, Doubleday, Page & Company, from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 6th 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 31st day of July, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Real property — vendor and purchaser—when party wall agreement does not constitute an incumbrance or defect in title — breach by vendee of contract to purchase — measure of damages.</p> <p>A party wall agreement contemplating an extension at once of an existing wall, does not create a privity of estate or constitute an incumbrance upon the land, preventing the conveyance of a good title, but at most is a personal contract.</p> <p>The measure of damages for the breach by a vendee of a contract to purchase real property is the difference between the contract price and the market value of the property at the time of the breach less any portion of the purchase price already paid.</p> <p>Taxes, broker’s commission and interest paid or accrued after the breach by a vendee of a contract to purchase real property do not constitute damages occasioned by such breach for which the vendor is liable.</p>

Appeal by the defendant, Michele Ogoglia, 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 30th day of November, 1915, denying his motion for judgment on the pleadings and overruling his demurrer to the amended complaint.

Appeal by the defendant, Gertrude Gilmour, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 21st day of August, 191-1, upon the decision of the court after a trial at the Westchester Special Term. The action was brought to foreclose a mechanic’s lien and judgment was rendered in favor of the plaintiff and certain of the defendants for $3,272.19.

Appeal by the defendant, William B. Weeks, from a judgment of the Court of Special Sessions of the City of New York, borough of Brooklyn, county of Kings, rendered against him on the 1st day of October, 1914, convicting him of violating section 1530 of the Penal Law and fining him $100.

<p>Certiorari issued out of the Supreme Court and attested on the 23d day of October, 1915, directed to Arthur Woods, commissioner of police 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 his position in the police department in the city of New York upon charges of neglect of duty, violation of rules of the department and conduct unbecoming an officer.</p>

Appeal by Trustees of Columbia University in the City of New York and others from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 1st day of March, 1916, denying a motion to transfer the issues in this contested probate proceeding from the Surrogate’s Court to the Supreme Court, except from such part of the order as stays all proceedings pending this appeal.

Appeal by the petitioner, New York Railways 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 5th day of January, 1916, as resettled by an order entered in said clerk’s office on the 13th day of January, 1916, denying its motion for a writ of mandamus.

Appeal by the defendant, Vaughan Glaser, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of October, 1915, denying defendant’s motion for anew trial made upon the minutes.

Appeal by the plaintiff, Seaboard National Bank, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 1st day of February, 1916, denying its motion for a stay of proceedings.

Appeal by Hinds, Noble & Eldredge 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 January, 1916, denying its application to change its corporate name.

Appeal by the defendant, Hencken & Willenbrock Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of October, 1915, upon the verdict of a jury for $150, 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 defendant, Henry G. Hay, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of February, 1916, granting the plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the plaintiff, C. A. Smith 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 New York on the 7th day of December, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the plaintiff, Kern Horse Remedy Co., Inc., 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 February, 1916, denying its motion for an injunction pendente lite.

Appeal by Benjamin B. Odell, Jr., as receiver, 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 February, 1916, denying his motion to vacate an order of the Special Term dated October 5, 1915, continuing and extending the lien of the respondent herein, filed with the comptroller of the city of New York January 12, 1915.

Appeal by the defendants, Carnegie Trust Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of December, 1915, upon the decision of the court after a trial at the New York Special Term.

<p>Contract — compensation for services rendered on formation of corporation — agreement to give stock for services rendered — evidence — nature of services rendered as establishing terms of contract — written memorandum not embodying complete agreement — erroneous charge — when terms of contract for jury — attorney and client — • evidence — contract of retainer.</p> <p>Where, in an action for breach of contract for services rendered in connection with the formation of a corporation, the plaintiff contends that he was to receive for his services fifty shares of stock and an additional fifty shares when the business of the corporation should become profitable, but the defendant contends that the plaintiff’s compensation was limited to fifty shares only which has been given to him, it is error for the court to refuse to allow the plaintiff to show conversations between himself and the defendant bearing upon the amount of the compensation, and also evidence as to the character, extent and value of the services rendered by him, as such evidence bears upon the probable extent of his compensation.</p> <p>It was also error for the court to charge that a memorandum of agreement made in the handwriting of the plaintiff, but signed by the defendant only, constituted the contract between them where the plaintiff has testified that he refused to sign the memorandum because it did not contain the whole agreement. Under the circumstances it was for the jury, not for the court, to say whether the paper became a binding contract when signed by the defendant.</p> <p>The rule that the law requires the utmost good faith on the part of the attorney in dealing with his client applies where the attorney is seeking to enforce the contract, and it is a question whether the terms are such as ought to be enforced, but the rule does not apply where the attorney is seeking to establish the existence of the contract.</p> <p>McLaughlin and Dowling, JJ., dissented.</p>

<p>Libel — slander — sufficiency of complaint —test of sufficiency — damages.</p> <p>A complaint in the first count alleged a cause of action for slander, and in the second one for libel for publishing the utterances complained of as slanderous, but with appropriate innuendoes charging that the words were used in a sense specified which would make them libelous per se. The article charged, among other things, that the plaintiff followed the defendant and her daughter to a certain place, and that “ when he had left, a diamond pin she had was gone,” and, together with appropriate innuendoes, it may have been understood by readers of ordinary intelligence that the plaintiff stole the pin, and a demurrer to the first cause of action should be overruled.</p> <p>Where special damages are not alleged, no damages are recoverable, unless the article is libelous per se.</p> <p>In such a case, the test of the sufficiency of the complaint is whether the article is libelous per se without any innuendo, or is susceptible of a meaning ascribed by innuendo, which would render it libelous per se, and in the latter case it is for the jury to determine whether the words were used and would be understood by readers of average intelligence in the libelous sense.</p>

<p>Application upon charges against the respondent, an attorney and counselor at law, for professional misconduct.</p>

<p>Attorney at law disbarred — fraud and false representations inducing purchase of property at excessive value.</p> <p>Attorney at law disbarred for fraud and misrepresentations or knowledge thereof, resulting in the purchase of property belonging to him at a price greatly in excess of its value, although he was under no professional obligation to the purchaser.</p>

Appeal by the defendants, Samuel Adams 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 29th day of October, 1915, denying their motion for judgment on the pleadings, consisting of a complaint, amended answer and reply.

<p>Appeal by the defendants, Samuel Adams 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 29th day of October, 1915, denying their motion for judgment on the pleadings consisting of a complaint, amended answer and reply.</p>

<p>Principal and agent —liability of general agent of surety company for misapplication and conversion of trust funds — remedy against both principal and agent — evidence.</p> <p>Where a general agent of a surety company mingles trust funds placed in his possession in an account containing a general fund of the company and also an individual fund from which he drew for his personal use, and the trust funds have been so intermingled with the joint fund that they cannot be identified, the agent, as well as his principal, is liable for misfeasance and misappropriation. His wrongful act is a breach of duty owing to the eestui que trust for which he may be held personally liable.</p> <p>When the agent received the trust funds, it was not only the duty of his principal, but his own duty, to keep them separate and distinct, not only from the general funds of the company, but also from his individual funds.</p> <p>In an action against such a general agent to recover trust funds alleged to have been misapplied and converted to his own use, evidence of an agreement between him and the surety company whereby he was allowed to draw from the account in which the trust funds had been deposited for any purpose he might choose, up to the amount of his commissions, and that the balance was to be paid over to the surety company, is inadmissible, it appearing that the account was clearly a personal one, kept by permission of the surety company.</p> <p>Where a principal and agent are both liable, it is no answer to either one that there is a claim against the other.</p> <p>Laughliit and Scott, J J., dissented, with opinion.</p>

<p>Real property — vendor and purchaser — specific performance—marketability of title — restrictive covenant — submission of controversy.</p> <p>A private contract to purchase land will not be enforced by specific performance unless the title is marketable.</p> <p>A title subject to restrictive covenants, which imposes greater restrictions on the use of the land than those imposed by law, renders the title unmarketable, and the court will not in such a case inquire into the question whether the restrictions are beneficial or otherwise.</p> <p>Hence, upon the submission of a controversy as to whether a grantor’s title is marketable because of a restrictive covenant in a deed forming a part of the chain of title, the question as to whether or not such cove nant is now enforcible cannot be decided, and where such covenant is found to exist, the title will be held to be unmarketable, although from the changed conditions it may no longer be enforcible.</p>

Appeal by the defendant, Gottlieb J. Keller, 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 December, 1915, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 6th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, J. M.. Horton Ice Cream 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 10th day of December, 1915, upon the verdict of a jury for $4,500 and also from an order entered in said clerk’s office on the 16th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporations — right of ’ county officers to compel performance of duties by mandamus—petition by county clerk to compel comptroller to certify and audit payroll.</p> <p>County officers may bring mandamus tó compel the performance of duties over which they have supervision or performance of which is necessary to the performance of their own duties.</p> <p>The county clerk of the county of New York is not entitled to a peremptory writ of mandamus to compel the comptroller of the city of New York to certify and audit salaries of certain employees in his office, where the county clerk’s duty ends with his own certification and transmission of the payroll to the comptroller, and he has no supervision of the audit and certification thereof, and it is not claimed that he is prevented from performing any duty of his office by the failure of the comptroller to audit and certify the payroll.</p> <p>The employees whose salaries have not been certified, not being parties to the proceeding by the county clerk, are not concluded by an adjudication therein.</p>

Appeal by the plaintiffs, Barnett L. Hollander and another, 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 8th day of December, 1914, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case.

Appeal by the defendant, Monarch Engineering Company, 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 18th day of December, 1915, sustaining plaintiff’s demurrer to the second defense pleaded in the answer, and also from the interlocutory judgment entered in said clerk’s office on the same day, sustaining the demurrer pursuant to said order.

Appeal by the defendant, The City of Syracuse, 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 29th day of December, 1915, upon the decision of the court after a trial at the Onondaga Special Term, with notice of an intention to bring up for review all questions of law and fact in the action as well as the several findings made by the court.

Appeal by the defendant, the Standard Oil Company of New York, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Wayne on the 22d day of December, 1915, denying defendant’s motion for judgment on the pleadings after an amended answer had been interposed to the complaint. The opinion rendered at Special Term is reported in Loucks v. Standard Oil Co. (92 Misc. Rep. 475).

<p>Municipal corporations — power of commissioner of docks over Exterior street, city of Mew York — charter construed — power of dock commissioner to license construction and maintenance of conduits and coal conveyers under and over said street — injunction.</p> <p>Section 819 of the charter of the city of New York confers upon the commissioner of docks jurisdiction over the full width of Exterior street from the inner boundary thereof to the East river, and empowers said commissioner to regulate the transfer of goods or merchandise upon, over or under said street.</p> <p>Hence, where said commissioner of docks licensed the Manhattan Railway Company to construct and maintain intake and discharge pipes from and to the river under said street to obtain condensing water for use in its power house situated on Exterior street, and also licensed said company to maintain a coal conveyer over said street, it is entitled to an injunction restraining the borough president from removing or interfering with said structures.</p> <p>Page, J., and Clarke, P. J., dissented, with opinion.</p>

Appeal by the defendant, Norman Farquhar, 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 28tli day of October, 1915, upon the decision of the court after a trial at the New York Special Term.

<p>Cross-appeals by the plaintiff, Charles V. Barker, and by the defendants Maud Archer and others, from, an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Kings on the 21st day of April, 1915, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The plaintiff and the defendants Clifford J. Barker, Ethel B. Miller and Maud Archer appeal, among other things, from the provision of said judgment which decrees that the defendant Beatrice Arabelle Barker has an interest in the real property involved in this action. The defendant Samuel P. Barker, Jr., appeals from the whole of said' interlocutory judgment. The defendant Beatrice Arabelle Barker appeals, among other things, from the provision of said judgment which decrees that the defendants Pauline May and Nathan Levy, as executors, are entitled to have a lien on certain of the property described, and that the share of the plaintiff in the premises is a one-half interest. She also gives notice of an intention to bring up for review an order herein, entered in the office of the clerk of the county of Kings on the Yth day of January, 1915, denying her motion to set aside the verdict of a jury made at Trial Term, pursuant to the direction of the court on a special issue framed herein.</p>

Appeal by the plaintiff, Edward Cantanno, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 28th day of September, 1915, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Cross-appeals by the plaintiff, Edward H. Mount, as administrator, and the defendant Erederika B. Harris, individually and as administratrix and trustee, from a judgment of the Supreme Court construing the will of Benjamin Griffin, deceased, entered in the office of the clerk of the county of Queens on the 31st day of August, 1915, upon the decision of the court after a trial at the Queens County Special Term.

Appeals by the plaintiffs in each case, Charles Aber Dedrick and another, Harry A. Quackenbush and another, and Samuel G-. McDonald, from orders of the County Court of Orange county, entered in the office of the clerk of said county on the 9th day of March, 1916, overruling defendant’s demurrers to the complaints in each case.

Appeal by the defendants, John H. Meahl and others, from orders of the Supreme Court, one in each case, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 25th day of January, 1916, and the 27th day of January, 1916, respectively; in the first case the order vacated and annulled an order which vacated a preliminary injunction herein and reinstated said injunction in full force and effect from the time of its date and service,…

Appeal by the defendant James W. Walsh, in the first and second actions, and by the defendants Laurence Eosenthal and another, in the third and fourth actions, from so much of an order of the Supreme Court, made at the Erie Criminal Term and entered in the office of the clerk of the county of Erie on the 20th day of December, 1915, as directs that the cases of the defendants be resubmitted to the next grand jury of Erie county for its action after the indictments had been…

Appeal by the plaintiff, James Boy Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 1st day of May, 1914, upon the decision of the court dismissing the complaint, a jury having been waived. The action is brought to recover for the use and occupation of certain premises.

<p>Appeal by Andrew Armstrong, petitioner, from part of an order of the county judge of Albany county, entered in the office of the clerk of said county on the 4th day of November, 1915, dismissing an application to remove the name of the respondent and another from the registry list in a proceeding under section 153 of the Election Law (Oonsol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1913, chap. 820).</p>

Appeal by Andrew Armstrong from part of an order of the county judge of Albany county, entered in the office of the clerk of said county on the 4th day of November, 1915, dismissing this proceeding, which was taken under section 153 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1913, chap. 820).

Appeal by the defendant, Oarrie J. Crawford, individually and as administratrix, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schuyler on the 24th day of February, 1915, upon the decision of the court, a jury having been waived. The judgment set aside as fraudulent a certain conveyance of real , estate.

Appeal by the plaintiff, Merritt Hull, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Broome on the 30th day of December, 1915, upon the decision of the court overruling plaintiff’s demurrer to the answers of the respondents and dismissing the complaint.

<p>Motor vehicles — death caused by chauffeur using automobile during absence of master — proof not justifying recovery—evidence—failure of master to deny alleged statements made by chauffeur — charge approved —use of automobile by chauffeur for private purposes.</p> <p>Action to recover for the death of a person tilled by a motor car which was operated by the alleged chauffeur of the defendant during the latter’s absence in Europe. Evidence examined, and held, that a judgment for the defendant rendered upon the verdict of a jury should be affirmed.</p> <p>In such action it is not error for the court to exclude testimony of a person who had talked with the defendant’s chauffeur shortly after the accident, to the effect that said person reported to the defendant, after he returned to this country, the chauffeur’s statement that at the time of the accident he had taken the car out to test it, and that the defendant made no comment on such statement. This, because the failure of the defendant to Answer the statement was not an admission of any fact pertinent to the issue.</p> <p>It is not error for the court to refuse to charge as requested where it has already charged fully and fairly upon the subject.</p> <p>In such action it is not error to charge in substance that if the jury find that the chauffeur took the car from the garage with the primary object of bringing some money to his wife he was not engaged in his employer’s business.</p> <p>Where the primary object of the chauffeur in taking the car from the garage was his own business or pleasure and the accident occurred when he was returning from a visit to his wife, the accident did not happen while he was acting within the scope of his employment, even though he claimed to be testing the car after repairs. The test was merely incidental to the unauthorized use of the car and would not justify a finding that the master is liable.</p>

Appeal by the defendant, Rodgers & Hagerty, Inc., 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 18th day of May, 1915, upon the verdict of a jury for $1,140, 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 defendant, The Prince 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 Kings 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 same day denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiffs, James A. McNelus and another, 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 18th day of November, 1915, upon a dismissal of the complaint by direction of the court at the close of the case.</p>

Appeal by the plaintiff, William P. Sheridan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 12th day of November, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the plaintiff, Carmela Binando, as administratrix, from three judgments of the Supreme Court in favor of the respective defendants, entered in the office of the clerk of the county of New York on the 12th day of November, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order entered in said clerk’s office on the 4th day of December, 1914, pursuant to which the judgments were entered.</p>

Appeal by the petitioner, the Public Service Commission for the First District, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1915, denying its application for a writ of mandamus to compel the respondent to obey an order made by the Commission and dismissing the proceeding.

Appeal by the defendant, Sidney Blümenthal & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, The Northern Bank of New York and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of January, 1915, upon a decision of the court after a trial at the New York Special Term. The judgment dismissed the complaint and decreed that certain bonds and mortgages are the property of the defendant and directed that they be delivered up to it.

Appeal by the defendant, Philadelphia and Reading Coal and Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 4th 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 or about the same day, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Ann Cheever, 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 2d day of August, 1915, upon the decision of the court after a trial at the New York Special Term construing the will of John D. Cheever, deceased.</p>

Appeal by the defendants, Renwick Park and Traffic Association and another, from parts of a judgment of the Supreme Court in favor of the plaintiffs and certain of the defendants, entered in the office of the clerk of the county of Tompkins nunc pro tunc as of the 29th day of December, 1914.

Appeal by the defendant, Munn Piano 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 27th day of October, 1915, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of October, 1915, denying defendant’s motion for a new trial made upon the minutes. •

<p>Appeal by the plaintiff, Nancy McNett, 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 Columbia on the 9th day of November, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Workmen’s Compensation Law —failure of employee to give written notice of injury — finding that employer not prejudiced binding on appeal.</p> <p>Where, on the hearing before the State Industrial Commission of a claim for compensation to an employee, the evidence is that claimant immediately after receiving an injury to his right eye while at work, went to his own physician and was treated; that the next day he told one of his employer’s physicians engaged to attend any employee injured by accident, showing him the eye; that said physician saw claimant right along, and nineteen days after the accident made a full report as to the injury, a finding that the employer was not prejudiced by the failure of claimant to give written notice as required by the statute within ten days from the date of disability, was justified and binding on appeal.</p>

<p>Corporations — syndicate agreement — right of syndicate managers to recover subscriptions under Code Civil Procedure, § 449 — when error, if any, in reception of evidence removed by charge of the court.</p> <p>AVhere, by a syndicate agreement, each subscriber for himself agreed to purchase and take from the syndicate managers, composed of three of the subscribers, and the syndicate agreed to deliver bonds subscribed for and said managers were given the sole direction and management and entire conduct of the transactions and business of the syndicate, with full power to borrow money on notes and to pledge the bonds, the syndicate agreement and payments to be made by the subscribers as security and each subscriber guaranteed to any lender of money his proportionate amount of the loan, the syndicate managers are brought within the provisions of section 449 of the Code of Civil Procedure and have a right to maintain an action as trustees of an express trust to recover subscriptions where at the time of the trial they had possession of the syndicate agreement free of all liens.</p> <p>AVhile there might be some question as to the reception of evidence as to what other members of the syndicate authorized or understood that a former member did, it was removed by a charge'that if he made certain representations and promises as claimed by ' defendant they were binding upon the plaintiffs.</p>

<p>Appeal by Bush Terminal Company, employer and self-insurer, from an award of the State Industrial Commission, made on the 27th day of October, 1915, awarding compensation herein.</p>

<p>Cross-appeals by the plaintiff, Fleurette B. Gallon, and the defendants, Charles Hussar 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 Westchester on the 20th day of April, 1915, upon the decision of the court after a trial at the Westchester Special Term.</p>

Appeal by the defendant, United Traction Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 4th day of September, 1915, vacating and setting aside a verdict of a jury herein and the judgment entered thereon.

Appeal by the plaintiff, Import Chemical Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1915, granting defendant’s motion to strike out certain allegations of the amended complaint and to make certain other allegations more definite and certain.

<p>False imprisonment — probable cause — plaintiff held for trial on criminal charge —when error to direct judgment dismissing complaint. ■</p> <p>The fact that one arrested on a criminal charge was after an examination held for trial, is prima facie evidence of probable cause for the prosecution, and in an action brought by him for false imprisonment and malicious prosecution, the burden of proof rests upon him to show want of probable cause and malice.</p> <p>Where the record on appeal from the judgment entered upon the dismissal of the complaint by direction of the court at the close of plaintiff’s ease shows that there was a clear issue on the question of want of probable cause and malice, which should have been submitted to the jury on the count for malicious prosecution, the judgment will be reversed and a new trial granted.</p> <p>Appeal by' the plaintiff, Alexander H. Neuowich, 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 April, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Appeal by the defendants, David Coulter 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 2d day of July, 1915, denying a motion to require the plaintiff to give security for costs.</p>

Appeal by the defendant, Edward F. Albee, 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 14th day of December, 1915, reversing an order of the City Court of the City of New York denying plaintiff’s motion for judgment on the pleadings and granting said motion. The pleadings consisted of an amended complaint and a demurrer thereto.

<p>Labor unions —United Brotherhood of Carpenters and Joiners of America—proceedings removing member under charges of interfering with members of his union confirmed — right of local union to appeal.</p> <p>Charges against a member of the United Brotherhood of Carpenters and Joiners of America that he interfered with members of his union who tried to get work on a certain building, and that he acted for the employer in obtaining workmen at less than the prevailing rate of wages, constitute a violation of section 190 of the general constitution of said order providing that “ Any * * * member who endeavors to create dissension among the members, or who works against the interest and harmony of the United Brotherhood * * * shall be expelled * * etc., but does not constitute a violation of section 54 of the by-laws of the joint council, providing that “Any member who does an unreasonable amount of work or who acts as a leader for his employer for the purpose of getting all the work possible out of the men working in the same shop or job with him shall be fined,” etc.</p> <p>Proceedings by a member of a local union against which such charges have been filed examined, and held, that the local union had jurisdiction to try the charges; that the various appeals were conducted fairly and with a due regard of plaintiff’s right, and that the court will not disturb the decision of the brotherhood expelling said member.</p> <p>The local union to which the member against which charges had been filed belonged had the right under sections 42 and 93 of the constitution to appeal.</p>

Appeal by the plaintiff, Charles L. Ament, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1916, denying his motion to vacate an order of reference herein.

Appeal by the defendant, City of Mechanicville, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 23d day of February, 1916, upon the decision of the court, a single question having been submitted to the jury for their determination. Both sides moved for the direction of the verdict at the close of the case.

Appeal by Morris Friedman 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 17th day of July, 1915, granting an application by the district attorney of Kings county for a peremptory writ of mandamus directing J. Harry Tiernan, individually and as county judge, and the County Court of Kings county to impose sentence as required by law -upon the appellant Friedman.

Appeal by the defendant, George T. Kelly, 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 6th day of December,-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 8th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Morris Friedman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of December, 1915, resettling a prior order dismissing a writ of habeas corpus and remanding the relator to custody.

Appeal by the defendant, The Oity 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 Kings on the 29th day of July, 1915, upon the decision of the court, a jury having been waived.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New Fork, entered in the office of said Surrogate’s Court on the 22d day of October, 1915, fixing a transfer tax upon certain remainders.

Appeal by William 0. Feathers, named as executor in the above instrument, from an order of the Surrogate’s Court of the county of Rensselaer, entered in the office of said Surrogate’s Court on the 21st day of April, 1915, denying his petition.

<p>Municipal corporations — city of Rochester—power of mayor to issue and revoke license for moving picture show — duty to prevent exhibition in unsafe building — suit for injunction—issues of fact not • • determined on conflicting, affidavits — offense against public decency —police power — enforcement of criminal law will not be enjoined.</p> <p>The mayor of the city of Rochester has power to issue a license for a moving picture show and to revoke the same without notice to the licensee.</p> <p>Where in the opinion of the mayor the theatre for which such license has been issued is unsafe and does not comply with the law and ordinances of the city, he is not only justified in revoking the license, but it is his duty to intervene and prevent the use of the building for picture shows, irrespective of whether the revocation is effective or not.</p> <p>A license is no protection to an unlawful use.</p> <p>In a suit for an injunction to restrain said mayor from interfering with a moving picture show upon the ground that the theatre as a matter of fact complies with the legal requirements, the issue will' not be determined in advance of trial upon conflicting affidavits.</p> <p>It seems, that amoving picture film which purports to inculcate a great moral lesson may nevertheless offend public decency.</p> <p>The fact that a large number of people wish to see such film is the greater reason for preventing its exhibition where the premises are unsafe.</p> <p>If the mayor was guilty of an actionable wrong the remedy is at law, for equity will not enjoin the enforcement of the criminal law.</p>

<p>Tax — transfer tax on personal property of citizen of foreign country — court —jurisdiction of surrogate to admit foreign will to probate — when widow, a citizen of foreign country, may contest transfer tax — distinction between probate and transfer tax proceeding — contest upon question of taxation does not necessarily attack right of surrogate to admit will to probate — conflict of laws — when foreign law governs as to rights of widow in property situated here.</p> <p>Where a resident of a foreign country dies leaving personal property in the hands of bankers in this State the Surrogate's Court of the county where the property is situated has jurisdiction to admit the decedent’s will to probate. The jurisdiction does not depend upon a finding that the decedent was a resident of this State owing to the fact that in order to protect himself .during times of war he had taken out naturalization papers.</p> <p>Where the decedent both before and after his naturalization actually resided in the foreign country, and made only temporary sojourns in this country on his way to and from his residence, so that as a matter of fact he was not a resident of the United States, and where his widow and descendants are subjects of the foreign nation whose courts have decreed that she has certain rights in the decedent’s personal property under the foreign law, the property in this State to which she is entitled is not subject to a transfer tax, and she is not estopped from contesting the levy of such tax by the fact that she was cited by publication in the probate proceedings in this State and failed to appear and contest the same.</p> <p>Such contest by the widow, relating only to the assessment of a transfer tax, is not an attack upon the jurisdiction of the Surrogate’s Court in admitting the will to probate, for the assessment of the tax is merely incidental with the due administration of the decedent’s estate by our court.</p> <p>As under the law of Cuba, in which country the widow resided, she was entitled to one-half ownership in the joint estate of herself and husband, and that fact having been established by a decree of the foreign court, the foreign law is applicable as to personal property situated in this State upon the principle that movables have no situs. Hence, in assessing a transfer tax the widow’s half of -the joint estate should be deducted.</p>

Appeal by the plaintiffs, George D. Gideon and another, 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 18th day of November, 1915, dismissing the complaint herein upon the merits and dissolving a preliminary injunction upon a decision of the court after a trial at the New York Special Term.

Cross-appeals by the plaintiff, INewburger-Morris Co., and the defendant, James Talcott, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of July, 1915, upon a decision of the court after a trial at the New York Special Term.

<p>Appeal by Mary Clementine Smedley from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of December, 1915, fixing the fee due to the respondent and directing the payment thereof.</p>

Appeal by the defendant, The Terry & Tench 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 10th day of March, 1915, upon the verdict of a ..jury for $8,500, and also from an order entered m said clerk’s office on the 17th day of March, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis 0. Frees Construction Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of May, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 1st day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff in each case, Sophie Wiener and Harry Wiener, from judgments of the Supreme Court in favor of the respondent in each case, entered in the office of the clerk of the county of New York on the 8th day of December, 1915, upon the dismissal of the complaint hy direction of the court in each action at the close of plaintiff’s case.

Appeal by the defendants, Michael Henig 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 24th day of November, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 26th day of November, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Alma Barton Strong Johnson, residuary legatee, and by George F. Chamberlin, as executor, from a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said Surrogate’s Court on the 26th day of November, 1910, judicially settling the accounts of Willard Lester, as executor of and trustee under the last will and testament of Augustus Gerald Hull, deceased, which accounts were filed February 16, 1904.

Appeal by the plaintiff, Frederick Farthing, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Queens on the 10th day of June, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, Grace V. Stacy, from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 3d day of September, 1915.

<p>Appeal by the defendant, Henry F. Thompson, 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 21st day of January, 1916, denying his motion for judgment on the pleadings, consisting of a complaint, amended answer and reply.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 11th day of October, 1915, affirming an order entered therein on the 31st day of December, 1914, fixing and assessing a transfer tax upon certain property.

Appeal by Eliza F. Brush 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 9th day of November, 1915, settling the accounts herein.

<p>Real property—suit to set aside fraudulent conveyance — concealment toy grantor of known defects in title — evidence establishing fraudulent concealment — reliance of grantee on validity of grantor’s title — option entitling grantee to purchase from true owner.</p> <p>Although at the time of a conveyance of lands it was understood between the grantor and grantee that the title was in an embarrassed state, if the grantor stated to the grantee that except for squatters and prior conveyances there was no objection to his title, and that he had a better title than any other person and that he knew of no defects, but as a matter of fact he knew that his title was worthless in that it was derived from a person who was not an heir to the original owner, there was actual fraud and misrepresentation which entitles the grantee to have the conveyance annulled and to recover the consideration paid.</p> <p>The fact that the grantor knew that his title was worthless is established by the fact that prior to the conveyance he had obtained from the true owners an option to purchase, which fact he concealed from his grantee.</p> <p>While one may remain silent and is not bound to tell the defects of his own title, where he does assume to tell defects and omits a material defect known to him, it may amount to fraudulent concealment.</p> <p>In a suit to set aside such conveyance it was error for the court to exclude testimony of the grantee to the effect that he took title relying upon the validity of the deed through which his grantor claimed to have acquired title.</p> <p>So, too, it was error for the court to exclude evidence of the option entitling the defendant to purchase from the real owners.</p>

<p>Appeal by Frances L. Wallace and another 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 14th day of October, 1915, as disallows certain commissions awarded them by the referee, and reduces an extra allowance of commissions made by said referee to Talbot J. Taylor.</p>

<p>• Appeal by the defendants, Reginald G-. Barclay 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 24th day of November, 1915, upon the decision of the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Estley Rothschild, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of February, 1916, granting defendant’s motion to open his default and permit him to serve an answer.

<p>Banks — enforcement of individual liability of stockholders — defendants cannot be joined in action at law—equity proper remedy — multiplicity of suits.</p> <p>Where the State Superintendent of Banks, acting under the authority of section 19 of the Banking Law, seeks to enforce the individual liability of stockholders of a bank imposed by section 196 of the statute, the facts entitling him to maintain an action against each defendant are different.</p> <p>Thus, it must be shown that a demand has been made upon each stockholder and that each has refused to pay the assessment levied; it must be shown that each defendant is a holder of shares which are separate and distinct.</p> <p>The liability of each shareholder is several, not joint, and arises out of different facts, and, hence, they cannot be joined as defendants in an action at law.</p> <p>It follows, therefore, that in order to avoid a multiplicity of suits, relief against all the stockholders may be had on the equitable side of the court.</p> <p>Smith, J., dissented.</p>

<p>Appeal by the plaintiff, Paul W. Horbach, 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 31st day of December, 1915, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 30th day of December, 1915, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, J. Langdon Ward and others, as trustees, 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 23d day of June, 1915, dismissing the complaint upon the merits upon a decision of the court after a trial at the New York Special Term.

<p>Crime — county of Mew York — bail — forfeiture—title to money forfeited — vacation of judgment of forfeiture — certificate of district attorney under section 1483 of Consolidation Act.</p> <p>The liability of a principal and surety becomes fixed upon the entry of an order of forfeiture of bail in the county of New York, and upon the entry of judgment by the district attorney title to the money becomes absolute in said county.</p> <p>Where a defendant arrested in the county of New York was held in bail, but failed to appear and did not surrender for some twenty months after her default, and was then acquitted, probably on account of the failure of the police officer to remember accurately the facts, it is not only possible but probable that the People were prejudiced by the defendant’s failure to appear, and the district attorney would not have been warranted in giving a certificate under section 1483 of the Consolidation Act to the effect that the People had lost no rights by reason of the failure of the defendant’s surety to produce her in compliance with the terms of a recognizance given by them, and if he had given it, the court would not have been justified in vacating a judgment of forfeiture.</p> <p>Section 1483 of the Consolidation Act is not mandatory with respect to the action to be taken by the court after the production of a certificate of the district attorney that the People have lost no rights by reason of the failure of a surety to produce a principal in compliance with the terms of the recognizance given by them.</p> <p>It seems, from the provisions bf said section of the Consolidation Act, that the Legislature intended that the certificate of the district attorney should be a prerequisite to relief from forfeiture.</p>

<p>Mechanic’s lien—liability of owner who consents to improvements made by lessee — facts establishing consent of owner — failure of lessee to furnish further bond as requested by owner — waiver of condition — notice of lien — naming owner — hold er of record title — naming officer and stockholder of corporation — failure to allege consent of owner — verification of notice by attorney — notice combining labor and material in one item — wages of laborers — payment by worthless check — bankruptcy of lessee — right of laborers to proceed against consenting owner.</p> <p>Where the lease of a race track provided in substance that the lessee might erect such new buildings and make such improvements as may be specifically approved by the owner, and the owner consented in writing to certain improvements upon the condition that the tenant furnish a satisfactory guaranty of its ability to pay for the improvements, and a temporary guaranty was accepted by the owner, with the condition that a further guaranty should be obtained from a specified surety, the owner must be considered to have consented to the improvements within the meaning of the Mechanics’ Lien Law, so as to be hable to lienors when the lessee subsequently became bankrupt. And this is true, although the tenant did not actually furnish the second guaranty required by the owner, if the latter retained the original bond on which the sureties remained liable, and in no manner revoked its consent to the tenant’s improvements. Especially is the owner liable where the improvements were to the owner’s advantage, by reason of the fact that the new structures could not be removed by the tenant, unless it performed all of its agreements, so that the improvements became security for the rent.</p> <p>Where a notice of lien originally stated that “no other action or proceeding at law or in equity has been brought to foreclose the said plaintiff’s said lien or claim,” and at the opening of the trial the lienor, without objection, was permitted to amend the notice by adding the words “ Or to recover the amount due to the plaintiff,” the requirements of the Code were satisfied and objection to the sufficiency of the notice cannot be taken on appeal.</p> <p>Where the owner, a corporation, had changed its corporate name, but the title to its lands remained recorded under its original name, a notice of mechanic’s lien may designate the owner by its original name, and the notice is sufficient where the owner has not been misled.</p> <p>Liens may be enforced which name individually the person who is chief stockholder and president of the corporation, and whose personal activities gave rise to a belief in his ownership, if there are no intervening interests to be affected.</p> <p>A notice of mechanic’s lien which names the owner need not state that the improvement was made with his consent or at his request.</p> <p>A notice of mechanic’s lien may be verified like a pleading, by the attorney of the lienor, who may aver that the statements are true to his own knowledge, except as to matters stated to be alleged on information and belief.</p> <p>The owner is chargeable with mechanics’ liens for improvements which had been expressly brought to its attention, and which it did not disapprove, and they will be regarded as coming within the terms of the subsequent bond and included in the resulting consent of the owner.</p> <p>A notice of lien must separate labor and materials “furnished and to be furnished,” but may combine both labor and materials in one item.</p> <p>Laborers who were paid by the lessee by checks which were afterwards dishonored, and who filed their claims on the bankruptcy of the lessee, may, nevertheless, file mechanics’ liens against the owner of the property who consented to the improvement. This, because the liens are not against the bankrupt’s property, but against that of the owner and lessor.</p> <p>A mechanic’s lien filed against the interest of the lessee after its bankruptcy is valid, as the trustee in bankruptcy takes title subject to all liens and pending proceedings to enforce them.</p> <p>Laborers who were paid by worthless cheeks and who succeeded in cashing the same are, nevertheless, entitled to file mechanics’ liens against the owner who consented to the improvement, and where they did not tender the return check at trial, they are entitled to have a provision for the production and deposit of such cheeks added at the foot of the decree.</p> <p>Rich, J., dissented, with opinion.</p>

<p>Railroad —negligence—injury to freight conductor—when employee engaged in interstate commerce — charge as to duty of oncoming train to signal — mistake of conductor as to identity of train — when question as to plaintiff’s right to warning signal is for jury — effect of former reversal upon question of law only — apportionment of damage under Federal statute — practice—special findings of jury as to contributory negligence — excessive verdict.</p> <p>The conductor of a freight train bound from a point in this State to a city in an adjoining State was engaged in interstate commerce although during the journey he had to report for operating orders at certain stations in this State. Hence, although he was injured in this State his rights are governed by the Federal Employers’ Liability Act.</p> <p>Where the duties of the plaintiff required him to report for instructions at a certain station and he jumped from his train when it had slowed down to from two to five miles an hour and was struck by an express train running thirteen minutes behind schedule which rounded a curve less than 400 feet distant without warning signals, a charge that if the plaintiff believed a train which he had previously passed was the express train and the jury should find that the plaintiff was not justified in such belief, the jury should find for the defendant although there was no signal given, was more favorable than the charge to which the defendant was entitled and hence is no ground for reversal.</p> <p>Although the train which the plaintiff had previously passed was a local passenger train, it cannot be held as a matter of law that he was required to distinguish it from an express train by the difference in speed when the trains were moving at full speed between stations.</p> <p>As the plaintiff’s duty required him to cross the tracks at the station where his train was scheduled to stop, he was entitled to a reasonable warning from those in charge of an approaching train, both under the State and Federal decisions. Whether in a particular situation such a warning is required cannot be determined adversely to the plaintiff as a matter of law, but is a question for the jury. Thus it is for the jury to say whether the engineer of the express train before reaching a nearby crossing, or after he had distinguished the lights of the plaintiff’s train, was under the duty of giving a signal.</p> <p>Where on a prior appeal a judgment for the plaintiff was reversed on the sole ground that he was not engaged in interstate commerce and the order stated that the reversal is upon questions of law only, the facts having been examined and no error found, there was an implication that the findings as to the defendant’s negligence were sustained.</p> <p>Under the Federal statute damages attributable to the faults of both plaintiff and defendant are to be apportioned. The jury must lessen the plaintiff’s damages in the proportion which his contributory fault bears (not to that of the defendant), but to the entire causal negligence attributable to both.</p> <p>However, whereat the time of trial it was not the custom to require juries to return special verdicts so that damages could be apportioned, a refusal of the trial court to direct findings as to the proportion in which the plaintiff’s negligence contributed to the accident was not reversible error.</p> <p>It seems, that in future trials under the Federal statute it is preferable that juries return special verdicts.</p> <p>Held, that under the circumstances a verdict for $40,000 was excessive, and that a new trial should be granted unless the plaintiff stipulate to reduce the recovery to $25,000.</p> <p>Jenks, P. J., and Thomas, J., dissented in part.</p>

Appeal by the defendants, Walter F. Springsteen, individually and as guardian and executor, and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of December, 1915, upon the decision of the court after a trial at the Kings County Special Term.

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

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

Appeal by the plaintiff, Virginia Triay, from a judgment of the County Court of Bronx county in favor of the defendant, entered in the office of the clerk of said county on the 24th day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 30th day of December, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Statute of Frauds — oral promise to answer for default of another — promise to pay sums due from corporation to building contractor — agreement to pay moneys thereafter to be earned.</p> <p>An oral promise made by the president of a corporation to a contractor erecting a building for the corporation whereby he agreed personally to pay for work already done, if the corporation failed to pay, is an oral agreement to answer for the debt or default of another and is void under the Statute of Frauds even if supported by a sufficient consideration. But an oral promise to pay moneys thereafter to be earned by the contractor, who had threatened to abandon the work if such promise were not made, is not within the statute and is enforcible against the promisor, being an independent promise founded upon a sufficient consideration.</p>

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

Motion by the plaintiff, Paul Mizak, to set aside a nonsuit and for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance after the court at the Niagara Trial Term had granted defendant’s motion for nonsuit at the close of plaintiff’s case, judgment on the nonsuit being in the meantime suspended.

<p>Appeal by the Rochester Last Works from an order of the County Court of Monroe county, entered in the office of the clerk of said county on the 13th day of April, 1915, overruling its objections to the sufficiency of the notice served upon it herein, and appointing commissioners to appraise the damages which the owners of the land sought to be taken will severally sustain and to compute the compensation which they will severally be entitled to receive.</p>

<p>Appeal by the defendant, Prudential Insurance Company of America, from a judgment of the County Court of Oneida county, entered in the office of the clerk of said county on the 18th day of January, 1915, modifying a judgment of the City Court of Utica in favor of the plaintiff for two hundred and fifty-two dollars and thirty-five cents by deducting therefrom the sum of seven dollars and twenty cents, and affirming said judgment as so modified, with twenty-five dollars costs.</p>

<p>'Pleading — action on breach of agreement to procure indorsement and delivery of check—when plaintiff need not allege person to whom goods were sold—when complaint not indefinite.</p> <p>A complaint which seeks a recovery, not on the theory of a sale and delivery of goods to the defendant, but on the ground that the latter was guilty of a breach of a contract to draw a check to the order of a contractor to whom the plaintiff delivered materials and to procure his indorsement and the delivery of the cheek to the plaintiff, need not allege to whom the plaintiff sold the material, and it is error to require the complaint to be made more definite in that respect.</p>

Appeal by the Commissioners of the Palisades Interstate Park from an order of the Supreme Court, made at the Bock-land Special Term and entered in the office of the clerk of the county of Bockland on the 23d day of December, 1915, as resettled by an order entered in said clerk’s office on the 4th day of January, 1916.

Appeal by the defendant, Harry S. Houpt, Inc., 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 March, 1916, requiring it to give plaintiff a discovery and inspection of specified books, papers and records relating to transactions between the Lozier Motor Company and the defendant under and by virtue of agreements between them during the years 1913, 1914 and 1915, covering…

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

<p>Trust — agreement to administer sums due to an insurance agent for the payment of his creditors — instrument creating trust — termination of trust by subsequent agreement of beneficiary to subordinate his claims to those of trustee — equity — accounting.</p> <p>Appeal from an interlocutory judgment in equity, decreeing that the defendant, an insurance company, was a trustee for the benefit of the plaintiff and other creditors of one Haynes and ordering an accounting. The agreement under which the trust arose was tripartite and was made between the plaintiff and other creditors of Haynes, who was general agent of the defendant, and also between Haynes and the defendant. It appeared that Haynes, as agent for the defendant, was indebted to it for moneys advanced, but for services rendered was entitled both to commissions on the premiums of insurance policies procured by him, and also on renewal premiums for a series of years, and that the defendant claimed a paramount lien on such commissions. As Haynes was indebted to other persons, and it was desired to induce them to refrain from pressing their claims against him, the agreement provided that Haynes should endeavor to write more insurance, and that the defendant insurer should take financial control of his agency until his debts were fully liquidated. Haynes’ creditors agreed that the claims of the insurer against him should be superior to other rights, but that pro rata dividends should be declared by the insurer on the claims of the' other creditors from time to time, with interest, in consideration whereof the general creditors agreed not to enforce them claims for three years, it being expected that the claims would be paid within that time. Haynes gave to the insurer full-control of his renewal interests in the agency, past or future, pending the payment in full of his creditors, it being agreed that when they were paid the trust should cease and determine. Thereafter Haynes and the present plaintiff, one of his creditors, became copartners in the insurance business, and it appeared that the insurance company had paid certain other creditors than the plaintiff in full and had made no pro rata payment to him. Tripartite agreement construed, and</p> <p>Held, that the agreement made the insurer a trustee for the plaintiff and other creditors of Haynes, and for Haynes himself, of the moneys due and to become due to him on renewal premiums, and hence was under the duty of administering the fund as it accrued, in accordance with the agreement.</p> <p>The consideration flowing from the general creditors was the agreement not to press, their claims, and the consideration flowing from Haynes to the insurer was the advantage it obtained in enabling him to conduct his agency without molestation from outside creditors.</p> <p>Any beneficiary having rights under said agreement is entitled to call the trustee to account.</p> <p>Said trust agreement did not terminate at the expiration of the three-year period specified, but by its terms was to continue until the debts of Haynes were paid. Nor was the agreement terminated because for a period Haynes left the employment of the insurance company and acted as agent for other insurers, especially so where the defendant made no objection to his leaving its employ and asserted no right to terminate the agreement on that account.</p> <p>It further appeared that after his resignation the defendant agreed to reappoint Haynes as its agent, upon the condition that he obtain an agreement from the plaintiff, his partner and creditor, to the effect that Haynes’ indebtedness to the defendant should have priority over the claims of the plaintiff against him, which agreement was made by the plaintiff, and thereafter Haynes assigned to the plaintiff as collateral security for his indebtedness his interest in renewal commissions to accrue in the future, reserving the right of the defendant, however, to make further advances which shall be a first lien upon his interest.</p> <p>Held, that these collateral agreements were erroneously excluded by the court; but, being in the record, it was not necessary to remit the case for a modification of the interlocutory judgment which can be done by the appellate court.</p> <p>Held, further, that the subsequent agreement made by the plaintiff and Haynes with the insurance company did not constitute a relinquishment of the plaintiff’s right to an accounting under the tripartite agreement, ,but did relieve the defendant from further acting as trustee from the date of said agreement.</p> <p>Held, further, that as the secondary agreements did not modify the original tripartite agreement, but merely terminated the trust as respects the plaintiff and as to future commissions to become due to Haynes, and as the insurer was to have first lien on such commissions, the plaintiff’s claim against Haynes was subordinate to that of the defendant. Hence the accounting to which the plaintiff is entitled should be limited to the period from the date of the tripartite agreement until the time the trust terminated as to him.</p>

<p>Banks and banking — action by Superintendent of Banks to enforce individual liability of stockholders—-provision of Banking Law of 1914 applicable topending actions — effect of death of stockholder after commencement of action.</p> <p>The provision of the Banking Law, as revised in 1914, authorizing an action by the Superintendent of Banks against stockholders, either severally or jointly, to enforce their liability, thus declaring a costoekholder not to be a necessary party, constitutes a rule of procedure and applies to actions pending under the prior statute.</p> <p>Hence, where, after the commencement of an action by the Superintendent of Banks under section 19 of the former Banking Law to enforce the individual liability of stockholders under section 196 of said statute, one of the defendant stockholders died, and an executor qualified, but the plaintiff failed to join him in the action, a motion to strike the case from the Special Term calendar should be denied.</p>

Appeal by the plaintiffs, Henry P. Hatch and another, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 1st day of November, 1915, sustaining the demurrers of the respondents to the complaint.

Appeal by John E. Hayes 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 18th day of January, 1916, removing him as executor of the estate of John Hayes, deceased, and also from an order entered in the office of said Surrogate’s Court on the 13th day of January, 1916, denying his motion for a reargument of an application made by the respondent for an order directing him to sign certain checks or show…

Appeal by Willis B. Richards and another, as administrators, from two decrees of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 11th day of June, 1915, and the 6th day of December, 1915, respectively, the one setting aside a certain sale to Flora C. Keck and the other requiring the administrators to render and file an account of their proceedings.

<p>Discovery — examination of defendant before trial to frame bill of particulars — when plaintiff fully protected by terms of previous order.</p> <p>Where the plaintiff in an action for damages for an alleged conspiracy to injure his business by enticing away patrons and employees has been ordered to give a bill of particulars, and the order provides that only those particulars of -which plaintiff has knowledge need be given and as to particulars of which it has no knowledge it shall state the lack of knowledge under oath, it is not entitled to a subsequent examination of the defendant before trial for the purpose of framing the bill of particulars, for the plaintiff is protected by the terms of the original order.</p>

Appeal by the defendant, Massachusetts Bonding and Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1915, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 5th day of November, 1915, denying appellant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Andrea Graffeo, from a judgment of the County Court of Kings county, rendered against him on the 28th day of May, 1915.</p>

Appeal by the plaintiff, Aaron Horowitz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of July, 1914, upon the dismissal of the complaint by direction of the court at the opening.

Motion by the plaintiff, Federal Terra Cotta Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after a dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury at the New York Trial Term in October, 1915. Plaintiff moved for the direction of a verdict at the close of the case and the defendant moved for a dismissal of the complaint.

Appeal by the defendant, Nellie Tomasso, from a judgment of the County Court of Steuben county, entered in the office of the clerk of said county on the 31st day of January, 1916, affirming a judgment of the City Court of the City of Corning, rendered against her on the 19th day of September, 1914, convicting her of permitting certain premises to become disorderly. An appeal is also taken from the original judgment of the City Court.

Appeal by the plaintiff, Albert Sanders, as receiver, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of February, 1915, upon a dismissal of the complaint by direction of the court at the close of the case, both sides having moved for the direction of .a verdict.

<p>Decedent’s estate — suit to foreclose mortgage owned by decedent — subsequent appointment of mortgagor as executor—executor cannot be compelled to bring action against himself — erroneous substitution of parties — remedy of legatee when representative fails to collect assets —judicial accounting.</p> <p>Where a widow has been appointed administratrix of her husband’s estate and has brought a suit to foreclose a mortgage given to her intestate, and owing'to the existence of a will which was subsequently admitted to probate the mortgagor has been appointed executor of the estate, the widow is not entitled to an order substituting the executor in her place as plaintiff in the foreclosure action and permitting her to intervene as an interested person. This, because such order would compel the defendant executor in his representative capacity to prosecute an action against himself individually.</p> <p>Such order is not authorized by section 723 of the Code of Civil Procedure providing for the amendment of process and pleading by adding or striking out the name of a party.</p> <p>A legatee or next of kin entitled to a distributive share is not entitled to be made a party to a suit or proceeding brought by the representative of the estate to recover assets of the decedent, nor can she compel a representative to bring an action against his wishes or judgment.</p> <p>It seems, that if the executor fails in his duty to collect assets he may be charged bn the judicial settlement of his accounts in the Surrogate’s Court, wherein a person interested in the estate may have questions of fact determined by a jury.</p>

<p>Appeal by the defendant, The Acheson Harden Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of November, 1915.</p>

Appeal by the defendants, James F. Stocking 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 10th day of January, 1916, adjudging the defendants in contempt of court.

<p>False imprisonment — arrest by police officer without warrant — arrest on information received from authorities of other city — evidence justifying arrest — right of person arrested to be brought before magistrate— section 165, Code Criminal Procedure, construed — erroneous nonsuit — when question of unlawful detention question for jury.</p> <p>Where the police department of the city of Syracuse received information by telephone from the police department of the city of Buffalo stating that a burglary had been committed in the latter city, and that the thief was on a train which would pass through Syracuse, and requesting that he be apprehended, police officers in the city of Syracuse, who were directed to make the arrest by their superior officers, were justified as a matter of law in arresting a person on said train who answered to the description furnished by the Buffalo authorities.</p> <p>But a person so arrested had a right to be taken before a magistrate without unnecessary delay, as required by section 165 of the Code of Criminal Procedure, which section is applicable to cases where an arrest is made by a police officer without a warrant.</p> <p>Hence, while the police magistrate of the city of Syracuse did not have jurisdiction to investigate a crime committed in the county of Erie, nevertheless the person apprehended should have been brought before the magistrate, and where he sues the officers making the arrest for false imprisonment, and it appears that on the morning after his arrest he was held in custody for many hours when he might have been brought before the magistrate, it is error for the court to grant a nonsuit upon the ground that the provisions of section 165 of the Code of Criminal Procedure did not apply. The plaintiff was entitled to have submitted to the jury the question as to whether he should have been brought before the magistrate, and whether he had been deprived of his liberty longer than permitted by law.</p>

<p>Crime — former conviction—appeal — amendment of record — evidence — proof of former conviction.</p> <p>Where on an appeal from a judgment convicting the defendant of burglary as a second offense there is a question as to the correct form of the record of his previous conviction, the district attorney is entitled to have added to the record a certificate of the county judge to the effect that the record in evidence is a correct copy.</p> <p>Where on the trial the previous conviction of the defendant was testified to by a person who was present at the former trial and no objection has been taken, the former conviction is sufficiently established, and it is not necessary to introduce in evidence the previous indictment, for the court is required by section 1941 of the Penal Law to act in imposing a sentence for a second conviction upon proof of the prior conviction alone.</p> <p>It is not necessary that the prosecution show that on the former conviction the defendant was asked before sentence was imposed whether he had any cause to show why judgment should not be pronounced against him. Hor need the prosecution show that the defendant was discharged from imprisonment after having served his term.</p> <p>Evidence examined, and held, sufficient to support a judgment of conviction.</p>

<p>Constitutional law—constitutionality of Town Law, section 107a, authorizing town board to fix compensation of justices of the peace — test of constitutionality of statute.</p> <p>Section 107a of the Town Law, added by chapter 11 of the Laws of 1915, giving to the town board of any town containing a population of 20,000 or more power to fix by resolution an annual salary not exceeding $1,500 for justices of the peace in such town for all services rendered by them in criminal actions or proceedings, is not an unlawful delegation of legislative power and does not violate section 1 of article 3 of the Constitution, which declares that “ The legislative power of this State shall be vested in the Senate and Assembly.”</p> <p>The fact that the justices of the peace form a majority of the town board does not in any way affect the validity of said statute.</p> <p>While the test of the constitutionality of a statute involves the idea of what may be done under its authority, and not simply what has been done or what is likely to be done, yet before the statute can be declared unconstitutional it must be apparent that it attempts to authorize, either expressly or by implication, the doing of acts not within the legislative power to authorize, and in applying this test no mere insubstantial hypothesis should be used.</p>

Appeal by the plaintiff, Preston B. Seaman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 18th day of March, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1909, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Cross-appeals in each case by the plaintiffs, William Dulce and William Glynn, and the defendant, James C. Fargo, as president, from two judgments of the Supreme Court, one in each case, in favor of the respective plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of January, .1916, upon the verdicts of juries in the first case for $1,500, reduced by the court to the sum of $1,000, and in the second case for $2,750, reduced by the court to $1,500, and also an appeal is taken from two orders, one in each case, entered in said clerk’s office on the 7th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes in each case. The defendant appeals from the whole of said judgments and orders. The plaintiffs appeal from said judgments in so far as they are for less amounts than the verdicts rendered by the juries, and also from the orders of the court reducing the verdicts.</p>

<p>Appeal by the defendants, Edward N. Breitnng 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 31st day of March, 1916, denying their motion to strike out paragraph IH of the complaint as irrelevant and redundant.</p>

Appeal by the defendant, Zaharia 'Kerber, from a judgment of the Court of Special Sessions of the City of New York, Part VI, entered in the office of said court on the 10th day of March, 1916, convicting him of violating the provisions of section 439 of the Penal Law and sentencing him to imprisonment for sixty days and to pay a fine of $250 or to serve sixty days additional time in the workhouse.

Appeal by the defendant, Leonard Landes, 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 March, 1916, denying defendant’s motion for judgment on the pleadings consisting of a complaint and answer in an action for separation.

<p>Mortgage — foreclosure — power of court to relieve purchaser from bid.</p> <p>Where a purchaser at a foreclosure sale paid the referee the required percentage of the purchase price and signed the usual terms of sale, which provided for the conveyance of the premises free and clear of all incumbrances, and for the payment of the purchase price on a fixed date, he should be compelled to complete his purchase and pay the balance in cash, although it appears that the plaintiff’s son assured the attorney for the purchaser that his mother would permit a mortgage to remain on the property, but the mother subsequently claimed that the son had no authority to represent her at the sale.</p> <p>While a contract of sale made upon the foreclosure of a mortgage is with the court and not with the parties to the action, yet the court acts as a representative of the parties and may, under proper circumstances, relieve a purchaser from his bid, where no injury will result to the parties.</p>

<p>Appeal by the defendant, The Nassau Lumber Company, from a judgment of the County Court of Nassau county in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of said county on the 17th day of July, 1915, upon the decision of the court after a trial at a Trial Term of said court, except in so far as said judgment provides that appellant is entitled to a personal judgment against the defendant Jesse H. Heidtmann, and also an appeal is taken from the findings of fact and conclusions of law of the court made herein.</p>

Reargument by the appellant, Nassau Lumber Company, of an appeal from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 17th day of July, 1915, in an action to foreclose a mechanic’s lien. (See 172 App. Div. 763.)

<p>Railroad—negligence—vehicle struck by street car coming from behind — erroneous charge — failure to look for approaching car.</p> <p>Where the plaintiff driving a loaded wagon on a city street turned upon the tracks of a street railway company in order to pass a standing vehicle and was struck by a street car coming from behind, which accident happened in the middle of a block, it was error to charge in substance that the jury may decide as to the plaintiff’s contributory negligence if lie failed to look behind for an approaching car.</p> <p>It seems, that under the circumstances the court should charge that before driving upon the tracks in the middle of a block where street cars have the right of way, it was the duty of the plaintiff to look for approaching ears, unless the evidence was such as to show that looking would be of no avail.</p> <p>Such error was not cured by a subsequent charge that if the plaintiff turned his vehicle into the path of danger when the street car was approaching within “fifty feet” there must be a verdict of no cause of • action, for as on the evidence the jury might have found that the plaintiff drove upon the tracks when the car was sixty feet away, they might find him free from negligence, although he did not look.</p>

Appeal by the defendant, Mary E. McDonald, from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of January, 1916, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, ninth district, dated July 19, 1915.

<p>Contempt-—acts-done to"render forthcoming judicial decree ineffective ... .— suit to foreclose lien on liquor tax certificate.</p> <p>Where after the trial of ¿suit to foreclose alien on a liquor tax certificate and after the court has announced the decision it intends to render, the attorney of the defendants advised his clients to sublet the premises for which the certificate had been issued and induced the new lessee to apply for a new certificate for the purpose of preventing the plaintiff from reaping any substantial benefit from the decree, the attorney was properly adjudged guilty of a contempt of court under the authority of section 753 of the Judiciary Law.</p> <p>Such act is contemptuous although the decree establishing the hen and directing foreclosure had not been formally entered.</p> <p>Lambert and De Ang-elis, JJ., dissented, with opinion.</p>

Cross-appeals by the plaintiffs, Charles W. Smith and others, and by the defendant, Ulysses B. Russell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 30th day of July, 1915, upon the decision of the court after a trial at the Cattaraugus Equity Term.

Appeal by Elizabeth Pratt De G-asquet James, individually and as executrix, from a decree of the Surrogate’s Court of the county of Ulster, entered in the office of said Surrogate’s Court on the 21st day of March, 1915, judicially settling her accounts herein. Also motions to dismiss an appeal.

<p>Husband and wife — validity of foreign divorce—when judgment of Nevada courts determining residence of wife conclusive — action by wife on foreign judgment for alimony — when foreign judgment conclusive in this State — decree relating to community property not enforcible here — constitutional law — full faith and. credit clause of Federal Constitution — conflict of laws.</p> <p>Where a husband sued for divorce by his wife in the District Court of the State of Nevada was personally served with process in that State and appeared and demurred to the complaint and, his demurrer having been overruled, judgment was taken against him by default for absolute divorce with permanent alimony, the foreign court obtained jurisdiction ’and was competent to determine the fact that the wife was a resident of Nevada, whether or no that issue was actually litigated.</p> <p>Hence, the husband when sued in this State on the foreign judgment for alimony cannot attack the finding in the foreign decree that the wife was a resident of the foreign State.</p> <p>Under the circumstances aforesaid the court of Nevada had jurisdiction to award monthly alimony to the plaintiff and to charge the defendant with the support and maintenance of his children.</p> <p>Where such decree contained no reservation of a power to modify the alimony or the provision for the support and maintenance of the children it definitely fixed the defendant’s obligations and the wife may maintain an action on said judgment in the courts of this State to recover arrears of alimony.</p> <p>But a provision in said foreign decree adjudging that the wife, pursuant to the law of Nevada, had a half interest in all community property belonging to herself and husband, wherever situated, will not be enforced by the courts of this State, for said foreign law, though operative upon community property within the foreign State, has no extraterritorial effect upon property within this jurisdiction.</p> <p>While under the full faith and credit clause of the Federal Constitution a foreign judgment for the recovery of a sum of money must be accepted by our courts as a conclusive adjudication of the indebtedness, the Federal Constitution does not require the enforcement of the judgment of the sister State, and, therefore, does not apply to the provisions of a judgment in a suit in equity which are incidental to the main relief and are in the nature of an execution of the judgment itself.</p> <p>Section 1772 of the Code of Civil Procedure, as amended, is limited in its application to judgments for divorce or separation rendered in another State upon the ground of adultery, and not judgments rendered for other causes.</p>

<p>Crime — grand, larceny, first degree — conversion of assets of estate by confidential agent of decedent — proof justifying conviction — indictment — charge that defendant was acting as agent of executor — evidence — testimony of defendant in discovery proceedings — prior civil action to recover value of stolen property — pleading in prior civil action.</p> <p>The defendant was convicted of grand larceny in the first degree in that, having been secretary and confidential agent of an aged woman, he concealed assets of her estate after her death, appropriated the same to his own use and fled the jurisdiction. Evidence examined, and held, to sustain a verdict of conviction.</p> <p>As the defendant concealed and sold securities belonging to the estate after title to the same had vested in the decedent’s executor, it is proper for the indictment to charge the offense as having been committed by the defendant while employed in the capacity of servant, agent and bailee of the executor, and to charge in common-law form that the property was that of the executor.</p> <p>The contention that testimony given by the defendant in proceedings to discover assets of the estate in his hands and relating to the defendant’s claim of title by gift to securities which he stole was erroneously introduced in the criminal trial, on the theory that he was compelled to be a witness against himself and that the evidence was inadmissible under section 2443 of the Penal Law, is untenable where there was a mere general objection to such testimony and no specific objection under the statute aforesaid.</p> <p>Testimony as to securities held by the defendant other than those for the larceny of which he was indicted was properly admitted where the transactions were related to each other.</p> <p>It was not reversible error to admit in the criminal action the summons and complaint in a prior civil action brought against the defendant to recover the securities held by him, especially where no objection was raised at the trial and there was nothing in the defendant’s answer which connected him with the crime other than showing his relations with the decedent and his management of her property.</p> <p>Foote andDs Angeeis, JJ., concurred in separate opinions; Lambert, J., dissented, with opinion.</p>

Appeal by the plaintiff, Levi S. Chapman, from a judgment of the Supreme Court in favor of the defendant, entered, in the office of the clerk of the county of Onondaga on the 17th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The State of New York, from a determination and award of the Board of Claims, entered in the office of the clerk of said board on the 18th day of May, 1915, granting plaintiff a judgment of $76,327.54 for the appropriation of seven and three hundred and one one-thousandths acres of land, with interest, amounting in all to $94,477.08.

Appeal by the defendant, Empire Carrying Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of November, 1915, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 15th day of November, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Title Guarantee and Trust Company and another, as executors and trustees, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 18th day of November, 1915, dismissing an appeal by said executors from an order of Hon. John P. Cohalan, one of the surrogates of the county of New York, which modified an order of Hon. Robert L. Fowler, another of the surrogates of the county of New York, which last order…

Appeal by the plaintiff, Simon Karosas, 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 or about the 8th day of June, 1915, granting the motion of the respondent to set aside the service of a summons herein.

<p>Blaster and servant — negligence — action for personal injuries resulting in permanent total deafness in one ear — defense — compliance with Workmen’s Compensation Law—Workmen’s Compensation Law, section 15, construed.</p> <p>In an action by an employee to recover for an accidental personal injury sustained in the course of his employment, which resulted in' a permanent total deafness in one ear, a separate defense by the defendant that it had complied with all the provisions of the Workmen’s Compensation Law is not, on its face, insufficient.</p> <p>A claim for such an injury maybe made under the Workmen’s Compensation Law.</p> <p>The particular injuries mentioned in section 15 of the Workmen’s Compensation Law for which compensation may be made are merely examples to aid in administering the statute. The enumeration does not profess to be exclusive.</p>

Appeal by the defendant, David W. dagger, 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 February, 1916, denying his motion •to change the venue from Kings county to Orange county.

Appeals by the defendant from two judgments of the Supreme Court, entered in the clerk’s office of Westchester county on the 11th day of Hovember, 1914, in favor of the plaintiff, and from two orders, entered in said office on the same day, denying his motion for a new trial.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 28th day of October, 1914, in favor of the plaintiff, and from an order entered in said clerk’s office on the 20th day of Hovember, 1914, denying its motion for a new trial.

<p>Appeal by defendant Gleichmann from a judgment of the County Court of Kings county in favor of plaintiff, entered in the office of the clerk of said county on the 5th day of Hovember, 1914, upon the verdict of a jury; also from an order entered on the 6th day of Hovember, 1914, denying his motion for a new trial.</p>

Appeal by the plaintiff from part of a judgment of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Suffolk on the 18th day of August, 1915.

<p>Appeal by Shirley S. Lloyd from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Westchester on the 33d day of July, 1915, resettling an order entered in said office on the 35th day of July, 1915.</p> <p>Order affirmed, with ten dollars costs and disbursements. ISTo opinion. Thomas, Stapleton and Putnam,' JJ., concurred; Carr, J., read for reversal, with whom Jenks, P. J., concurred.</p>

Appeal by the defendant from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 5th day of May, 1915, in favor of the plaintiff, and also from an order denying a motion for a new trial. Judgment and order of the County Court of Westchester county affirmed, with costs. Mo opinion. Jenks, P. J., Carr, Mills and Rich, JJ., concurred; Putnam, J., read for reversal.

<p>Appeal from order granting motion to remove to the Supreme Court two actions pending in the City Court.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 15th day of December, 1915, denying a motion to vacate, limit or restrict an order for the examination of defendant before trial.</p>

<p>Appeal from an order of the Appellate Term, entered in the New York county clerk’s office on the 5th day of Rovember, 1915, reversing an order of the Municipal Court granting a motion for a new trial upon newly-discovered evidence and reinstating the judgment originally rendered in favor of plaintiff.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 9th day of November, 1915, denying a motion to compel the plaintiff to accept an answer.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 15th day of December, 1915, denying a motion to vacate an order for the examination of plaintiff before trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York coufity clerk’s office on the 4th day of January, 1916, denying a motion to vacate an order for examination before trial of the defendant by its president and secretary and treasurer.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of November, 1915, denying a motion to vacate an order for the examination of plaintiff by its treasurer or to limit the scope of the examination.</p>

<p>Appeal from a judgment of the Supreme Court, dated the 10th day of June, 1915, and entered in the New York county clerk’s office upon an order entered on the 34th day of April, 1915, granting a motion for judgment upon the pleadings, said appeal bringing up for review said order, and also an order made on the 9th day of June, 1915, that the action be severed and that the plaintiff might enter separate judgments against each of the defendants.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of November, 1915, denying a motion for a stay of proceedings.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 1st day of August, 1914, setting aside a verdict and directing entry of judgment in favor of the defendant, and also from the judgment entered on the 12th day of November, 1915.</p>

<p>Appeal from an order of the Supreme Court, made at the Saratoga Special Term and' entered in the office of the clerk of the county of Washington on the 15th day of July, 1915, denying the defendant’s motion fora new trial.</p>

Order in so far as appealed from affirmed, with ten dollars costs and disbursements, on the opinion of Mr. Justice Kelby at Special Term. Jenks, P. J., Thomas, Carr, Mills and Rich, JJ., concurred.

Appeal by the defendant, Samuel Levenberg, from an order of the County Court of Kings county, entered in the Kings county clerk’s office on the 30th day of August, 1915, granting an interlocutory judgment overruling his demurrer to the complaint.

Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of the county of Monroe on the 31st day of March, 1914; also from an order denying defendant’s motion for a new trial, entered in said clerk’s office on the 14th day of April, 1914.

<p>Appeal from a judgmentbf the Supreme Court, entered in the Onondaga county clerk’s office on the 6th day of September, 1913.</p>

<p>Appeal 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 8th day of January, 1915, and also from an order entered in said office on the 30th day of January, 1915, denying defendant’s motion for a new trial.</p> <p>Judgment and order affirmed, with costs. All concurred, except Foote, J., who dissented.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 10th day of August, 1915, upon the report of a referee, and bringing up for review an order entered oh the 5th day of April, 1915, directing the clerk to tax the referee’s fees.</p>

<p> Mortgage—foreclosure—lienor—right to impound, rents—receiver. </p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of November, 1915, denying a motion to revive the action against the administrator of the estate of a deceased defendant, and to join the administrator and the heir and next of kin of the decedent as parties defendant.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 14th day of January, 1916, denying a motion to vacate an order for the examination of defendants.</p>

<p>Appeal from a judgment of the Supreme Court, entered m the New York county clerk’s office upon a decision after a trial at Special Term.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 13th day of December, 1915, and also from an order entered on the 27th day of December, 1915, resettling said first order in so far as they denied motions for a bill of particulars.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 11th day of January, 1916, imposing terms as a condition of vacating a judgment herein.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 13th day of December, 1916, denying a motion to vacate an order for the examination of plaintiff before trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 20th day of January, 1916, granting a motion to require the plaintiff to make the complaint more definite and certain.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 3d day of June, 1915, upon the verdict of a jury, and also from an order entered on the 21st dayof June, 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 31st day of January, 1916, denying a motion for leave to serve an amended answer.</p>

<p>Judgment—joint defendants— liability of each.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 24th day of June, 1916, upon the verdict of a jury, and also from an order entered on the 25th day of June, 1915, denying a motion for a new trial.</p>

Appeal by the defendant from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 9th day of November, -1914, convicting him of robbery in the first degree.

Reargument of appeal by the defendants from an interlocutory judgment of the Supreme Court, made at the Kings County Special Term and entered in the clerk’s office of the county of Kings on the 33d day of May, 1914 (See 168 App. Div. 453; 171 id. 931.)