Volume 173 — New York Appellate Division Reports

<p>Tax — transfer tax — proof not establishing foreign residence — domicile and residence synonymous for purpose of taxation.</p> <p>Appeal from an order of a Surrogate’s Court determining that the estate of a decedent was exempt from a transfer tax upon the ground that he was not a resident of this State. Evidence examined, and held, that the decedent was in fact a resident of this State and that a transfer tax should be imposed.</p> <p>Although there is a difference between the legal meaning of the terms of “residence” and “ domicile,” they are synonymous for the purpose of imposing a transfer tax and the domicile of a decedent, not his residence, may control.</p> <p>Although the statute of this State uses the word “ resident ” a person’s residence maybe determined by applying the principles of domicile and relying upon the authorities relating thereto.</p> <p>The mere fact that a person who had resided chiefly in hotels in the city of New York, having been left a bequest of household furniture leased a house in the city of London for the purpose of storing the furniture did not make him a resident of England so as to exempt his estate from a transfer tax, especially where letters written shortly before his death show that he considered himself an American citizen and he stated therein that he considered New York to be his home.</p>

Appeal by the plaintiff, Brooklyn Ash Removal Company, Inc., 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 March, 1916, denying its motion to strike out portions of the answer and for judgment on the pleadings.

Appeal by the defendants, William H. Simpson and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 23d day of August, 1915, overruling their demurrer to the complaint.

<p>Appeal by the defendant, Louis Becker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of December, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.</p>

Separate appeals by the petitioners, Uriah Harris and others, from eight orders, 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 August, 1915, as amended and resettled each by a further order entered in said clerk’s office on the 4th day of November, 1915.

Cross-appeals by the petitioner, Augustus Van Cortlandt, individually and as executor, and by 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 Bronx on the 10th day of September, 1915.

Appeal by the plaintiff, Frieda Hart, from a judgment of the Supreme Court in favor of one of the defendants, entered in the office of the clerk of the county of Hew York on the 26th 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.

<p>Appeal by John A. Kingsbury, individually and as commissioner of the department of public charities of the city of New York, and by Henry Moscowitz and others, individually and as commissioners of the civil service commission, from an order of the Supreme Court, made at the New York Special ■ Term and entered in the office of the clerk of the county of New York on the 6th day of December, 1915, granting relator’s motion in part and directing the issuance of an alternative writ of mandamus for her reinstatement to the position of superintendent of the New York City Children’s Hospitals and Schools on Randall’s Island.</p>

<p>Corporation — syndicate agreement for purchase of unissued stock— when member of syndicate liable on stock subscription—effect of failure to pay stock transfer tax—statute construed — agreement that subscription shall be binding irrespective of default of other subscribers.</p> <p>Where certain stockholders of a corporation entered into an agreement whereby they appointed two of their number as “ Syndicate Managers” to purchase the remaining unissued stock of the corporation, the managers to purchase for the subscribers unissued stock in proportion to their respective holdings, and each subscriber agreed to pay his subscription on call of the managers, and the agreement was pledged with the trustee for the benefit of the holder of a promissory note made by the managers to raise money for the purchase of unissued stock, a party to the agreement is liable to the trustee for the amount of his subscription, and it is no defense to an action that when the defendant assigned the stock held by him to the syndicate managers in exchange for certificates pursuant to a clause in the agreement the stock transfer tax imposed by section 370 of the Tax Law had not been paid.</p> <p>Such transfer comes within the exception provided by the statute, which exempts from taxation a deposit of stock certificates as collateral security for a loan.</p> <p>Moreover, where, by the express terms of the syndicate agreement, the liability of each subscriber became fixed when a sufficient number of subscribers had been obtained and each subscriber agreed to be bound irrespective of the failure of any other subscriber to perform his undertakings thereunder, the subscriber became bound when the subscribers were obtained even though a legal delivery of their shares by other subscribers had not been made to the syndicate managers.</p>

<p>Negligence — burning of barn by sparks from locomotive — ruling as to admission of testimony as to other engines throwing sparks — refusal to permit reading of original complaint.</p> <p>Where an action to recover damages to plaintiff’s bam, alleged to have been set afire by sparks from a locomotive owned and operated by defendant, was tried upon the theory that a freight train passing at about the time the fire was discovered threw a spark over 200 feet and that it landed through a window into the straw in the barn, and defendant’s tower operator, from his record of trains, testified that no freight train passed within a considerable time of the hour of the fire, a ruling of the court postponing the reception of testimony as to other engines of defendant throwing sparks an equal or greater distance than that required to reach plaintiff’s barn, until there was evidence in the case which would show some connection, did not raise the point as to the correctness of the ruling, there being no direct testimony that the fire was caused by a spark from the defendant’s engine.</p> <p>Assuming, however, that the point as to the admissibility of the testimony offered was fairly presented, the ruling of the trial court was not erroneous.</p> <p>Where the complaint, containing allegations made on information and belief deliberately controverted by the answer, had been withdrawn by an amendment, the refusal of the court to permit plaintiff’s attorney to read from the original complaint which defendant’s counsel at the close of plaintiff’s case had asked to have considered in evidence, was not erroneous.</p>

<p>Appeal by the defendants, Industrial Engineering Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 17th day of November, 1915.</p>

<p>Appeal by the defendant, Fred R. Badger, from a judgment of the County Court of Franklin county in favor of the plaintiff, entered in the office of the clerk of said county on the 1st day of July, 1915, upon the verdict of a jury rendered by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 26 th day of July, 1915, denying defendant’s motion for a new trial made upon the minutes.</p> <p>Defendant also appeals from the decision of the court directing the verdict, and from the refusal of the court to submit questions to the jury.</p>

<p>Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 9th day of August, 1912, upon the decision of the court, a jury having been waived.</p>

<p>Decedent’s estate — action to enforce parol agreement to devise lands — extent of relief in common-law action — quantum meruit for services rendered — Statute of Frauds — pleading — invalidity of contract not appearing on face of complaint.</p> <p>In an action at law the court has no power to enforce an alleged oral contract made by a person since deceased whereby she agreed to devise lands in consideration of services rendered to her, such contract being void under the Statute of Frauds.</p> <p>The greatest relief which a court of law can grant in such action brought against the executor of the promisor is a money judgment for the reasonable value of the services rendered.</p> <p>Where the invalidity of a contract void under the Statute of Frauds does not appear on the face of the complaint the defense can only be taken by answer, and the court cannot anticipate issues which may be raised by an answer not yet served.</p> <p>Howard, J., dissented.</p>

<p>Workmen’s Compensation Law — death by drowning — intoxication of employee —when accident did not happen in course of employment.</p> <p>A person employed as a craneman on a dredge anchored in a river, and living on the dredge in quarters furnished by his employer, who went ashore in the evening, after his hours of labor, for purposes entirely personal to him, and, becoming intoxicated, fell from a dock and was drowned while waiting for a rowboat maintained by the master to transport employees to and from the shore, was not killed in the course of his employment, and those dependent upon him are not entitled to an award under the Workmen’s Compensation Law.</p>

<p>Appeal by the defendant, Post Mortgage and Land Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of November, 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 10th day of January, 1916, denying defendant’s motion for a -new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Mount Sinai Hospital, 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, sustaining a demurrer to a separate defense set up in the answer.</p>

Appeal by the plaintiff, Louis Feitelson, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1th day of April, 1916, denying his motion to vacate an order entered on the 21th day of March, 1916, requiring him to give security for costs herein.

Appeal by the defendants, Irving Ruland and-others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1915, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Massachusetts Bonding and Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1916, overruling the defendant’s demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings and denying defendant’s motion for judgment thereon.

Appeal by the defendant, Edgar Wilson Eye, from an order of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the county of Eew York on the 23d day of March, 1916, overruling his demurrer to the complaint.

Appeal by the defendant, Elverton R. Chapman, 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, overruling his demurrer to the complaint. The demurrer was made on the grounds of the insufficiency of the complaint, and was brought on for a hearing as a contested motion.

Appeal by the plaintiff, Edgar F. Sturtevant, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of November, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Jacob Ruppert, 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 March, 1916, in so far as it enjoins and restrains the defendant, until the 1st day of October, 1916, from foreclosing or attempting to foreclose a certain chattel mortgage held upon property belonging to the plaintiff.

<p>Appeal by the defendant, James E. Hughes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of December, 1915, upon the decision of the court after a trial at the Hew York Special Term.</p>

<p>Appeal by the defendant, Joseph J. O’Donohue, Jr., individually and 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 9 th day of March, 1916, denying his motion to vacate his order for examination before trial.</p>

Appeal by the defendant, American Optical Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1916, vacating a judgment entered herein on the 16th day of March, 1916, and granting-plaintiff a new trial on the ground of newly-discovered evidence, surprise and in furtherance of justice.

Appeal by the defendant, New York Consolidated Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1916, upon the verdict of a jury for $500.

Appeal by the plaintiff, The People of the State of New York, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of June, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, first district, dismissing the complaint herein.

Motion to resettle an order of affirmance of a judgment of the Supreme Court rendered upon the decision of the court at Special Term and to certify certain questions herein to the Court of Appeals.

Appeal by the defendant, The New York Telephone 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 28th day of February, 1916, granting relator’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, William A. Manheimer, from two orders of the Supreme Court, made at the New York Special Term and- entered in the office of the clerk of the county of New York on the 24th day of March,. 1916, one denying plaintiff’s motion for judgment on the pleadings consisting of a complaint and the demurrer thereto and the other granting defendant’s motion for judgment on said pleadings.

Appeal by the defendants, Marcus M. Marks and another, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 8th day of April, 1916, granting relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, William P. Capes, 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 April, 1916, granting plaintiff’s motion for alimony and counsel fees pendente lite.

Appeal by the defendant, George P. Butler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1916, denying his motion to vacate and set aside the service of a summons by publication and the judgment entered thereon.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Louis B. Schram and others, as executors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of November, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of November, 1915, denying defendants’ motion for a new trial made upon the minutes as resettled by a subsequent order entered in said clerk’s office on…

<p>Appeal by the defendant, The Fidelity and Casualty Com- " pany of Hew York, 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 21st day of October, 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 26th day of October, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Jehial M. Boeder, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1916, granting defendant’s motion to make the complaint more definite and certain by striking out certain allegations.

<p>Appeal by the defendant, H. S. Kerbaugh, Incorporated, 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 16th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2Yth day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 28th day of-December, 1914, directed to the Public Service Commission of the State of New York for the Second District and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in charging a part of the expense for the eliminating a grade crossing and for the construction of a new crossing upon the relator.</p>

Appeal by the defendant, John A. Snyder, as treasurer, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 27th day of May, 1915, granting a peremptory writ of mandamus requiring the defendant to issue a warrant for forty-two dollars and forty-nine cents to the relator as chief clerk of the board of elections of Ulster county.

Appeal by the defendant, North American Accident 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 Warren on the 21st day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

<p>Crime - - assault provoked by complainant — excessive sentence — evidence.</p> <p>Where defendant was convicted of assault in the third degree provoked by the complainant, but no one was injured, a sentence for a term of six months in the penitentiary is excessive.</p> <p>Verdict held to be against the weight of the evidence.</p>

<p>Crime — carrying dangerous weapon without license in violation of Penal Law, section 1897 — conviction reversed as against weight of evidence under section 527 of Code of Criminal Procedure—excessive sentence.</p> <p>Upon the trial of an indictment for the crime of carrying a dangerous weapon without a written license, a misdemeanor under section 1897 of the Penal Law, it appeared that upon defendant’s arrest on a charge of some kind and of which he was not convicted, a revolver, fully loaded, was found upon his person. The officer who arrested him, as well as the magistrate and another witness, testified that defendant stated that he did not have the license required by law when the revolver was found upon him, but the defendant testified that he intended simply to say that he did not have the license in his possession, and produced and put in evidence a license granted to him by an acting -city magistrate who also testified that he had issued and delivered to defendant the license in evidence on the day of its date. A chemical engineer, who did not pretend to be ah expert in handwriting, was permitted to testify that after a comparison of the handwriting upon the license with certain other writing of the magistrate who issued it he was of the opinion that the license was not issued upon the date therein given.</p> <p>Held, that defendant’s conviction as charged in the indictment was against the weight of evidence and the judgment should be reversed.</p> <p>Under section 527 of the Code of Criminal Procedure, authorizing the court on appeal from a judgment of conviction in a criminal action to grant a new trial if satisfied that justice so requires, the court may reverse a judgment, where the sentence imposed is excessive.</p> <p>As the punishment of defendant on conviction might range from a suspended sentence to seven years’ imprisonment (Penal Law, §§ 1931,1935), a sentence to a State prison for a term not exceeding one year and four months and not less than one year was excessive and an abuse of judicial discretion.'</p>

<p>Cross-appeals by the plaintiff, Charles L. Miller, and the defendant, Barker, Rose & Clinton Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 26th day of January, 1915, upon the verdict of a jury for $700.</p> <p>Plaintiff further appeals from an order entered in said clerk’s office on the same day denying his motion for a new trial made on the ground of the inadequacy of the damages awarded.</p>

<p>City of New York — violation of Sanitary Code — transfer of case to Court of Special Sessions—appeal — writ of prohibition.</p> <p>Where am information was laid before a city magistrate charging a defendant with a violation of the Sanitary Code of the city of New York, and the magistrate remitted the case to the Court of Special Sessions, but when the case was called in said court the defendant before plea moved to remit the case to the magistrate “on the grotmd that under the Inferior Courts Act, section 44, chapter 631 of the laws of 1916, the defendant not consenting to the remitting of the case to the Court of Special Sessions, the magistrate had no authority to remit the same, and defendant had been denied its right of hearing before the magistrate,” and its motion was denied, the defendant thereby raised the question of jurisdiction, and no sufficient cause was presented for the granting of a writ of prohibition, since ample remedy may be had by an appeal.</p> <p>In any event the question of jurisdiction could have been raised either by motion at the commencement of the trial or by motion in arrest of judgment.</p> <p>Such a case commenced by arraignment before a city magistrate cannot be transferred for trial to the Court of Special Sessions unless the defendant consent or, in default thereof, unless the city magistrate proceeds to examine such case as a magistrate.</p>

<p>Railroad—negligence — liability under Railroad Law, section 178, for defects in pavement in city street — pleading — sufficiency of complaint — demurrer — dismissal at opening of trial.</p> <p>A complaint in an action for personal injuries which alleges that the defendant was negligent in permitting and maintaining the pavement in a city street to be improperly and dangerously constructed, and to remain in an unsafe and dangerous condition, in violation of section 178 of the Railroad Law, whereby the plaintiff when driving in the street had the wheel of his vehicle caught and broken in “an abrupt break, hole or hollow,” so that the plaintiff was thrown to the pavement and injured, should not be dismissed as if demurred to for not stating a cause of action, because the dimensions of the defect were described as “ about 27" long, 6" wide and 2" deep.”</p> <p>A dismissal of a complaint at the opening of the trial, upon defendant’s motion that it does not state facts sufficient to constitute a cause of action, is, in effect, a holding that the complaint is demurrable.</p>

Appeal by the plaintiff, Jacob Zenner, 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 2lth day of October, 1915, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by tibe defendant, Virginins St. Julian Mayo, 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 May, 1916, directing defendant to answer certain questions which he had declined to answer on an examination before trial herein.

Appeal by the defendant, August Todebush, 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 April, 1916, overruling his demurrer to the complaint, and granting plaintiff’s motion for judgment on the pleadings.

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

<p>Insurance — benevolent association—by-laws — requirement that death claim be made within stated time—by-law binding upon heirs of member—knowledge of member’s death immaterial.</p> <p>The by-law of the Cigarmakers’ International Union, an unincorporated association having an insurance benefit, which provides that all claims for benefits on the death of a member shall lapse and revert to the union, unless claim is made within one year after such death, is valid, and is binding upon the heirs at law of a member who forfeits the right to a benefit by failure to make timely claim, although they did not learn of the member’s death until four years after that event.</p>

<p>Appeal by the defendant, Archibald Selwyn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1916, granting plaintiff’s motion for judgment on the pleadings, consisting of an amended complaint and the demurrer thereto.</p>

<p>Attorney and client —charging lien on cost of action— Judiciary Law-construed — only attorney of record entitled to lien —when retainer does not effect assignment of fund or create lien.</p> <p>The lien of an attorney at law upon the proceeds of an action created by sections 474 and 475 of the Judiciary Law is given only to the attorney of record.</p> <p>Hence, an attorney, not an attorney of record, but who acted merely under a written retainer to perform legal services after action brought, is not entitled to maintain a suit in equity to enforce the statutory lien. Where such retainer is merely an agreement to pay the attorney out of the recovery or settlement, it does not effect an assignment of part of the fund, nor give him a lien thereon.</p>

<p>Appeal by the defendant, Galveston, Houston and Henderson Railroad Company, from an order of the. Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of March, 1916, denying defendant’s motion to set aside the service of the summons herein.</p>

Appeal by the plaintiffs, Giuseppe Pili 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 23d day of March, 1915, upon a dismissal of the complaint by direction of the court at the close of the case.

Appeal by the defendant, Loomis-Manning Filter Distributing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 8th 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 10th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Nimrod B. Tichenor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office afjjpderk of the county of New York on the 15th day of January, 1915, upon the decision of the court after a trial before the court without a jury.

Reargument of the motion by the defendant, Paul Armstrong, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance after the rendition of a verdict in plaintiff’s favor on a trial at the New York Trial Term in June, 1915.

<p>Appeal by the plaintiff, Lambert Hubbell, 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 March, 1916, vacating an assignment.</p>

Appeal by the plaintiff, Jacob L. Grubel, as trustee, 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.25th day of June, 1915, upon the decision of the court dismissing the complaint after a trial at the New York Specia Term.

Appeal by .the defendant, Higbie Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of July, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20thday of July, 1915, denying appellant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order entered in said clerk’s office on the same day…

Appeal by the defendant, Kenneth T. Barnaby, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of Juné, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of July, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Separate appeals by the defendants, The City of New York and another, from two judgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the clerk of the county of Kings on the 31st day of December, 1915, upon the verdicts of juries in the first case for $500 and in the second case for $3,000, and also from two orders entered in said clerk’s office on the 28th and 27th days of December, 1915, respectively, denying defendants’ motions for a new trial in each case.</p>

Appeal by John J. Boylan, intervener, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of December, 1914, denying his motion to be made a party defendant herein.

<p>Will—probate — evidence—proof not establishing undue influence.</p> <p>Appeal from a decree of the Surrogate’s Court refusing probate to the alleged will of a person who had been a chronic alcoholic and which left legacies to persons not of her blood, but who had befriended her, upon a finding by a jury that the instrument was procured by undue influence. Evidence examined, and held, insufficient to establish undue influence and that the will should be admitted to probate.</p> <p>Jenks, P. J., and Putnam, J., dissented.</p>

Appeal by the defendant, William V. Cleary, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 27th day of December, 1915, convicting him of the crime of forgery in the second degree.

Appeal by the defendant, County of Westchester, 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 13th day of November, 1915, upon the decision of the court after a trial at the Westchester Special Term.

<p>Appeal by the defendant, George E. Thompson, from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 22d day of June, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of July, 1914, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 13th day of April, 1915, denying defendant’s motion for a resettlement of the case on appeal herein.</p>

Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 31st day of July, 1915, upon the verdict of a jury for $32,500, later reduced by consent to $26,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes, upon condition that…

Appeal by Ellsworth E.. Scott, as executor, and Mary Louise Scott, one of the residuary legatees, from a decree of the Surrogate’s Court of the county of Broome, entered in the office of said Surrogate’s Court on the 23d day of October, 1915, with notice of an intention to bring up for review an intermediate order sustaining preliminary objections entered in the office of said Surrogate’s Court on the 27th day of May, 1915.

<p>Insurance—fire insurance — foreign insurance companies — Insurance Law, section 49, construed—term “ agent” defined—when broker not agent of company—liability of company for information received by broker during negotiations.</p> <p>The purpose of the definition of the term “agent” contained in section 49 of the Insurance Law appears to be not to establish the relation of principal and agent as between a foreign insurance company and a person who seeks to place with it insurance as broker for the insured, but rather to regulate and control the business of foreign insurance companies in this State.</p> <p>The terms of said section are given their full effect and meaning when the term “agent” appearing in other sections is held to include “any broker whose business in whole or in part is to negotiate for and place risks, deliver the policies covering the same and collect premiums therefor.”</p> <p>In view of the history of section 49 of the Insurance Law, the phrase “ and any broker whose business, in whole or in part, is to negotiate for and place risks ” does not refer to such negotiations in behalf of the company, but in behalf of the applicant for insurance whom the broker represents, and so in any event does not make the broker an agent for the company in such negotiations, even if he becomes the agent of the company to deliver the policies and collect the premiums. Under such construction, the company is not chargeable with information which the broker receives during negotiations, but only with such as he acquires in delivering the policy and collecting the premium.</p> <p>A broker in negotiating for the insurance policy in behalf of a person desiring insurance, is the agent of that person and not of the insurer.</p> <p>In an action against a foreign insurance company to recover for damage to the plaintiff’s automobile by fire, it is error for the trial court to instruct the jury as matter of law that the insurance broker and his solicitor who secured the policy through plaintiff’s agent were agents of the defendant. If they were in fact brokers in the transaction and not authorized to represent and act for defendant, then they did not become defendant’s agents by virtue of section 49 of the Insurance Law, and any knowledge or notice received by them from plaintiff in the course of soliciting the policy and preparing the application is not to be imputed to defendant.</p>

Appeal by Chloe A. Brotherton, landowner, from an order of the County Court of Delaware county, entered in the office of the clerk of said county on the 19th day of July, 1915, confirming the report of the commissioners herein.

Appeal by the defendant, The Com Exchange Bank, 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 31st day of January, 1916, affirming a judgment of the City Court of the City of New York in plaintiff’s favor.

Appeal by the defendant, Achilles Persian, as treasurer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of March, 1914, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 26th day of March, 1914, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Robert Adamson 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 29th day of November, 1915, granting relators’ motion for an alternative writ of mandamus requiring the appellants to pass upon the application of the petitioners, and if found otherwise to conform to the requirements of the law to issue to them a garage permit irrespective of whether or not they have installed in their garage an oil separator or similar apparatus.</p>

Appeal by the intervenor, Wilbur F. Sadler, 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 30th day of March, 1916, which order denied the appellant’s motion: (1) To intervene and become a formal party to the action.

<p>Personal property—Bulk Sales Law—statute construed — statute available only to existing creditors — construction — intent.</p> <p>The so-called Bulk Sales Law (Pers. Prop. Law, § 44), making such sales void unless the provisions of the statute are complied with, can be availed of only by persons who were creditors at the time of the sale, and it is not available to persons who may thereafter become creditors by the happening of a contingency.</p> <p>Thus, a landlord whose tenant has made a bulk sale without complying with the requirements of the statute cannot have the sale set aside as a creditor for rent accruing after the sale.</p> <p>As the statute is in derogation of the common law, it must be strictly construed.</p> <p>The statute as it now stands declares a transfer made in violation thereof absolutely void, irrespective of any fraudulent intent on the part of the transferor.</p>

Appeal by the defendants, The City of Binghamton and others, from an order of the Supreme Court, made at the Broome Special ■ Term and entered in the office of the clerk of the county of Broome on the 12th day of January, 1916, overruling their demurrer to the complaint.

<p>Civil service — discharge of veteran fireman — abolition of unnecessary-position by State officer — Civil Service Law construed — when veteran entitled to transfer to other position.</p> <p>Where it is admitted that the State Superintendent of Public Works, by abolishing the position of one of three reservoir tenders and placing his duties upon the other two employees, saved $300 a year to the State, the good faith of the Superintendent in abolishing the position is established, and indicates that the discharge of the employee was not made because of political bias.</p> <p>Every public official has an inherent right and a right under the Civil Service Law to abolish positions for reasons of economy.</p> <p>Tire fact that an employee is a veteran fireman does not require that he be continued in the State service in a useless position.</p> <p>Although the Civil Service Law requires a veteran employee to be transferred for duty in such position as he may befitted to fill, there must be another position vacant to entitle him to a transfer, and a public official is not obliged to discharge other employees to open a position for a veteran.</p>

Appeal by the defendants, William W. Hawkes and another, from an award of the Workmen’s Compensation Commission, entered in the office of said Commission on the 9th day of December, 1914.

• Appeal by the plaintiff, Cora.W. Keyes, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 7th day of December, 1915, denying a motion for a retaxation of costs.

<p>Public officers—constitutional law—effect of failure , to file oath of office — municipal corporations—health officer, city of Amsterdam.</p> <p>A person appointed health officer of the city of Amsterdam must take and subscribe the constitutional oath of office as required by the Constitution and statutes of this State.</p> <p>Upon his refusal or neglect to ñle the official oath within fifteen days after the commencement of his term of office, the office becomes ipso facto vacant, without judicial procedure or notice, and the vacancy may be then filled by the proper appointive power.</p>

<p>Crime—receiving stolen goods — evidence—uncorroborated testimony of accomplices—new trial—newly-discovered evidence.</p> <p>A person cannot be convicted of the crime of receiving stolen goods on the uncorroborated evidence of the thieves, for they are his accomplices. Newly-discovered evidence examined, and held, that a judgment convicting the defendant of receiving stolen goods, based chiefly on the testimony of accomplices, should be vacated and a new trial granted.</p>

<p>Municipal corporations — Second Class Cities Law, section 180, construed— police justices — city of Binghamton — criminal branch of City Court continued — taxpayer’s action.</p> <p>Section 180 of the Second Class Cities Law, providing that if, under general or local laws there now exists or shall hereafter be established in the city a court of criminal jurisdiction known as the Police Court, it shall have the jurisdiction and powers hereinafter provided, was not intended to establish new courts, but merely to prescribe the jurisdiction and powers of such local criminal courts as are already in existence by virtue of previous city charters.</p> <p>Hence, when the city of Binghamton, having obtained a population of 50,000 inhabitants, automatically became a city of the second class, the former City Court, having a city judge clothed with civil and criminal jurisdiction, was not abolished and the new charter did not require the election of a police justice or the establishment of a separate Police Court.</p> <p>Section 74 of the Code of Criminal Procedure regulating the jurisdiction of police justices was not effective to create a court of criminal jurisdiction known as the Police Court in the city of Binghamton.</p> <p>Where a police justice for the city of Binghamton was illegally elected owing to a misapprehension as to the effect of the Second Class Cities Law, a taxpayer may maintain an action to have a tax levied to pay the salary declared illegal and void, and to restrain the collection of the same.</p>

Appeal by the defendants, William A. Jamison and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of April, 1916, denying their motion for a separate and prior trial of the issues raised by the defense of a general release pleaded herein.

<p>Certiorari issued out of the Supreme Court and attested on the 4th day of March, 1916, directed to Hernán M. Purdy and others, constituting the board of supervisors of the county of Eockland, commanding them to certify and return to the office of the clerk of the county of Eockland all and singular their proceedings had in disallowing the claim of the relator against the county.</p>

Appeal by the defendants, Arthur Woods, as police commissioner, and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of May, 1916, granting relator’s motion for a peremptory writ of mandamus.

Appeals by the defendant, The City of New York, from three judgments of the Supreme Court in favor of the respective plaintiffs, entered in the office of the clerk of the county of Queens on the 13th day of April, 1915, upon the verdict of a jury. The verdict in the first case was for $1,500; in the second case for $2,500, and in the third case for $500.

Appeal by the defendant, The Yonkers Electric Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of June, 1915, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Q-. McLoughlin, 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 2d day of June, 1915, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 26th day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.

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

Appeal by the defendant, Daniel Edwards, from a judgment of the County Court of Queens county, rendered against him on the 5th day of February, 1915, upon a general verdict of “guilty” under an indictment charging him with rape in the first degree and assault in the second degree.

Appeal by Rose Windsor and others from an award of the State Industrial Commission, entered in the office of said Commission on or about the 5th day of August, 1915, and also from a further award and order entered therein on or about the 26th day of August, 1915. ■

Appeal by the plaintiff, Leon Montwil, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 9th 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, Elsie E. Lyman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 16th day of February, 1915, upon a dismissal of the complaint by direction of the court at the close of the case, certain specific questions having been submitted to and answered by the jury, and also from the order entered in said clerk’s office on the 13th day of February, 1915, dismissing the…

Appeal by the defendants, Henry F. Birgel and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings.

<p>Appeal by the defendant, Moy He, from a judgment of the Supreme Court, rendered against him on the 13th day of October, 1915, convicting him of the crime of perjury, with notice of an intention to bring up for review certain orders made in the action severally denying his motions to dismiss the indictment, to direct a verdict in his favor, and for a new trial.</p>

<p>Will — trust of personalty—vested remainder.</p> <p>Where a testatrix leaves personal property in trust during the life of her daughter, directing the trustees “to pay her the net income thereof semi-annually during her life, and upon her death to pay and transfer the principal thereof to her lawful issue, or in default of such issue to divide the same equally among her brothers and sister, the descendants of any deceased brother or sister to take the share their parent would have been entitled to if living,” the son of the daughter living at the execution of the will did not take a vested remainder, and, hence, upon his death prior to the death of his mother, leaving no issue, his interest should be paid to his sister, she being the only issue of the life beneficiary when the trust terminated.</p> <p>Where there is a gift of personalty to a class distributable on a future event, that class consists of those who answer the description and are capable of taking at the time of the distribution.</p>

Certiorari issued out of the Supreme Court and attested on the 4th day of December, 1915, directed to the Public Service Commission of the State of New York, Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in directing the relator by an order made on the 28th day of October, 1915, to maintain and operate a certain side track on its premises at Dundee, Yates county, N. Y.

Appeal by the relator, Michael J. McNeles, 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 31st day of March, 1916, denying his application for a peremptory writ of mandamus to compel the board of supervisors of Rensselaer county to restore him to his position as laborer on the bridge between Troy and Cohoes.

Appeal by the plaintiff, James Ackroyd & Sons, 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 22d day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Question certified to the Appellate Division for decision by the State Industrial Commission under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41).</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 17th day of January, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of January, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

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

Appeal by the defendants, Richmond Light and Railroad Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 3d day of February, 1916.

<p>Appeal by Katherine B. Groot, as administratrix with the will annexed of Cathelina E. Groot, deceased, from a decree of the Surrogate’s Court of Albany county, entered in the office of said Surrogate’s Court on the 23d day of December, 1915, construing and holding valid the 10th item of said will.</p>

Appeal by the defendants, William Speeks and another, from a judgment of the County Court of Nassau county, rendered against them on the 16th day of November, 1915, convicting them of the crime of rape in the second degree.

<p>Prohibition — when writ lies to restrain proposed action of court — indictment — grounds of demurrer — power of court to strike out scandalous and irrelevant matter not charging crime — when writ of prohibition does not lie.</p> <p>The writ of prohibition is an appropriate remedy where it specifically appears to the Appellate Division that a justice of the court having original jurisdiction is about to act beyond its legitimate powers, and in excess of its jurisdiction.</p> <p>A defendant in a criminal action cannot demur to an indictment upon the ground that on the face thereof the facts stated do not constitute a crime, if, in fact, the facts stated in any count thereof do constitute a crime, for a demurrer must lie, if at all, to the whole of the indictment.</p> <p>Hence, where one or more counts of an indictment set out a crime, the defendant cannot demur because other counts contain scandalous and irrelevant matter not constituting crime.</p> <p>Nor under the circumstances can the defendant demur on the ground that more than one crime is charged in the indictment, within the meaning of section 378 or 379 of the Code of Criminal Procedure.</p> <p>Nor does a demurrer lie under sections 375 and 376 of the Code of Criminal Procedure relating to substantial deficiencies.</p> <p>Although there is no authority therefor in the Code of Criminal Procedure, the court in its inherent jurisdiction over practice and procedure may entertain a motion to strike from an indictment scandalous and irrelevant matter not charging a crime.</p> <p>Hence, an absolute writ of prohibition will not issue to prevent a justice from striking out such matter.</p>

<p>Appeal by the claimant, Jane A. Allen, from a decision or award of the State Industrial Commission, dated the 16th day of December, 1915, denying her compensation for the death of her son, Charles R. Allen.</p>

Appeal by the plaintiff, Lottie 0. Graham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 13th day of October, 1915, dismissing the complaint upon the decision of the court after a trial at the Washington Special Term, and also from an order entered in said clerk’s office on the 11th day of November, 1915, denying her motion for a new trial. The action was brought for an absolute divorce.

<p>Appeal by the plaintiff, Fitzgibbons Boiler 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 28th 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 2d day of July, 1915, granting defendant’s motion for the direction of a verdict.</p>

Appeal by the plaintiffs, Epaphras L. Barber and others, and by the defendants, Edwin L. Barber and others, from parts of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Westchester on the 13th day of July, 1915, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by John M. Lyon, as executor, and others, from parts of an amended decree and order of the Surrogate’s Court of the county-of Westchester, entered in the office of the clerk of said county on the 9th day of March, 1916.

<p>Public service corporation —electric lighting corporation —franchise requiring company to furnish free lights to municipality — submission of controversy — when rights of parties not determined owing to insufficient agreement as to facts — provisions of franchise construed.</p> <p>Where the franchise given by a municipality to an electric lighting company required it to furnish free to the city “at such places as the Common Council may designate one electric arc lamp for each and every twenty-five subscribers,” and also required the lighting company to file annually with the city clerk a report of the names and number of its subscribers, and the company has never complied with these requirements, the court will not determine the rights of the municipality as against the lighting company or render judgment for damages for nonperformance on a submission of controversy under section 1979 of the Code of Civil Procedure, if the facts agreed upon are not sufficiently full and complete to admit of a determination by the court.</p> <p>It seems, however, that the defendant may be liable for its failure to perform the requirements of its franchise and may be compelled to do so.</p> <p>It seems, moreover, that the requirement that the defendant file annually a report of the names and number of subscribers was a prerequisite to a designation by the common council of the places where the free lights were to be placed.</p> <p>It seems, also, that the defendant was not freed from the obligations of its franchise by the fact that it had subsequently changed its electric lighting system with the advance of the art and had installed meters and charged customers for current actually consumed, rather than at a fixed rate per annum as previously.</p>

Appeal by the defendant, The Mount Vernon Trust Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 19th day of November, 1915, overruling its demurrer to the complaint. *

Appeal by the defendant, Commercial Advertiser Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 17th day of February, 1915, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, New Jersey and Staten Island Ferry 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 4th day of November, 1915, upon a decision of the court after a trial at the Kings County Special Term.

Appeal by the relator, Alvin Pasco, from an order of the County Court of Clinton county, entered in the office of the clerk of said county on the 10th day of June, 1915, dismissing the writ of habeas corpus herein and remanding the relator to custody.

Appeal by Nicholas J. Powers 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 31st day of March, 1916, denying his motion for a peremptory writ of mandamus.

<p>Master and servant—Labor Law, section 200, as amended by Laws of 1910, chapter 352 — sufficiency of complaint under — relation of master and servant—judgment for plaintiff reversed.</p> <p>An allegation in a complaint for personal injuries, that the floor of defendant’s private garage, to which plaintiff was called to repair a ear, was wet, dirty, greasy and unhealthful, necessitating that he work on the ear from above, and that while so engaged he was injured, is not an allegation of any “ defect in the condition of the ways, works, machinery or plant, connected with or used in the business of the employer,” within the meaning of section 200 of the Labor Law, as amended by chapter 352 of the Laws of 1910.</p> <p>The employment of plaintiff for a few hours in a particular piece of work was a special one and the relation of master and servant, in the sense of the Employers’ Liability Act, did not exist between him and the defendant.</p> <p>Evidence examined, and held, that the facts pleaded did not bring the case within the Employers’ Liability Act, and that no common-law liability could by any reasonable intendment be deduced therefrom, and that a judgment entered upon a verdict in favor of plaintiff should be reversed and a new trial ordered with a disapproval of a finding that defendant was negligent and that plaintiff was free from contributory negligence.</p>

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 26th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of November, 1915, denying defendant’s motion for a new triaLmade upon the minutes.

Appeal by the defendants, A. Steinhardt & Bro., Inc., and another, from an award of the State Industrial Commission, made on the 21st day of December, 1915, granting to claimant six weeks’ compensation for an injury he received while riding in a public bus from White Plains to Port Chester.

<p>Power of attorney — under power to sell may give chattel mortgage to secure antecedent debt.</p> <p>A power of attorney will not be so strictly construed as to defeat its purpose.</p> <p>Under a power of attorney, which is practically a carte blanche given by a husband when no longer able by reason of illness to manage his business, to his wife, empowering her to manage and sell it and any or all of his personal property, she may give a chattel mortgage upon the property to secure an antecedent debt.</p> <p>Appeal by Cecil V. McArthur, as executrix, and another, from a decree of the Surrogate’s Court of the county of Franklin, entered in the office of said Surrogate’s Court on the 28th day of October, 1915, surcharging the accounts of the executrix herein with the sum of $4,100.33 and directing the Small-man & Spencer Company, Inc., to pay over to said executrix the said sum for distribution among the other creditors of the estate.</p>

Appeal by the plaintiff, Richard Bennett, from an order of the County Court of Hamilton county, entered in the office of the clerk of said county on the 28 th day of February, 1916, denying his motion to vacate and set aside the judgment of said court entered in the office of the clerk of the county of Hamilton on the 5th day of October, 1915.

<p>Appeal by the defendant, John. L. Smith, individually and as executor, from a judgment of the County Court of Erie county in favor of the defendant Lyman 0. Smith, entered in the office of the clerk of said county on or about the 11th day of July, 1913, and also from an order of said court entered in the office of the clerk of said county on the 10th and 31st days of January, 1916, denying his motion for a new trial made upon the minutes.</p> <p>Appeal by the defendant, Lyman 0. Smith, from an order of the Comity Court of Erie county, entered in the office of the clerk of said county on the 31st day of January, 1916, granting a motion made by the defendant John L. Smith, and also from an order of the former county judge of Erie county, entered in the office of the clerk of said county on the 3d day of February, 1916, denying a motion made by the defendant Lyman C. Smith.</p>

Appeal by the plaintiff, The General Fireproofing Company, from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Albany on the 8th day of March, 1916, as adjudges that the assignment to the New York State National Bank, Albany, from The Keepsdry Construction Company, was properly filed, and from so much of said judgment as directs that.

Appeal by the defendants, John Grimaldi andanothér, from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 31st day of December, 1915, setting aside a prior order entered in said clerk’s office on the 11th day of November, 1915, which prior order required the guardian ad litem to give security for costs.

Appeal by the defendant, William Carl Tiedeman, 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 April, 1916, denying his motion for an order directing the city chamberlain of the city of New York to pay over to him certain funds on deposit in this action.

Appeal by the plaintiff, Joseph Waisikoski, from an order of the Supreme Court, made at the Richmond Trial Term and entered irf the office of the clerk of the county of Richmond on the 14th day of February, 1916, dismissing his complaint at the opening of the trial.

<p>Appeal by the plaintiff, Gustav Gardner, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of May, 1916.</p>

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

Appeal by the defendants, the Board of Trustees of the Yonkers Public School Teachers’ Retirement Fund Association and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 17th day of February, 1916, granting a peremptory writ of mandamus.

Appeal by the plaintiff, Adella F. Benedict, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Madison on the 26th day of July, 1915, upon the report of a referee appointed to hear and determine the issues. The action was for trespass.

Appeal by the plaintiff, Cora Willis, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 9th day of November, 1915, sustaining a demurrer to the complaint upon the decision of the court after atrial at the Cayuga Special Term.

Appeal by Arthur Woods, as police commissioner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1916, granting relator’s motion for a peremptory writ of mandamus.

<p>Appeal by Thomas B. Kent and another, as trustees, from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 10th day of November, 1915, directing a partial distribution to Beatrice B. Moore of her one-fourth interest in this estate.</p> <p>Appeal by Beatrice B. Moore from so much of said decree as limits the distribution to her at this time of $25,000 in cash.</p>

Appeal by the plaintiff, M. Louise E. Oaks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 7th day of April, 1915, upon the decision of the court dismissing the complaint on the merits after a trial at the Monroe Equity Term.

Appeal by the defendants, Rochester Trust and Safe Deposit (Company, individually and as executor and trustee, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 3d day of November, 1915, upon the decision of the court after a trial at the Monroe Equity Term. Each of the defendants appeals from so much of said judg. ment as affects himself.

Appeal by the defendants, George Hyatt Robinson and. others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 14th day of November, 1914, upon the report of a referee in an action for an accounting. Appellants also appeal from the report of the referee dated the 8th day of December, 1913, and from his amended report dated the 28th day of September, 1914.

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

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

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

<p>Appeal by the plaintiff, Isidor Halpern, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of November, 1915, denying plaintiff’s motion for judgment on the pleadings and granting defendant’s motion for judgment thereon after a demurrer had been interposed to the complaint.</p>

Appeal by the defendant, William A. Prendergast, as comptroller, 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 May, 1916, granting relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the defendants, 0. E. Mills Oil 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, as amended on the 33d day of December, 1915, and also from an order entered in said clerk’s office on the 14th day of December, 1915, denying the defendants’ motion for a new trial" made upon the minutes. The judgment was entered upon the verdict of a jury.</p>

<p>Motion by the plaintiff, Times Square Improvement Company, Inc., for judgment upon a verdict rendered in March, 1916, subject to the opinion of the court after a trial in the City Court of the City of New York, Part 3, or in the alternative for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance.</p>

Appeal by the defendant, Henry D. Schumacher, 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 23d day of February,- 1916, affirming a judgment of the City Court of the City of New York entered on the 16th day of October, 1915, upon the verdict of a jury for $1,000, and also affirming an order denying defendant’s motion for a new trial.

Appeal by the plaintiff, Robert A. Beatty, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of January, 1916, affirming a judgment of the City Court of the City of New York in favor of the defendant individually, and also affirming an order denying plaintiff’s motion for a new trial.

<p>Appeal by the plaintiff, Alfred Zimmermann, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of November, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of November, 1914, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Buck Run Coal 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 21st day of February, 1916, denying defendant’s motion to set aside the service of a summons and the summons itself.

Appeal by the defendant, William Gr. Lyle, from an interlocutory judgment and order of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1916, overruling a demurrer to the complaint.

Appeal by the defendant, G. P. Putnam’s Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 8th day of December, 1915, upon the verdict of a jury for $2,000, 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.

Appeal by the defendant, Richmond Light and Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1916, upon the verdict of a jury for $625, and also from an order entered in said clerk’s office on the 11th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Louis D. Livingston and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1915, upon the decision of the court after a trial at the New York Special Term in an action to foreclose a mortgage on real property.</p> <p>Appellants give notice of an intention to bring up for review an order of a justice of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of May, 1915.</p>

<p>Pleading — complaint — amendment — time within which to plead to amended complaint — motion to strike cause from calendar.</p> <p>Where in an action for damages for the defendants’ refusal to comply with a contract by which they undertook to furnish certain merchandise to the plaintiff, the latter did not allege that it had performed conditions of the contract on its part to be performed and this objection was taken by the defendants by a motion to dismiss the complaint and was renewed at various times during the trial and all the objections were overruled, but at the close of the plaintiff’s case the trial court reconsidered its decision and allowed the plaintiff to amend by alleging performance, the defendants were entitled to full twenty days after such amendment within which to answer or demur.</p> <p>The court not having directed that the ease retain its place on the calendar and the defendants having elected to demur, them motion to strike the case from the calendar should have been granted.</p>

Appeal by the defendants, Peter Burden and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1915, upon the decision of the court after a trial at the New York Special Term.

Appeal by the claimant, Gaetano Ingrassia, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of March, 1916, upon the verdict of a jury rendered by direction of the court declaring liquors seized at No. 1073 First avenue, New York city, to be a nuisance and forfeited to the State.

Appeal by the assignee, Albert B. Cory, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lYth day of April, 1916, directing him to pay over to Samuel Mandelbaum, as receiver in proceedings supplementary to execution, the sum of $400 and further removing him as assignee for the benefit of creditors.

Appeal by the plaintiff, Desire E. Szakvary, from an order of the Supreme Court, made at the ¡New York Trial Term and entered in the office of the clerk of the county of New York on the 3d day of April, 1916, denying his motion to restore the cause to the trial calendar.

Appeal by the plaintiff, Anna Whitson, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1916, striking this cause from the trial calendar and placing it upon the Special Term calendar on the ground that the action is triable by the court without a jury.

<p>Appeal by the plaintiffs, Jacob Bummell 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 31st day of March, 1916, denying their motion for leave to serve a supplemental complaint.</p>

Appeal by the plaintiff, William F. Wightman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of May, 1916, granting a motion to vacate an order for the examination of the defendants before trial.

<p>Limitation of actions—six-year Statute of Limitations—action for value of property converted.</p> <p>In an action to recover the value of certain personal property delivered by the plaintiffs to the defendants and for an accounting, it appeared that the property came rightfully into possession of the defendants; that they refused to accept it and so notified the plaintiffs; that subsequently plaintiffs notified the defendants to return or reship the property to another party; that the defendants having pledged the property without the knowledge of the plaintiffs, did not return it; that they subsequently received other shipments from the plaintiffs and applied them toward the payment of the drafts on the first shipment and expenses connected therewith, but there was no concealment of the fact that the property was not returned.</p> <p>Held, that upon the application by the defendants of the subsequent shipments to the payment of the drafts they became obligated to comply with the plaintiffs’ demand for the return or reshipment of the property and their failure so to do constituted a conversion.</p> <p>The fact that the plaintiffs did not know that the property had been pledged after the refusal of the defendants to return did not prevent the six-year Statute of Limitations running against the action for conversion.</p> <p>Since the action was not commenced within six years after the fact of the conversion became known to the plaintiffs, the Statute of Limitations is a bar to its maintenance.</p>

Appeal by David Peltz 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 30th day of July, 1915, confirming a supplemental and amended report of a referee in a proceeding to open a street,

Appeal by the defendant, John Donnelly, from a judgment of the Court of Special Sessions of the City of New York, borough of Queens, rendered against him on the 28th day of December, 1915, convicting him of the crime of unlawfully possessing heroin.

<p>Civil service — ground for dismissal of employee—insubordination of clerk in district attorney’s office — mandamus — effect of failure to demur.</p> <p>The cause assigned for the discharge of a civil service appointee must be some dereliction of duty, or something affecting his character and fitness for his position. The charge must be based on substantial grounds and should be specific in form.</p> <p>A charge that a clerk in a district attorney’s office is arrogant, dictatorial and offensive to his fellow-employees and superiors, if established, shows insubordination, which justifies his removal.</p> <p>The hearing oí charges before the head of a department is not a trial, and the charges preferred need not be formal, as in an indictment or complaint.</p> <p>Where the return to an alternative writ of mandamus to compel the reinstatement of the civil service appointee admitted the correctness of the charges as set forth by the relator, by a failure to demur, there is an admission of the formal sufficiency of the charges.</p>

<p>Appeal by the defendants, Sam Wember and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 25th day of May, 1915, upon the decision of the court after a trial at the Kings County Special Term.</p>

Appeal by the defendants, Harry T. Conklin and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 29th day of November, 1915, upon the verdict of a jury rendered by direction of the court after the complaint had beep dismissed as against one of the defendants, and also from an order entered in said clerk’s office on the 1st day of December, 1915, denying defendants’ motion for a new…

Appeal by the plaintiff, Van D. Macumber, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case. The action was brought to recover for the alleged conversion of an automobile. Defendant’s answer denied the allegations of plaintiff’s ownership and of the alleged conversion.

Appeal by the defendant, Sarah L. F. David, as executrix, from a judgment of the'Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 8th day of February, 1916, upon the decision of the court after a trial at the Columbia Trial Term before the court without a jury.

Appeal by the defendants, Harry Aronson and another, from a judgment of conviction of the Court of Special Sessions of the City of New York, PartH, entered on the 15th day of June, 1915.

Appeal by Julia Langdon and another from an order of the County Court of Warren county, entered in the office of the clerk of said county on the 13th day, of April, 1916.

<p>Appeal by James 0. Doubleday and another, as administrators, from a decree of the Surrogate’s Court of the county of Otsego, entered in the office of said Surrogate’s Court on the 23d day of November, 1915, upholding and allowing respondent’s claim to the extent of $1,334.50, with costs.</p>

<p>Appeal by the plaintiff, Samuel R. Rhodes, from an inter- • locutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of January, 1916, sustaining a demurrer to the complaint 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 15th day of December, 1915.</p>

Appeal by the defendant, Ferdinand Munch Brewery, 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 January, 1916, upon the verdict of a jury rendered by direction of the court after a single question had been submitted to the jury and its verdict thereon taken, and also from an order entered in said clerk’s office on the 27th day of January, 1916, as resettled by an order entered…

Appeal by the defendant, Pease & Elliman, Inc., from a judgment of the Court of Special Sessions of the City of New York, rendered against it on the 22d day of March, 1916, convicting it of a misdemeanor.

Appeal by the defendants, Theresa Alice Oelriohs and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 17th day of June, 1915, resettling a prior order entered in said clerk’s office on the 8th day of June, 1915, which denied then- motion for judgment on the reply herein as frivolous and for an order striking out the said reply as sham.

Appeal by the plaintiff, Emma C. Arnold, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 12th day of August, 1914, upon the decision of the court after a trial at the Westchester Special Term in a suit to enjoin the defendant from trespassing upon two parcels of land in White Plains, N. Y., over which defendant had built and run its electric railroad.

Appeal by the plaintiff, Arthur Gr. Erlanger, 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 W estchester on the 20th day of March, 1916, granting defendant’s motion for alimony and counsel fees herein. Appeal by the plaintiff, Arthur G-.

Appeal by the defendants, Edmund B. Wells and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18tli day of May, 1916, upon the decision of the court after a trial at the New York Special Term. The judgment construed the will of Joseph E. Bulkley, deceased.

<p>Municipal corporations — city of New York—Greater New York charter, section 790, as amended, construed—right of fireman, partially disabled in active discharge of duties at fire, to employment not requiring active service.</p> <p>Section 790 of the Greater New York charter, as amended, substantially providing that “ In case of partial permanent disability caused by the active discharge of duty, disqualifying him only from performing active duty in the uniformed force, he shall be employed at his regular salary in some position not requiring active service as a fireman,” was enacted for the benefit of those only whose disability was the direct, immediate result of active fire duty.</p> <p>A fireman having been injured in the active discharge of his duty at a fire, is entitled to the benefit of the above provision, notwithstanding a certificate of the board of medical officers that said fireman is “totally permanently physically disqualified for the performance of his duties as a member of the uniformed force,” because said certificate is not a certificate that he is totally permanently physically disqualified for the performance of duty “in some position in the department not requiring active service as a fireman.”</p>

Certiorari issued out of the Supreme Court and attested on the 8th day of March, 1915, directed to the Public Service Commission of the State of New York for the First District and to the members thereof commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in directing the establishment and maintenance of a station on the Long Island railroad at South street, Jamaica.

<p>Appeal by the defendants, Siegmund Lubin 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 7th day' of April, 1916, upon the decision of the court after a trial at the New York Special Term, with notice of an intention to bring up for review their exceptions to the findings of fact and conclusions of law contained in the decision of the court, and also, as .stated in' the notice of appeal, an appeal is taken from the decision "of the-court.</p> <p>The judgment directed the cancellation'of a Contract, enjoined the defendants and directed them to account to plaintiff.</p>

Appeal by the plaintiff, Sacandaga Realty Corporation, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of March, 1916, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, first district. An appeal is also taken from the judgment of the Municipal Court.

Appeal by the plaintiff, Eastern New York Wet Wash Laundry Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1916, vacating a temporary injunction and denying a motion for an injunctionpenderofe lite.

Appeal by the plaintiff, Lonis Guenther, 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 11th day of May, 1916, declaring null and void and of no effect the attempted service of a second amended complaint.

<p>Principal and agent — accounting — right of insurance company to accounting by agent — fiduciary relationship — evidence — burden of proof — contract —letter not constituting contract.</p> <p>The relation existing between a fire insurance company and a general agent bound to render monthly statements or accounts is fiduciary and the company is entitled to maintain a suit against the agent for an accounting.</p> <p>In such a suit the burden is upon the agent to show that he has turned over to the plaintiff all of the moneys collected by him and to which it is entitled.</p> <p>The fact that such agent has rendered from time to time statements which have been retained without objection does not deprive the company of its right to have a full and complete account of its agent’s dealings if it so desires.</p> <p>It is not necessary for the company to show that anything will be found due in order to obtain an accounting. It is sufficient that the fiduciary relation exists between the parties.</p> <p>Where a letter, stating that the writer is agreeable to the appointment of a certain person as manager on certain terms and that formal agreement will be submitted in a day or two, is indorsed by the person to whom it was addressed as follows: “ The foregoing is accepted this day,” and signed by said person, and no formal contract is ever presented, such letter with the indorsement thereon does not constitute a contract and hence is insufficient as a basis for an accounting between the parties.</p>

Appeal by the defendant, Jules Breuchaud, from a judg. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1915, upon the verdict of a jury for $2,177.39, .rendered by direction of the court.

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

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

Appeal by the defendant, The Texas 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 17th day of January, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, New York County National Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of January, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 28th day of May, 1915, directed to the Public Service Commission of the State of New York for the First District and to the members thereof, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in denying the petition of the relator for leave to abandon certain franchises.

<p>Attachment—pleading — complaint in aid of attachment to reach cancellation value of lapsed life insurance policies — right of judgment creditor to proceeds of policies — remedy for defect of parties plaintiff — demurrer. 6</p> <p>Where a complaint, in an action in aid of an attachment and to reach the “ cancellation value ” of certain life insurance policies on the life of the judgment debtor, reserving the right to change the beneficiaries therein, alleges that at the time of the lapse of the policies for failure to pay premiums thereon there remained a “net equity” of a certain amount, but contains no allegation as to the manner in which said amount was arrived at, nor any provision of the policies quoted under which that or any other sum became payable to the insured upon the lapse of the policies or by which the interest of the beneficiary therein ceased or became extinguished, and there is no allegation from which it can be found that defendant insurance company is under a present legal duty to pay any one any sum whatever, and it does not appear in whose possession the policies are or that they can be surrendered to the defendant, the complaint does not state a cause of action.</p> <p>The rule that a trustee in bankruptcy succeeds to all the rights of the bankrupt in life insurance policies, including the reserved right to change the beneficiary, does not apply to a single judgment creditor who can only reach the insured’s property.</p> <p>Where a defect in parties plaintiff appears upon the face of the complaint the proper remedy for the defendant is to demur. It is only where such defect does not appear on the face of the complaint that the objection may be taken by answer. Such objection is waived only when it is taken neither by demurrer nor answer.</p> <p>A plaintiff cannot demur to part of an answer only.</p> <p>A demurrer searches the record for the first fault in pleading, and reaches back to condemn the first pleading that is defective in substance, because one who does not so plead as to invite an issue cannot compel his adversary to so plead as to accept it.</p>

Appeal by the defendant, The Western Union Telegraph 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 February, 1916, overruling a demurrer to the amended complaint.

<p>Appeal by the plaintiff, William T. Emmet, as Superintendent of Insurance, 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 22d day of May, 1915, upon the decision of the court after a trial at the New York Special Term.</p> <p>The plaintiff sued in behalf of the Title and Guarantee Company of Rochester, seeking to cancel a note for $50,000 purporting to have been made by the said Title and Guarantee Company to the Northern Bank of New York. The judgment dismissed the complaint and granted judgment on defendant’s counterclaim for the amount of the note, interest and costs.</p>

<p>Sale —action to recover value of property sold — authority of purchasing agent — evidence.</p> <p>Where in an action to recover the value of property claimed to have been sold to the defendant the plaintiff, in order to establish the sale, is obliged to rely upon the authority of defendant’s purchasing agent "who had no express authority to make the purchase, and the undisputed testimony is that he only investigated prices and conditions in the market and reported them to defendant’s general manager who then authorized him to purchase goods, it is reversible error to refuse to allow the defendant to corroborate this testimony by that of the general manager and to refuse to allow the defendant to show the details of the method of doing business as between the purchasing agent and the general manager, and that the general manager had not authorized the purchasing agent to procure the property in question.</p>

Appeal by the defendant, John A. Larkin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of July, 1915, sustaining a demurrer to certain defenses and to a counterclaim contained in the second amended answer of the appellant.

<p>Appeal by the defendant, Thomas A. Larkin, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of July, 1915, sustaining plaintiff’s demurrer to certain defenses and to a counterclaim contained in the second amended answer of the appellant.</p>

<p>See head note in McCready v. Larkin (ante, p. 847).</p>

<p>Appeal by the defendants, Lawrence Mulligan and another, as executors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of March, 1916, denying defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order entered in said clerk’s office on the 17th day of March, 1916, granting plaintiff interest on the jury’s verdict.</p>

Appeal by the defendant, Levy Dairy Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1916, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 25th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, George C. Taylor, as president, from an award of the State Industrial Commission, entered in the office of said Commission on the 2d day of February, 1916.

<p>Appeal by the defendant, The Delaware and Hudson 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 12th day of May, 1916, denying defendant’s motion to require plaintiff to give security for costs.</p>

Appeal by the defendant, Joseph B. Mayer, from a judgment of the Supreme Court in favor of the plantiffs, entered in the office of the clerk of the county of- New York on the 29th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Executors and administrators — trusts — right of executors and trustees to triple and double commissions.</p> <p>Where a testator bequeaths money in trust for a life beneficiary and upon the latter’s death directs that a portion of said money shall be paid to certain persons and that the balance “shall be paid over” to the executors to be held in trust during the respective lives of designated beneficiaries, the executors, who also acted as trustees, are not entitled to triple commissions upon the balance of the money. This because the “ paying over" of the money by the trustees to them was a matter of mere bookkeeping and amounted to nothing more than retaining in their own hands certain securities in which the money had already been invested.</p> <p>Where executors are directed to hold money in trust for the life of a beneficiary and upon her death to distribute the corpus among those entitled thereto under the residuary clause of the will they are not entitled to additional commissions as trustees.</p>

<p>Partnership — action for damages for being induced by fraud to enter into partnership agreement — prior suit for dissolution and accounting not a bar.</p> <p>In an action at law to recover damages alleged to have been sustained by being induced by false and fraudulent representations on the part of the defendant to enter into a copartnership with him, a judgment in a prior suit in equity by the plaintiffs against the defendant for a dissolution of the copartnership and an accounting, under which the plaintiffs were held liable to the defendant, is not a bar, because the fraudulent representations alleged in this action were not necessarily involved in the suit in equity.</p> <p>Even if the fraudulent representations might have been interposed as a counterclaim in the suit in equity, the plaintiffs were under no obligation to do so and were , entitled- to reserve them and- sue in a separate action. . - -</p> <p>The suit ior dissolution of the partnership was not so connected with the action for damages for being led into the agreement as to impose any obligation upon the plaintiffs to interpose the present cause of action as a defense.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 29th day of April, 1915, upon the verdict of a jury, and also from an order entered on the same day denying a motion for a new trial.</p>

Motion by the defendant for a new trial upon exceptions ordered to be heard in the first instance by the Appellate Division.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 1st day of April, 1915, upon the verdict of a jury, and also from an order entered on the 20th day of April, 1915,. resettling nunc pro tunc an order entered on the 1st day of April, 1915, denying a motion for a new trial.</p>

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

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 18th day of June, 1915, dismissing the complaint at Trial Term.</p>

<p>Appeal from an order of the Supreme Court, entered.in the New York county clerk’s office on the 5th day of November, 1915, overruling demurrers to the first, second, third, fourth and fifth separate defenses and the sixth partial defense contained in the defendant’s amended answer.</p>

<p>Bills and notes — consideration.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 39th day of June, 1915, upon the decision of the court setting aside a separation agreement.</p> <p>Judgment affirmed, with costs. Present — Clarke, P. J., McLaughlin, Dowling,-Smith and Davis, JJ.; McLaughlin, J., dissented.</p>

Appeal by the relator from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 23d day of November, 1915, denying a motion for a peremptory writ of mandamus.

Cross-appeals by the plaintiff and by the defendant, Lucille 8. Fabre, from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 10th day of January, 1916.

Appeal by the defendant from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Queens on the 17th day of December, 1915, denying its motion to disallow costs.

Appeal by the plaintiff from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 9th day of December, 1914, and from an intermediate order entered November 7, 1914.

Appeal by the defendant from an interlocutory judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 11th day of June, 1915, confirming the report of a referee.

Appeal by the defendant from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 10th day of December, 1916, as resettled by an order entered on the 31st day of December, 1916, and also from an order entered on the 23d day of December, 1915.

<p> County—improvements to jail. </p>

<p>. Application ex parte on behalf of Joseph G. Glass, as receiver, etc., to vacate a restraining order granted by the Supreme Court at chambers in Westchester county, dated March 3,1916, in an action pending in that court, enjoining the receiver and other named defendants in said action from taking any proceedings in another action pending in Onondaga county, entitled Matzene v. Godfrey, until the hearing and determination of the motion contained in the order here sought to be vacated.</p>

<p>Motion for reargument of an appeal from a judgment of the Supreme Court, entered in the Onondaga county clerk’s office on the 1st day of June, 1914, and also from an order entered on the 13th day of May, 1914.</p>

<p> Board of Claims—jurisdiction—notice of intention to file claim. </p>

Appeal by the defendant, The Buffalo Electric Vehicle 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 29th day of October, 1915, upon the verdict of a jury for $1,184, and also from an order entered in said clerk’s office on the 29th day of November, 1915, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal from an order of the Supreme Court, entered in the EewYork county clerk’s office on the 23d day'of December, 1915, denying a motion to quash a writ of certiorari and to dismiss the proceeding.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 7th day of October, 1915, 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 November, 1915, granting the plaintiff’s motion for a commission.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 33d day of February, 1916, denying a motion to vacate the service of the summons and complaint.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 13th day of March, 1916, denying a motion for alimony and counsel fees.</p>

<p>Appeal from an order of the Supreme Court, entered on the 1st day of March, 1916, denying a motion to vacate an order for examination of defendant before trial.</p>

<p>Appeal from an order of the Supreme Court, entered on the 22d day of March, 1916, granting the plaintiff’s motion to set the case down peremptorily for trial.</p>

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

<p>Appeal from an interlocutory judgment of divorce, entered in the Hew York county clerk’s office on the 19th day of May 1915, and also from an order of the Supreme Court entered on the 39th day of March, 1915, denying a motion for a new trial.</p> <p>Judgment and order affirmed, with costs. Ho opinion. Present— Clarke, P. J., Laughlin, Dowling, Page and Davis, JJ.; Dowling, J., dissented.</p>

<p>Deposition — open commission.</p>

Appeal by the defendant from a judgment of the Supreme Cotut, entered in the office of the clerk of the county of Kings on the 3d day of June, 1915, in favor of the plaintiff, and also from an order entered on the 17th day of June, 1915, denying a 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 Nassau on the 4th day of September, 1915, in favor of the plaintiffs.

Appeal by the defendant from a judgment, entered in the Chautauqua - county clerk’s office May 11, 1915, in favor of the plaintiff upon the report of a referee.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office on the 17th day of February, 1916, denying a motion to vacate an order for the examination of defendant before trial, in so far as said order for examination was thereby modified.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 17th day of May, 1915, upon the verdict of a jury, and also from an order entered on the 24th day of May, 1915, denying a motion for a new trial.</p>

Appeals by defendant from two judgments of the Supreme Court, made on the 10th day of June, 1915, and entered in the New York county clerk’s office upon verdicts and also from orders denying motions for new trials.

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 34th day of January, 1916, denying a motion to separately state and number causes of action in the amended complaint.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office, denying a motion to make the complaint more definite and certain.</p>

<p>Appeal from an order of the Surrogate’s Court of the county of Hew York, entered on the 19th day of April, 1916, denying the motion of the petitioner for advance payment on account of distributive share in estate.</p>

<p>Appeal from an order of the Supreme Court, entered in the Hew York county clerk’s office on the 20th day of April, 1916, denying a motion for the issuance of a commission for the examination of a non-resident witness upon interrogatories.</p>

<p>Proceedings to discipline an attorney.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office on the 13th day of December, 1916, upon the verdict of a jury, and also from an order entered on the same day, as amended by an order entered on the 20th day of December, 1915, denying a motion for a new trial.</p>

<p>Appeal from an order, entered in the New York county clerk’s office on the 7th day of February, 1916, denying a motion by petitioner for leave to sue the Illinois Surety Company on its undertaking given to discharge a mechanic’s lien.</p>

<p>Appeal from orders of the Supreme Court, entered in the New York county clerk’s office on the 23d day of November, 1915, overruling the defendants’ demurrer to the first cause of action contained in the complaint and denying the defendants’ motion for judgment upon said cause of action and the demurrer thereto.</p>

Appeal by the defendants from a judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 23d day of July, 1915, in favor of the plaintiffs.

Judgment of conviction affirmed, the court finding no prejudicial error calling for a reversal of the conviction under section 542 of the Code of Criminal Procedure. All concurred, except Kellogg, P. J., who dissented in memorandum, in which Howard, J., concurred.

<p>Animals — real property — injury to land by beavers — Mobility of State.</p>

<p>Tax sale — action to set aside — sufficient description of premises — validity of assessment—misnomer of owner.</p>

<p>Railroad — negligence — duty to passengers.</p>

<p>Practice — dismissal — commission.</p>