Volume 174 — New York Appellate Division Reports

Appeal by the plaintiff, Charles E. Churchill, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 1st day of November, 1915, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 15th day of November, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles A. Finnegan, 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 23d 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 anew trial made upon the minutes.

Appeal by the defendant, Benjamin A. Rolfe, 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 21st day of December, 1915, affirming a judgment of the City Court of the City of New York and also affirming an order denying defendant’s motion for a new trial.

Appeal by the plaintiff, Lodowick Holmes Jones, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of April, 1916.

Appeal by the defendant, John I. D. Bristol, 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 February, 1916, denying his motion for judgment on the pleadings consisting of a complaint, answer and reply.

<p>Appeal by the plaintiff, May Davies Hopkins, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of March, 1916, upon the decision of the court dismissing the complaint upon the merits after a trial at the New York Trial Term before the court, a jury having been waived.</p>

Appeal by the plaintiffs, Irving National Bank, New York, and others, 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 1st day of February, 1916, upon the decision of the court dismissing the complaint after a trial at the New York Special Term. An appeal is also taken, as stated in the notice of appeal, from the decision of the court pursuant to which the judgment was entered.

Appeal by the defendant, Kissel Motor Car 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 February, 1916, 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 tidal made upon the minutes.

Appeal by the defendant, Postal Telegraph-Cable Company, from an order and interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of January, 1916, upon the decision of the court rendered after a- trial at the Monroe Special Term overruling a demurrer to the complaint.

<p>Will — contract — lack of consideration — estoppel.</p> <p>Where a testator devised certain real estate and personal property to a university upon condition that it should pay to his adopted son “the sum of Twelve Hundred Dollars per annum, during his natural life,” subsequent agreements by the university to pay the annuity semiannually or monthly are without consideration, and, therefore, unenforeible.</p> <p>The fact that payments were made semi-annually and monthly cannot bind the university either upon the assumption of the existence of a contract or by way of estoppel.</p>

<p>Negligence — injury to infant confined in industrial school for truancy — status of convicted infant—when board of education not liable for personal injuries to infant.</p> <p>An infant convicted by a magistrate of truancy, and committed to the New York Parental School, maintained by the board of education of the city of New York for industrial training, has the status of a convicted person sentenced to confinement.</p> <p>Where such infant is placed at work upon a printing press in said institution, the work is in the nature of a penalty imposed by law, and he cannot recover against said board of education for personal injuries received while operating the press.</p> <p>Such infant has the status of a person convicted as a disorderly person, although the provisions allowing the conviction are found in the Education Law."</p> <p>An infant injured under the circumstances aforesaid is not entitled to the benefit of the provisions of the Labor Law, as there is no relation of master and servant, which must arise out of a contract express or implied.</p>

Appeal by the plaintiff, John Kreitner, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 11th day of November, 1915, upon the decision of the court after a trial at the Erie Equity Term. Plaintiff appeals from said judgment excepting the part thereof directing the defendants Burgweger and Bartholomay to pay to the defendant Iroquois Brewing Company certain moneys.

Appeal by the defendant, International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of March, 1916, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office ón the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Atlanta Machine Works, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 23d day of June, 1915, upon the verdict of a jury for $3,003.82 on the counterclaim, and also from an order entered in said clerk’s office on the 19th day of July, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 1st day of December, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1915, denying the appellant’s motion for a new trial made upon the minutes.

<p>Waters and waterways — action to register title to real property — lands under waters of Jamaica bay bounded by Beach channel — evidence not establishing title of plaintiff by record or adverse possession as against the People—practice—answer — when prior judgment in partition not res adjudicata against People not made parties — evidence — failure of city as grantee to contest plaintiff’s title — payment of taxes on lands claimed.</p> <p>Action to register title to lands, brought under article 13 of the Real Property Law, the People of the State appealing from so much of the judgment as directs the registering to the plaintiff of lands between the high-water mark in Jamaica bay and a channel in that bay known as Beach channel. Evidence examined, and held, not to establish that the plaintiff by record title or by adverse possession for over forty years was entitled to said lands under water beyond the low-water mark.</p> <p>Title to lands below high-water mark in Jamaica bay, not disposed of by royal grant prior to the first Constitution, vested in the People of the State in whom it remains unless divested: (1) By a grant proved by them or (3) by the presumption of a lost grant, or (3) unless title vested by ■adverse possession in another ownership.</p> <p>A grant of said lands under water formerly made to the plaintiff’s predecessor in title contained conditions and covenants which negative an estate in the plaintiff in fee simple absolute.</p> <p>Evidence examined, and held, that though the plaintiff had fenced the uplands and improved some of the lands under water by " fill,” docks and buildings, there was no possession to lands below the low-water mark adverse to the People of the State.</p> <p>The findings of the official examiner in an action to register a land title are not binding upon the court.</p> <p>In such action the defendant cannot contradict facts in the documents annexed to the complaint unless he denies the same by answer and specifically alleges controverting facts, and this rule is binding upon the People of the State as the party to such action.</p> <p>Although the commissioners in a prior suit of partition to which the People of the State were not a party, fixed Beach channel as the northern boundary of one of the lots involved in the present action, the judgment did not operate to divest the People of their title between low-water mark and Beach channel.</p> <p>The fact that the city of New York, having succeeded to all the rights of the State to said lands under water, did not contest the plaintiff’s claim and consented to an entry of a judgment vesting the plaintiff to a fee simple absolute, the fact is not evidential as against the People.</p> <p>Nor does the fact that the plaintiff paid taxes to the city of New York on a parcel including said lands under water prove title.</p>

Appeal by the plaintiff, Joseph P. Carney, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 15th day of October, 1915, denying his motion for a new trial herein upon the ground of newly-discovered evidence. The action was to recover for personal services claimed to have been rendered in superintending the remodeling of a building, known as The Richmond, into a modern apartment house.

<p>Motion by the defendant, Percy Jackson, as trustee, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance after the jury had rendered a verdict in plaintiff’s favor for $17,500 upon a trial at the Niagara Trial Term in October, 1913.</p>

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

Appeal by Mary F. McGiff from an order and decree of the Surrogate’s Court, of the county of New York, entered in the office of said Surrogate’s Court on the 14th day of December, 1915, ordering her to pay to the administratrix of this estate the sum of $7,727.96.

Appeal by the defendants, John Sartori 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 Kings on the 12th day of April, 1916, upon a decision of the court after a trial at the Kings County Special Term. The judgment decreed that the sale of certain premises to Joseph.

<p>Appeal by the defendant, Manhattan Briar Pipe Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of February, 1915, upon the decision of the court, a jury having been waived.</p>

Appeal by the defendant, Franklin H. Kalbfleisch Company, from a judgment of the .Court of Special Sessions of the City of New York, borough of Brooklyn, Part 2, rendered against it on the 3d day of December, 1915, convicting it of a violation of section 96 of the Sanitary Code of the city of New York,* and imposing a fine of $500.

Separate appeals by Annie 0. McElroy and John H. Schriever, from parts of a decree of the Surrogate’s Court of the county of Rockland, entered in the office of said Surrogate’s Court on the 2d day of September, 1915, construing the will of John H. Schriever, deceased.

Appeal by Everett M. Price and four other members of the town board of the town of Brookhaven, Suffolk county, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Suffolk on the 29th day of April, 1916, directing that a peremptory writ of mandamus issue, commanding said town board to convene and meet with Clarence E. Dare, as town superintendent of highways, and to enter into an agreement with him…

<p>Village—Port Chester — constitutional law — chapter 513, Laws of 1911, validating contract relating to audit of taxes, etc.— portions of act unconstitutional by reason of defective title — when valid portions of defective act may be enforced — power of Legislature to validate contract otherwise unauthorized.</p> <p>Chapter 513 of the Laws of 1911, which validates a contract made by the authorities of the village of Port Chester employing the plaintiff to audit tax receipts and assessments, to make abstracts of unpaid items, to calculate interest charges and penalties and to devise an effective system of accounting for the village departments, is invalid in so far as it provides that the plaintiff may recover damages for failure of the local authorities to give him access to books and awarding him extra compensation for services rendered at the instance of certain village officers, and this because such provisions are not indicated in the title to the act, as required by article 3, section 16, of the State Constitution.</p> <p>But the invalid provisions are so unrelated to the title and to the other parts of the body of the act, that valid portions validating the said contract and authorizing a recovery for services rendered may be retained and enforced.</p> <p>The Legislature could have authorized the village authorities to make the contract aforesaid, although otherwise it would be unlawful, and hence the Legislature has power, by subsequent act, to validate such contract illegally made by the village authorities.</p>

<p>Gift — savings bank deposit in trust for another — when trust revocable — gift causa mortis — revocation by donor before death—evidence — transactions with person since deceased.</p> <p>Action to recover the amount of savings bank deposits which stood in the name of the depositor ‘‘ in trust ” for the several plaintiffs. It appeared that after the depositor, since deceased, had the deposits made in the form aforesaid, she continued to retain possession of the bank books which she kept in a safe deposit box, which was rented in the joint names of herself and the husband of one of the plaintiffs. There was testimony to the effect that on giving up the deposit box the decedent handed the books to said husband, stating that they belonged to the plaintiffs and that she wished him to keep them; but it was admitted that the plaintiffs were both in the house at the time and that the decedent did not herself give them the bank books. The husband testified that on the same day he delivered the books to the plaintiffs who then handed them back to him for safe-keeping. Before the depositor’s death and on complaint of one of the plaintiffs, she was committed to a hospital for the insane, but was later discharged therefrom on the ground that she had been found to be of sound mind, and thereafter she notified the banks of deposit, by formal written instrument, that she revoked the trusts. The decedent up to the time of her death continued to draw the interest of the accounts and to use the same for her own purposes. On all the evidence,</p> <p>Held, that the acts of the decedent did not constitute a valid, absolute and irrevocable gift of the deposits, but at the most constituted a gift causa mortis, and hence the formal revocation by the donor before her death revoked the gift.</p> <p>The husband of the plaintiff, to whom the books were delivered by the decedent, was not incompetent under section 829 of the Code of Civil Procedure, to testify to transactions with the decedent.</p>

Appeal by the plaintiff, Johnson County Savings Bank, from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 16th day of December, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of November, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Real property — marketability of title — purchase by executor of mortgage on lands of testator — purchase by executor on foreclosure sale — when title subsequently conveyed by executor is marketable — good faith of executor — limitation of action — effect of decree settling executor’s accounts.</p> <p>Where an executor, being one of the devisees of the real property of his testatrix, bought in a mortgage on said lands as executor, the estate not being liable on the collateral bond, foreclosed the mortgage and bought in the lands for a small sum in his representative capacity, and having subsequently made an advantageous sale accounted for all the proceeds as part of the estate, and his accounts were judicially settled, the title so conveyed was marketable and a subsequent vendee will be required to accept the same although the transaction was irregular and although the executor was given no power of sale.</p> <p>The conduct of the executor, though irregular, showed good faith, and the realty when purchased upon the foreclosure became equitably converted into personalty which he could sell so as to transfer a valid title, although the unauthorized act rendered the executor personally liable to the estate had any loss arisen therefrom.</p> <p>Moreover, where all the devisees of the mortgaged premises were made parties to the suit of foreclosure and more than ten years have elapsed since the foreclosure and sale, the title so conveyed is not open to question.</p> <p>Moreover, under the provisions of section 2742 of the Code of Civil Procedure, the judicial decree settling the accounts of the executor after the sale was binding upon the devisees who were all made parties to the proceeding.</p>

<p>Crime — bookmaking—Penal Law, section 986 — proof justifying conviction — accepting bets at race course.</p> <p>Appeal from a judgment convicting the defendants of poolselling or bookmaking, contrary to the provisions of section 986 of the Penal Law. Evidence examined, and held, that the acts of the defendants, who accepted bets at a race course, amounted to bookmaking within the meaning of the statute and that they were properly convicted.</p> <p>It is not necessary that “bookmaking” should be in writing.</p> <p>Where the defendants made the bettors register arid record the bets and took, kept and used the records so as to make them their own, it was bookmaking within the meaning of the statute.</p> <p>Defendants may be convicted of said crime although they operated only on occasions, and cannot escape liability on the theory that they were private gamblers.</p> <p>It is unnecessary that the defendants should have circulated the terms of the bets they would accept if the information was orally imparted to the public.</p>

<p>Appeal by the defendant, Martin L. Maxwell, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1915, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial upon the minutes.</p> <p>Plaintiff had worked for defendant as a -painter on the outside wall of a five-story structure, about seventy-five feet high, being one of the buildings of the Sea View Hospital at New Dorp, Staten Island. On January 20, 1914, a scaffold about twenty or twenty-five feet in length was swung from the top of the building by blocks and tackle so that plaintiff and his coworker could lower themselves along the north wall of the building as they worked downward, sandpapering iron work and scraping off spots of concrete, gradually dropping the scaffold until it hung at a level of between twelve and fifteen feet above the ground. Plaintiff then fell off the scaffold, sustaining severe injuries. This scaffold had no safety rail. The complaint averred this absence of a safety rail as required by the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 18, as amd. by Laws of 1911, chap. 693).</p> <p>Upon the trial the court refused to instruct the jury to the effect that defendant was not required to maintain any guard rail if at the time of the accident the scaffold was less than twenty feet from the ground, to which ruling defendant’s counsel duly excepted. There were left to the jury the issues of defendant’s negligence and as to plaintiff’s contributory negligence. Plaintiff had a verdict of $3,000, which the. court declined to set aside.</p> <p>This appeal is from the judgment, also from the order denying a new trial.</p>

<p>Will—power of appointment construed — effect of gift of residuary estate upon power óf appointment — failure of donee of power to exercise same to full extent —appointment as to personal estate.</p> <p>A will placing property in trust, income to two sons of the testator for life, provided that on the death of either son half of the residuary estate was to be paid to his lawful issue, and each son was given a power of testamentary appointment to dispose of one-third of the share of which he had a life use among the testator’s then living lineal descendants and the son’s surviving wife “in such manner and proportions as to him shall seem proper.” In case a son should die without surviving issue his share, or so much thereof as was not disposed of by testamentary appointment, was to be paid to the other son absolutely, or to his issue per stirpes.</p> <p>One of the sons died leaving a widow, but no issue, and by his will gave to his widow a life use of all the property over which he had a power of appointment under bis father’s will, with a further power to appoint by her own will the principal of said fund, one-half thereof to a specified hospital and the other half to a specified club, but following this clause the will devised and bequeathed the residue of the estate to the widow, who was also named executrix.</p> <p>The widow of the son subsequently died, leaving a will in which she gave small bequests to the institutions named by the husband in his will, but gave to her sister the residue of all the property to which she was entitled under the wills of the original testator and of her husband.</p> <p>Wills construed, and held, that although the widow of the son did not fully carry out the appointment to the institutions indicated in her husband’s will, which appointment he could not authorize as the estate was limited to the lineal descendants of the original testator, the residuary clause in the son’s will was effective to enable her to appoint the capital of the trust fund to her sister.</p> <p>An appointment under a testamentary power will not fail merely because it does not go to the full extent of the power conferred; thus the donee of the power may give a life estate rather than the whole fee.</p> <p>An instrument executing a testamentary power need not, under the laws of this State, refer to the source from which the power is derived, and said rule applies as well to wills of personalty as to wills of real estate.</p>

<p>Appeal by the defendant, Queens County Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 14th day of December, 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 11th day of December, 1914, denying defendant’s motion for a new trial made upon the minutes, and also from a second order entered in said clerk’s office on the same day granting plaintiff an extra allowance of costs herein.</p>

Appeal by the defendant, New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of November, 1915, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 11th day of November, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sigmund Reiss, 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 12th day of January, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeals by Robert E. Dowling and others from 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 dismissing the petitions herein upon the merits on the question of law only.

Appeal by the Comptroller of the City of New York from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 27th day of July, 1915, confirming the report of a referee and directing the comptroller to pay to the petitioner $5,244.21 deposited with him as public administrator to the credit of the unknown next of kin of one Rose Fitzpatrick, deceased.

Appeal by Edward D. Harris and another, as trustees, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 21st day of April, 1916, directing them to pay to the petitioner $4,000 per year for his maintenance out of a trust fund under the will of Henry Hilton, deceased.

<p>Debtor and creditor—-suit to set aside alleged fraudulent conveyances — conveyance to wife in consideration of her agreement to devote - lands to payment of grantor’s debts — subsequent conveyance of wife for same purpose — conveyances not fraudulent — evidence — consideration — agreement to pay debts.</p> <p>The defendant’s husband, being in failing health and having given the plaintiff a promissory note, transferred all of his real property to his wife, the defendant, before the maturity of said instrument, the consideration being, as claimed by her, an agreement to devote the lands to the payment of her husband’s unsecured creditors. As the plaintiff’s note was not paid at maturity, it threatened to commence bankruptcy proceedings against defendant’s husband. ind to induce it to refrain from so doing the defendant delivered to the plaintiff her own promissory note for the amount owing by ncr husband, and she subsequently made partial payments thereon; but the plaintiff, when accepting defendant’s note, still retained and did not release its claim on the husband’s note. The defendant’s husband died and the plaintiff subsequently entered judgment against her on the amount unpaid on her personal note, but prior to that time the defendant had conveyed the realty to which she held record title to trustees, also made defendants, under an express agreement .recited in the deed by which they were to devote the proceeds to protect and secure the creditors of the defendant’s deceased husband. In a suit to set aside said conveyances made to the wife and by her to the other defendants, upon the ground that the transfers were made to defraud the plaintiff,</p> <p>Held, that the suit being brought to enable the'plaintiff to secure payment of its debt in full, rather than sharing ratably with the other creditors of the decedent, a court of equity would not lend its aid.</p> <p>In the suit to set aside said conveyance it was error for the court to strike out evidence tending to show that the consideration for the conveyance by the decedent to the wife was her collateral promise to devote the proceeds of the lands to the payment of his debts, and it was also error to strike out her testimony to the effect that her conveyance to the other defendants as trustees was made upon the same consideration.</p>

<p>Evidence — action for personal injuries "-when proof that plaintiff suffered from falling womb inadmissible — municipal corporation — injury caused by defective sidewalk — proof establishing negligence.</p> <p>Where the complaint in an action against a city to recover damages for personal injuries caused by a defective sidewalk, merely alleged that the plaintiff was “ thrown forcibly to the ground injuring her about the head, limbs and body, and rendering her sick, sore and disabled, and that she will for a long time remain sick, sore and disabled,” she is not entitled, against objection, to give evidence that the accident caused falling of the womb. Especially is this so where no such claim was made in the notice served upon the city, or upon the plaintiff’s examination before the city authorities, and where the testimony of her physician shows that such condition would not necessarily result from the fall.</p> <p>Where it appears that the owner of a building had removed the flagstones from the street opposite his premises during repairs thereto, and failed to replace them for over a year, and in the meantime police officers had repeatedly reported that the sidewalk was unsafe, the city may be found negligent for allowing the condition to exist and the owner to substitute for the flagstones successive layers of plank which were uneven, insecurely fastened, and which sank into the mud.</p>

<p>Proceeding instituted by the New York County Lawyers Association to discipline an attorney for alleged professional misconduct.</p>

<p>negligence—personal injuries caused by defective trapdoor—failure to comply with New York City Building Code—accident during hours the law permitted trap doors to be opened — erroneous admission of evidence — responsibility of landlord for tort of tenants.</p> <p>It seems, that although the primary purpose of section 95 of the New York City Building Code, relating to the maintenance of doors in hatchways in a building, is to provide for protection in case of ñre, a landlord may be held liable for personal injuries resulting from a failure to provide such door, or for failure to keep it in working order after notice, actual or constructive, of its removal or defects therein. But a landlord, having furnished such doors, is not liable for their use, or non-use, by the employees of tenants over whom he has no control.</p> <p>In the previous trial of an action to recover damages for personal injuries caused by the fact that tenants had taken away or put out of order the door of a hatchway furnished by the defendant, their landlord, the court having held that the question as to whether a trap door had been provided was irrelevant in that the accident happened during business hours when the Code did not require such trap doors to be closed, it is reversible error for the court on a new trial to allow evidence on the question as to whether or no a trap door had been provided as required by the Building Code.</p> <p>Such error was not cured by a subsequent direction to the jury to disregard the evidence.</p>

<p>Appeal by the plaintiffs, Richard Doughty and another, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 20th day of December, 1915, affirming a judgment of the City Court of the City of New York in favor of the defendant entered upon a verdict directed by the eourt.</p>

<p>Pleading — amendment — action to recover insurance premiums — defense that agent agreed to give rebates—defense constituting misdemeanor.</p> <p>A defendant, sued by an insurance agent for the amount of premiums advanced by the agent on life insurance policies procured for the defendant, who goes to trial on an answer which contains merely general denials, will not be allowed to amend his answer to set out an alleged agreement of the agent to pay back to the defendant a portion of his commissions, such alleged defense having been known to the defendant when the original answer was drawn, and suppressed for the time being until the Statute of Limitations might run against the offense of receiving rebates on premiums paid for life insurance.</p>

Appeal by the plaintiffs, Clifford M. Marsh and others, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Warren on the 22d day of December, 1915, dismissing the complaint upon the decision of the conrt after a trial at the Warren Trial Term before the court without a jury.

<p>Judgment — execution — garnishment —when wages insufficient to justify garnishee execution.</p> <p>Where an order directing that an execution issue against defendant’s earnings was granted on an affidavit of one of plaintiff’s attorneys, stating that the earnings of the defendant were forty-seven dollars and fifty cents per month, together with the rent of a house of the reasonable rental value of twenty dollars per month, and a motion to modify or vacate said order was supported by the affidavits of the defendant and his son, from which it appears that under an agreement between the defendant’s brother and the defendant’s employer the latter built a house upon a lot of the former which was to be occupied by a maiden sister of the defendant, who was upwards of sixty years of age and was without means of support, and that the defendant should reside in the house with her and furnish her with food, fuel and lights, and should receive from his employer forty-nine dollars per month for his services, and no answering affidavits were presented upon the motion to vacate, although the defendant had been examined in proceedings supplementary to execution, said motion should have been granted.</p> <p>Wages of forty-nine dollars per month for fifty-two weeks of the year do not constitute sufficient earnings to warrant issuing a garnishee execution, and the whole rental value of the house of twenty dollars per month cannot properly he included as part of the earnings of the defendant. The word “earnings” is a more comprehensive term than the word “wages.”</p>

Appeal by the defendants, George M. Landers 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 13th day of June, 1916, directing certain questions of fact claimed to be involved in the issues arising from the pleadings herein to be tried by a jury.

Appeal by the defendant, The Shubert Theatrical Company, from a judgment of the Supreme Court in favor of the plain-, tiff, entered in the office of the clerk of the county of New York on the 27th day of January, 1916, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the 4th day of February, 1916, denying defendant’s motion for a new trial and resettling a prior order also denying its motion for a new trial.

<p>Landlord and tenant — implied covenant — partial eviction caused by erection of fire escape — right of tenant to proportionate abatement of rent — special damage to tenant —failure to claim abatement.</p> <p>In a lease of a loft for manufacturing purposes a covenant that the tenant will conform to any reasonable alteration or regulation that may be deemed necessary for the protection of the building and the general comfort and welfare of the occupants of the same will be implied even if not expressed in terms.</p> <p>Where the lessor of such loft being required by a municipal building department to provide additional fire escapes deprived a tenant of a substantial portion of his floor space and compelled him to readjust his machinery, etc., by cutting through a wall and constructing a stairway to a loft in an adjoining building as a means of escape in case of Are, the eviction was not wrongful so as to authorize a complete suspension of rent by the tenant, but was a partial eviction under legal authority and merely entitled the tenant to a proportionate abatement of the rent.</p> <p>The tenant, however, under the circumstances, had no right to counterclaim for special damages caused by readjusting his machinery to use the portion of the property from which he had not been evicted for special damage must flow from a wrongful act on the part of the landlord.</p> <p>Where the tenant, being sued for rent, made no counterclaim in his pleadings, or at trial, for a proportionate abatement of rent, it was proper for the court to allow a recovery of the full amount.</p>

Appeal by the plaintiff, Karl Kaufman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of June, 1916, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, Peter G-. Kemp, 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 August, 1916, denying a motion to continue a preliminary injunction restraining the defendant B. & F. Trading. Co., Inc., from realizing upon certain accounts pending action to set aside an alleged fraudulent transfer thereof.

Appeal by the defendant, Thomas Bennett, as president, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1916, granting plaintiff’s motion for an injunction pendente lite.

Appeal by the defendants, Edward Earl 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 3d day of February, 1916, sustaining plaintiff’s demurrer to the first separate and affirmative defense contained in the answers of the several appellants.

<p>Contract — action on option to purchase rights in railway and mining company organized to operate in Cuba — evidence.</p> <p>In an action to recover on a written option, under which the plaintiff assumed to give the defendant the right to purchase all lands, bonds, stocks, etc., and everything pertaining to a railroad and power company, organized under the laws of the State of Maine to do business in Cuba as a railroad corporation, and represented that there was a valid concession for the construction and operation of the railroad, it appeared that the only right, title or interest which the plaintiff had when he gave the option or at any time before it expired arose under agreements between him and the company by which he agreed to construct for it the railroad, etc., and to acquire at his own expense the necessary right of way and to transfer said property to the company. The only consideration which the plaintiff was to receive from the company under said agreements was a payment in cash and a certain number of shares of the capital stock of the company. The company agreed to execute and sell first mortgage bonds and pay over the proceeds to the plaintiff to enable him to perform the construction work. Work under the contract was not commenced within two years after the articles of incorporation of the company were filed under the Cuban law, which provides for a forfeiture where ten per cent of the capital stock of the company has not been expended within two years, and only a nominal sum had been expended under the contract.</p> <p>Evidence examined on the several issues of fact submitted to the jury and held, that a verdict on all of them, excepting those relating to fraud, is against the weight of evidence.</p> <p>A recovery should not be allowed on the theory that the court in finally holding that the Cuban law as to a forfeiture was self-operating, and that the finding of the jury on this question of fact is, therefore, immaterial, for this would be reviewing a ruling of a trial court on a question of law contrary to the direction of the Court of Appeals in this case heretofore made.</p>

<p>Appeal by the defendant, The Sheriff of Erie County, N. Y. from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of July, 1915, discharging the relator from custody on the return of a writ of habeas corpus.</p>

Appeal by The People of the State of New York from an order of the County Court of Chautauqua county, entered in the office of the clerk of said county on the 22d day of May, 1915, discharging- the relator from imprisonment. ■

Appeal by the defendant, Robert E. Shoemaker, 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 20th 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 13th day of December, 1915, denying appellant’s motion for a new. trial made upon the minutes.

<p>Tax — failure of foreign corporation to pay State tax — supplementary proceedings — Tax Law, section S99, construed.</p> <p>A foreign corporation licensed to and doing business in this State which has failed to pay the tax assessed on its capital invested in this State is subject to examination in supplementary proceedings as to its capital, as authorized by section 299 of the Tax Law, for in this respect the statute makes no distinction between foreign and domestic corporations.</p>

Appeal by the defendant, Joseph Adler, from a judgment of the Court of Special Sessions of the City of New York, Kings county, rendered against him on the 11th day of April, 1916, convicting him of the crime of Sabbath breaking in violation of section 2143 of the Penal Law.

Appeal by the plaintiff, William A. Wiggins, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of May, 1916.

Appeal by the defendants, David Goldstein and another, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 4th day of April, 1916, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day, denying defendants’ motion for a new trial made upon the minutes.

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

Appeal by the defendant, Cornelius Furgueson, as executor, 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 April, 1916, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Vincent Cocchia, 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 16th day of December, 1915, upon a dismissal of the complaint by direction of the court at the close of the case.

<p>Rehearing of an appeal by the defendant, Southern Pacific 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 1st day of March, 1915, upon a 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>

<p>Mortgage — taxation of mortgage covering property within and without the State — vessels as “ tangible property ” — situs of vessels for purpose of taxation — effect of amendment of 1916 to section 260 of Tax Law — supplemental mortgage.</p> <p>The situs of vessels for the purpose of taxation at the time of recording mortgages thereon, although possibly not conclusive, has an important bearing upon whether the vessels should be considered as property within or without the State.</p> <p>Where the domicile of the owner and the port of enrollment of vessels covered by a mortgage and used off the coast of this and other States, are at the same place within this State, such place is the situs of the vessels, and they constitute “tangible property” within the State, within the intent and meaning of section 360 of the Tax Law.</p> <p>The intention of the Legislature that tangible personal property covered by a mortgage both within and without the State should be taken into account in making the apportionment of the taxable indebtedness was expressly confirmed by Laws of 1916, chapter 335, which revised section 260 of the Tax Law, by specifically stating that personal as well as real property is to be considered.</p> <p>Where portions of the real and personal property covered by a mortgage given as security for the payment of bonds, were subject to a lien which prevented the disposal of said bonds, and a second mortgage was given upon portions of said property not subject to the lien, as security for the payment of bonds, which were then exchanged for the bonds issued under the first mortgage, which was thereby discharged, the second mortgage is not a supplemental mortgage, within the meaning of section 255 of the Tax Law, but is a substituted or superseding mortgage and is subject to taxation, especially where there was no claim of exemption at the time of presenting the mortgage for record, and verified statements were filed in conformity with section 260 of the Tax Law.</p>

Appeal by the defendant, Walsh Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 15th day of February, 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 18th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John D. Chism, Jr., 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 Warren on the 11th day of March, 1915, dismissing the complaint upon the merits upon the decision of the court after a trial at the Warren Trial Term, a jury having been waived.

Appeal by the plaintiff, Rhoda N. Miller, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Saratoga on the 5th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Certiorari issued out of the Supreme Court and attested on the 19th day of November, 1915, directed to Martin Saxe and others, as the State Tax Commission of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in determining the franchise tax of the relator for the year ending October 31, 1913.</p>

<p>Workmen’s Compensation Law—right of Commission to grant rehearing after lapse of time to appeal — “ employee ” — injury not arising out of and in the course of hazardous employment.</p> <p>Where, after the State Industrial Commission has rendered a decision that the claimant’s employment at the time of the accident was not covered by the Workmen’s Compensation Law, an application for arehearing is made and evidence presented indicating that the decision of the Commission was made without full knowledge of the facts, it may, notwithstanding the time to appeal under section 23 of the Workmen’s Compensation Law has passed, grant the rehearing and correct its decision under sections 22 and 74 of the statute.</p> <p>Section 22 of the Workmen’s Compensation Law, relating to the modifica' tion of an award, and section 74, as to the continuing jurisdiction of the Commission, should be liberally construed.</p> <p>The fact that a claimant was the vice-president and a stockholder of the employer in no way affects his status as an “employee.”</p> <p>An employee, prior to the amendment of 1916, engaged in an industry not in itself hazardous, in which there were several lines of employment, some of which were hazardous and some non-hazardous, who was inj ured while working in one of the non-hazardous employments, which was in no way incident to a hazardous employment, is not entitled to compensation.</p> <p>Hence, an employee, engaged prior to said amendment, as foreman, by a corporation manufacturing some and bottling other grocery supplies, who, while about to place wires over the corks in bottles of peroxide, filled but not manufactured by the corporation, was injured by the breaking of a bottle, is not entitled to an award.</p>

<p>Appeal — criminal law — denial of certificate that misdemeanor should be prosecuted by indictment.</p> <p>No appeal lies from an order denying an application for a certificate that a charge of misdemeanor for violating the Liquor Tax Law should be prosecuted by indictment.</p> <p>It is now settled that unless an appeal in a criminal case is authorized by statute it is not authorized at all.</p>

Appeal by the defendant, Luke A. Burke & Sons Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of November, 1915, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 20th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Pleading—action for breach of contract —allegation of facts constituting breach — when particular acts or omissions by defendant need not be alleged.</p> <p>In an action to recover damages for the breach of a contract, the facts constituting the breach must be pleaded. It is insufficient to plead generally that the defendant failed to fulfill his obligations under the contract, or that he has been guilty of a breach of the contract.</p> <p>But allegations that the defendant repudiated the contract in toto and refused to be bound thereby or to perform on its part may obviate the necessity of alleging the particular acts or omissions on the part of the defendant claimed to constitute violations of the contract.</p> <p>Complaint in an action for a breach of a contract by the defendant to aid and assist the plaintiff in organizing and conducting a “ Better Babies Contest,” examined, and held, insufficient, because of a failure to allege the facts constituting the breach of the contract.</p>

<p>Fire insurance — provisions of policy with respect to ownership and incumbrance of property construed — when insured relieved from obligation to serve proof of loss.</p> <p>A provision of a fire insurance policy, with respect to ownership of the property insured, relates to the quality of the title of the insured, and not to questions of liens or incumbrances.</p> <p>Although in construing the provisions of a standard fire insurance policy the former rule of strict construction no longer obtains, yet the plain provisions of the contract should not be extended by construction.</p> <p>A provision of a fire insurance policy that it shall be void “ if the subject of insurance be personal property and be or become encumbered by a chattel mortgage," should not be construed as embracing an equitable lien or interest in the property.</p> <p>A letter by a fire insurance company to an insured, constituting a definite and unequivocal denial of liability under its policy, relieves the insured from any obligation to comply with the provisions of the policy with respect to proof of loss.</p>

Appeal by the defendants, The New York Trust Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of June, 1916, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the relator, Empire Leasing Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1916, denying relator’s motion to punish the defendants for contempt.</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, Henry Edwards Huntington, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of May, 1916, granting plaintiff’s motion for a bill of particulars of a separate defense contained in the amended answer.

Appeal by the plaintiff, Arthur Walker & 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 19th day of April, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the New York Trial Term.

<p>Will — probate — proof of due execution — signature by testator making mark — expert testimony as to making of mark.</p> <p>In a proceeding for the probate of a will signed by the testator making a mark, the three attesting witnesses, one of whom was a lawyer, testified as to the due execution of the will. The lawyer testified that the mark was made in this way — the testator “put his fingers on the pen and I moved it,’’while the other two witnesses testified that he made the mark without assistance. The fact, however, according to the testimony of the three witnesses, that the testator signed the will by making the mark, is uncontradicted.</p> <p>Held, on all the evidence, that the will was properly signed and executed by the testator;</p> <p>That, under the circumstances, the surrogate did not err in rejecting the testimony of an expert by whom it was sought to prove that the mark by which the will was signed was not made by the testator.</p>

<p>Real property—restrictive covenant — buildings limited to one-family houses — erection of apartment house enjoined.</p> <p>Where a covenant running with lands for the benefit of adjoining grantees prohibits the erection of any building except “a detached dwelling house, * * * and that said house shall be constructed for one family only, * * * and that none of the above-mentioned buildings shall have a roof of the character or description known as a flat roof,” the erection of a modern twenty-family apartment house with a flat roof by one of the grantees will be enjoined, such building being prohibited by the restriction.</p> <p>Such injunction will be granted although on neighboring lands outside the restricted area modern apartment houses have been erected.</p>

Appeal by the defendant, Mary A. Hughes, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Essex on the 20th day of January, 1916, upon the decision of the court after a trial before the court without a jury. Judgment unanimously affirmed, with costs, on the opinion of Borst, J., at Trial Term.

Appeal by the plaintiff, Mary E. Beebe, from part of a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of Queens on the 27th day of February, 1915, upon the decision of the court after a trial at the Queens County Special Term.

Appeal by the plaintiff, Beatrice Finkelstein, from so much of 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 3d day of April, 1916, as dismisses her complaint herein upon the decision of the court after a trial at the New York Special Term.

<p>Corporations — suit to restrain dissolution proceedings — temporary injunction — evidence — joinder of causes of action.</p> <p>In a suit by the stockholders of a New York corporation against a foreign corporation and its directors, who were also the directors of the New York corporation, to enjoin the defendants from proceeding to dissolve the New York corporation and to compel them to account to it for certain profits, it was alleged that the dissolution proceedings had been instituted in order that the defendants might escape liability on a guaranty of the preferred stock of the New York corporation owned by the plaintiffs.</p> <p>Meld, on all the evidence, that the injunction should be granted.</p> <p>Even if causes of action were improperly joined by the plaintiff, it was not a bar to relief because the defendant made no complaint thereof, either by demurrer or answer.</p>

Appeal by the defendant, Illinois Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of February, 1916, upon the report of a referee appointed to hear and determine the issues.

Appeal by Charles P. Doelger, as general guardian, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 10th day of July, 1916, denying an application for the examination of the subscribing witnesses to the will.

Appeal by the plaintiff, Empire Leasing Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1916, denying its motion for an injunction pendente lite restraining defendants from interfering with certain sky signs.

Appeal by the defendant, Anais C. Bliss, 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 July, 1916, denying his motion to set aside the service of the summons upon him.

Appeal by the defendant, Atlantic Macaroni 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 31st day of' March, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of April, 1916, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, White Sulphur Springs, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in ' the office of the clerk of the county of New York on the 22d day of September, 1916, denying its motion to vacate the service of the summons herein.

Appeal by the relator, Joseph S. Schwab, 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 August, 1916, denying his motion for a peremptory writ of mandamus restraining the defendants from certifying at the coming primary and general election in 1916 to the existence of a vacancy in the office of the president of the board of aldermen of the city of New York or calling…

Reargument of an appeal by the defendant, William H. Foster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of May, 1915.

<p>Mandamus — when writ will be granted — application for writ commanding removal of obstructions from canal denied.</p> <p>A writ of mandamus is' an extraordinary remedy not demandable as matter of right, and whether it shall be granted in a given case rests in the sound discretion of the court.</p> <p>When such a remedy is sought, a clear and unquestioned legal right must be presented, for the writ will not issue in doubtful cases. In addition there must be no adequate or legal remedy to obtain the relief sought.</p> <p>Hence, a corporation with power to construct and maintain docks, piers and basins along the “ Gowanus Canal,” which has constructed slips and basins connected with said canal, is not entitled to a writ of mandamus against the president of the borough of Brooklyn, compelling the dredging of parts of the slips or arms to render them navigable and free from obstructions resulting or caused by -the discharge into said canal of the overflow sewers constructed or maintained by the city of New York, where there is uncertainty as to the cause of the obstructions and as to what part of it, if any, was caused by the discharge into the canal of the overflow sewers.</p> <p>There being questions of both law and fact, they should be determined in an action, and if the municipality is under a duty to dredge the slips and basins and fails to do so, there is an adequate remedy at law for the recovery of resulting damages.</p>

Appeal by the defendant, Charles Fowler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of November, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of November, 1915, denying defendant’s motion for a new trial made upon the minutes, plaintiff having stipulated to reduce the amount of the verdict.

Appeal by the defendant, Reginald H. Sayre, 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 March, 1916, resettling a decision and judgment herein.

<p>Injunction — safe deposit box rented jointly — injunction restraining safe deposit company from preventing free access to survivor — adverse claim by representative of decedent — when mandatory injunction should not issue.</p> <p>Although persons who rented safe deposit boxes jointly signed an agreement that, in the event of the death of either, the survivor should have the privilege of free access, it seems, that the safe deposit company, being to some extent a bailee, has a standing to resist the issuance of a mandatory injunction which restrains it from preventing the survivor from having free access where it is apparent that the survivor wishes to appropriate the contents of the boxes as against the adverse claims of the administratrix of the decedent who has not been made a party to the suit for the injunction.</p> <p>An injunction is mandatory when such is its effect no matter what words may be used therein.</p> <p>Mandatory injunctions are rarely granted pendente lite and only under most exceptional circumstances, as where affirmative action by the defendant pendente lite is necessary to preserve the status quo until a trial and judgment.</p> <p>The court has no power to grant the mandatory injunction aforesaid as it would destroy the status quo and would enable the plaintiff to obtain possession of the property contained in the safe deposit boxes, and hence the relief which she should obtain by final judgment, and especially so where the administratrix, as adverse claimant, is not a party to the action.</p> <p>Smith, J., dissented.</p>

Appeal by the plaintiff, John J. McDonald, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1916.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Suffolk, entered in the office of said Surrogate’s Court on the 19th day of April, 1915, fixing the taxable value of the remainder interest in the Townsend trust fund of $350,000 at the sum of $166,600 to be taxed at $1,666.

' Appeal by the defendant, Michael Zimmer, from a judgment of the Supreme Court of Kings county, rendered against him on the 21st day of January, 1916, convicting him of the crime of criminally receiving stolen property.

<p>Counties — establishment of hospital for tuberculosis patients — elections — referendum — constitutional law — payment for private accommodations by patients — failure to keep patients confined — power of Legislature to authorize referendum.</p> <p>Where after a board of county supervisors had voted to establish a county hospital for tuberculosis and had acquired lands for that purpose, the County Law was amended to provide that the supervisors might submit the question of establishing such hospital to the voters of the county, it was proper for them to rescind their former resolution and submit the question to a popular vote, and in so doing they were not required to inform the voters as to all the considerations implied in the proposal relating to. the possible future expenses of such an institution.</p> <p>It is not a constitutional objection to the establishment of such county hospital that it is intended that county residents and others outside the county may have private accommodations if they have means to pay therefor.</p> <p>Nor is it a constitutional objection that inmates of the institution are not to be kept in strict seclusion and confined within its gates.</p> <p>It was constitutional for the Legislature to authorize a referendum to the voters of counties of the question as to the establishment of such county hospital, and also to authorize a bond issue for such object.</p>

Appeal by the defendant, Frank E. Pierson, as president, and others, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of March, 1916, upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the plaintiff, George E. Stockwell, from a judgment and final order of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 7th day of August, 1915, upon the decision of the court, both sides having moved for the direction of a verdict at the close of the case. Judgment and order affirmed, upon the opinion of Mr. Justice Yaw Kirk.

<p>Appeal by the defendants, Leo Wreschner and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of November, 1915, upon the decision of the court, a jury having been waived.</p> <p>Judgment affirmed, with costs, on opinion of Weeks, J.</p>

<p>Guaranty and suretyship — liability of surety for partnership after change therein — when guaranty under institutional name does not continue in force beyond existence of firm — equity — suit to recover payments made under mistake of fact.</p> <p>A surety for a copartnership cannot be held upon his obligation for debts contracted after a change in the personnel of the firm.</p> <p>A contract of guaranty by a partnership terminates with the existence of the firm, in the absence of ambiguity or specific words to show that the parties intended it should survive change in the firm and inure to the benefit of the new firm as well as the old.</p> <p>A guaranty under an institutional name does not continue in force beyond the existence of the identical firm for which it was given.</p> <p>Hence, a guaranty executed by the “ George W. Hallock Bank” in said name by “ William M. Hallock, Cashier,” which did not refer to the copartnership of Mary H. Hallock and Louise N. Hallock, then owners of the bank, is not a continuing security for the bank as an institution.</p> <p>Where such an undertaking was given for the security of deposits by a county treasurer, and after the death of one member of the firm which was unknown, both to the sureties and the county treasurer, said sureties made payment to the treasurer of losses occurring after the . change in the firm, they may recover the moneys so paid upon the theory that payment was made under a mistake of fact, and without knowledge of the change in the firm.</p> <p>The failure of the sureties to make an investigation by which they might have ascertained the true situation does not operate as a bar to the maintenance of their action.</p>

Appeal by the petitioner, Bernard J. Halligan, 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 Rensselaer on the 4th day of April, 1916, denying his application for a writ of mandamus. Order affirmed, without costs, on the opinion of Hasbrouck, J., at Special Term.

Appeal by the defendant, Standard Plate Glass and Salvage Company, Inc., 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 14th day of June, 1915, overruling defendant’s demurrer to the complaint and directing the entry of judgment absolute, and also from the judgment entered in said clerk’s office on the same day pursuant to said order.

Appeal by the defendant, John Cecil Graham, 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 February, 1916, as amended by an order entered in said clerk’s office on the 25th day of February, 1916, overruling a demurrer to the complaint. The hearing was brought on as a contested motion and leave was granted to plead over.

Appeal by the defendant, The Delaware and Hudson Company, from a judgment of the Supreme Court in favor of the ■plaintiff, entered in the office of the clerk of the county of Richmond on the 5th day of May, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of May, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Real property—tax—credit of payment to wrong owner by error of municipal authorities — suit to charge lands of persons benefited with lien — foreclosure of lien — subsequent sale of lands on foreclosure.</p> <p>Where owing to a confusion in the assessment rolls of a city, two separate and distinct parcels of land owned by different persons were described as being of the same number and located on the same block in the same ward, and one of the owners in good faith paid his assessment but the tax clerk inadvertently credited the amount to the other landholder, the person who made the payment, being unable to obtain reimbursement from the person benefited thereby, may maintain a suit in equity to impress the lands with a lien for the amount of the payment. In such action the court may decree that the hen be foreclosed and the land sold in satisfaction thereof.</p> <p>In the circumstances the plaintiff was not a volunteer so as to be unable to make himself a creditor of the owners of the other lots by thus paying their debt.</p> <p>The aforesaid remedy exists even after the premises pass through a sale on foreclosure, subsequent to the mistaken tax payments, where the persons purchasing on foreclosure advance no cash other than the amount of the referee’s fee.</p> <p>In the circumstances it is immaterial that the decree foreclosing the lien gave a remedy by sale in advance of the time when the city could have enforced payment of the taxes due, thus accelerating the remedy, for even in the absence of a tax clause in a mortgage the mortgagee, by the law of this State, may pay the taxes and add them to the lien.</p>

Appeal by the plaintiff, Harry Brinherg, 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 September, 1916, denying his motion for leave to serve a supplemental complaint upon the ground that the proper remedy is to move to serve an amended complaint.

Appeal by the plaintiff, Keilbert Construction Company, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx 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 19th day of January, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by Charles MacDonald, from an order of the Supreme Court, made at the Columbia Special Term and entered in the. office of the clerk of the county of Albany on the 27th day of April, 1916, denying his application for a writ of mandamus.'

Appeal by Frances A. McCahill from so much of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 21st day of December, 1915, as adjudged that the $250 per month directed to be paid her by the will was not in addition to the amount of $250 a month agreed to be paid to her by the deceased by a contract dated September 30, 1909; that Thomas J. McCahill, Jr., has a life estate in the realty under the will and…

Appeal by the plaintiff, Mary G-. Conboy, as treasurer, 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 6th day of April, 1916, upon the dismissal of the complaint by direction of the court at the opening, and also from the order entered in said clerk’s office on the 11th day of April, 1916, dismissing the complaint.

Appeal by the defendant, William H. Foster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of January, 1916, upon the verdict of á jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case.

Appeal by the defendant, Michael J. Sisto, from a judgment of the Supreme Court convicting him of murder in the second degree, which judgment was entered in the office of the clerk of the county of Kings on the 27th day of December, 1915.

<p>Decedent’s estate—when legatee may elect to take capital sum bequeathed to buy annuity.</p> <p>A bequest of a sum to buy an annuity gives an election to take the money as a capital sum, and the legatee may insist that no annuity shall be bought, especially where she is past middle life and an investment against her wish and obvious interest in an annuity for her own life would have aleatory elements in which the probabilities might be all against her.</p>

Appeal by the defendant, The Fidelity and Casualty Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of September, 1916, denying its motion to compel the plaintiff either to state separately the two causes of action contained in the third cause of action alleged in the complaint or in the alternative to strike out said third cause of action as irrelevant…

Appeal by the defendant, American Bonding Company of Baltimore, 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 25th day of March, 1916, upon the decision of the court after a trial at the Kings County Trial Term, a jury having been waived.

Appeal by the defendant, Southern Pacific 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 '24th day of June, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 25th day of June, 1915, denying defendant’s motion for a-new trial made upon the minutes.

<p>Municipal corporations—negligence — injury by fallen limb obstructing street — evidence showing negligence of municipal authorities — failure to indicate obstruction by light at night time.</p> <p>Action against a city to recover damages for personal injuries received by the plaintiff who in the night time drove his wagon against the limb of a tree which was lying across a roadway and which, it was alleged, the defendant was negligent in not removing within a reasonable time after it fell, or in permitting the obstruction to remain without a light to indicate its presence. It appeared that the fall of the limb was caused by a storm of snow and wind of extreme severity which caused many trees in the city to be blown down, as well as causing various other obstructions in the public streets. At the time of the accident the limb which injured the plaintiff had obstructed the street for twenty-nine hours and, it appeared, had not been located by the authorities within that time although they had been in the vicinity and could have discovered the presence of the limb and affixed a light thereon, as they did in other cases, had then investigation been more thorough, involving only an expenditure of ten or fifteen minutes additional time. On all the evidence,</p> <p>Held, that the jury were justified in finding that the city was negligent in failing to discover the fallen limb, or in failing to place a light thereon, and that a judgment for the plaintiff should be affirmed.</p>

<p>Waters and watercourses — eminent domain — condemnation of lands abutting on G-owanus bay for canal purposes — title of owners of uplands to lands formerly under tide waters — constitutional law — grant of lands under waters — chapter 491, Laws of 1884, construed — respective powers of State and Federal government — condemnation of lands for street purposes — damages — increased value of lands by condemnation for canal purposes — evidence—acts of Fed- eral authorities.</p> <p>Under the common law of England the title of lands under tide waters vested in the King, who could grant and convey the same; but the dominion and control of the waters in the interest of commerce and navigation was exercised by Parliament for the benefit of all the subjects of the kingdom.</p> <p>Under the Constitution of this State the title of lands under tide waters vested in the People, who, through their Executive and Legislature, exercised the powers formerly vested in the Crown and Parliament, in trust, however, for the benefit of the public.</p> <p>Pursuant to the power aforesaid, the Legislature may make grants of lands under waters to individuals, designed to be in aid of commerce and not inconsistent with public rights, but these grants are subject to the consent of Congress, which, by the Federal Constitution, is empowered to regulate interstate and foreign commerce. This Federal power is now exercised by the Secretary of War.</p> <p>The owners of uplands abutting on tide waters are entitled to easements and riparian rights in excess of those possessed by the public and may, with the consent of the Legislature and the approval of the Secretary of War, erect wharves, piers and bulkheads and fill in the lowlands so as to facilitate navigation. Improvements so made become a part of the realty and vest in the riparian owners a right of use in the nature of a grant, thus creating a property right of which they cannot be deprived without consent, except by due process of law or by eminent domain.</p> <p>Chapter 491 of the Laws of 1884, which confirmed certain grants of lands under waters made by chapter 702 of the Laws of 1873, which was passed by a two-thirds vote of the members of each branch of the Legislature, did not grant an exclusive privilege, immunity or franchise, as prohibited by section 18 of article 3 of the State Constitution, for it granted lands under waters to upland owners which was a grant of public property which could be authorized by a two-thirds vote under section 20 of article 3 of the Constitution.</p> <p>Quaere, as to whether the Legislature by such grant could exclude the public from the use of bulkheads constructed by the riparian owners.</p> <p>Although the owners of uplands abutting upon Gowanus bay in the harbor of New York, had filled in lowlands under the authority of statutes enacted prior to chapter 491 of the Laws of 1884, and these statutes did not in terms grant a fee, they nevertheless obtained property rights therein in the nature of a grant, and as said statute of 1884 stated that it confirmed certain “grants” under the prior statutes, the title of the owners to the exterior boundary line appearing upon the prior maps was ratified and confirmed as a title in fee simple. Hence, upon the condemnation of said lands for canal purposes, the owners are entitled to compensation.</p> <p>But such owners are not entitled to compensation for streets within said area which were condemned by the city of New York, on the theory that the streets have been abandoned by the municipality where they were specially located by act of Legislature which declared them to be opened and established, if no action or proceeding has been brought to have them declared abandoned.</p> <p>It seems, moreover, that if such proceedings had been brought the only effect would have been to destroy the public easement in the streets, leaving the fee of the State unimpaired.</p> <p>Held, that there is nothing in chapter 491 of the Laws of 1884 which indicates an intention on the part of the Legislature to give to the owners of uplands the fee of streets within the area previously condemned.</p> <p>But there has been no impairment in the value of lands abutting upon the waters of Growanus bay by the appropriation of lands under the waters of said bay for canal purposes where the access of said owners to the sea is in no way impaired and, in fact, the use of the lands for commercial purposes and the loading and unloading of merchandise is greatly benefited.</p> <p>As all grants of land under tide waters in this State are subject to the approval of the Federal government through the Secretary of War, the prior action of the Secretary of War in relation to the abandonment of certain basins is admissible in a proceeding before the Board of Claims involving the right to damages for the appropriation of lands which had formerly been lands under tide waters.</p>

Appeal by the Home Rule Tax Association of the State of New York, Unincorporated, and by Charles S. Mereness, individually and as president of said association, and Francis A. Willard, individually and as secretary of said association, 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 13th day of April, 1916, denying a motion made by the appellants to dismiss this proceeding because of…

<p>Workmen’s Compensation Law — death from dilatation of heart — excessive physical strain — appeal — when findings of Commission as. to facts conclusive.</p> <p>The State Industrial Commission is justified in making an award to the widow of an employee who, while engaged in bending heavy steel rods which required great physical effort, died suddenly through dilatation of the heart, and this although he may have had a previous cardiac lesion.</p> <p>A finding of the Commission upon a question of fact is conclusive upon the Appellate Division, the only question being whether there is any evidence to sustain the finding.. If there is no evidence the finding may be treated as an error of law.</p>

Appeal by the People of the State of New York and by the defendants, Joseph Joyce and others, from an order of the Supreme Court, made at the Dutchess County Special Term and entered in the office of the clerk of the county of Albany on the 6th day of January, 1916, sustaining a writ of habeas corpus and discharging the relator from custody:

Be argument of an appeal by defendant, Eagle Savings and Loan Company, 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 1st day of July, 1915, upon the decision of the court after a trial at the Kings County Special Term.

<p>Appeal by the defendant, City National Securities 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 22d day of December, 1915.</p>

<p>Appeal by the defendant, Lehigh Valley Coal Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of March, 1916, as resettled by an order entered in said clerk’s office on the 30th day of March, 1916, granting plaintiff’s motion to amend his summons and complaint nunc pro tunc.</p>

Appeal by the plaintiff, John Fischer, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 27th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of November, 1915, denying his motion for a new trial made upon the minutes.

Appeal by the defendant, John Henshaw, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of May, 1916, adjudging him guilty of a contempt of court, and also from an order entered in said clerk’s office on the 31st day of May, 1916, denying defendant’s motion to vacate an order for his examination in supplementary proceedings.

<p>Public schools — common schools of city of Utica — contract for repairs or erection of schoolhouses — Laws of 1848, chapter 137, section 13.</p> <p>The commissioners of common schools of the city of Utica have authority under section 13 of chapter 137 of the Laws of 1843 to contract for the repair of existing or the erection of new schoolhouses.</p> <p>Said statute has not been repealed or superseded by subsequent enactments.</p>

Appeal by the plaintiff, J. Fred Manny, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 15th day of July, 1914, upon a decision of the court dismissing the complaint upon the pleadings after a hearing at the Albany Special Term.

Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of July, 1915, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the plaintiff, George 0. Van Tuyl, Jr., as Superintendent of Banks, 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, granting respondent’s motion for judgment on the pleadings.</p>

<p>Motion by the defendants, Isaac Neuberger and others, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the rendition of an interlocutory judgment in plaintiff’s favor upon the decision of the court after a trial at the New York Special Term in April, 1914.</p>

Appeal by the defendants, H. S. Kerbaugh, Incorporated, 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 21st day of September, 1916, denying their motion to require plaintiff separately to state and number the causes of action set forth in the complaint.

Appeal by the plaintiff, Alexander Deutsch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of November, 1915, dismissing the complaint upon the decision of the court after a trial before the court, a jury having been waived.

Separate appeals by the defendants, Lawson Purdy and others, as commissioners, from two orders of the Supreme Court, one in regard to the taxes for each year, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of May, 1916, denying their motions to vacate orders granting writs of certiorari herein, and to dismiss said writs.

<p>Taxes—when petition for writ of certiorari to review assessments made by corporation or by an attorney representing it should be dismissed — expert witness — application by agent to reduce assessment — Tax Law,' section 37, construed—effect of failure to appear before tax commission when summoned pursuant to section 37 of Tax Law — illegal practice of law by corporation.</p> <p>Where the president of a realty corporation consulted an attorney and authorized him to attempt to obtain a reduction of tax assessments, and the latter instead of attending to it personally, turned the matter over to a business corporation which he had organized and a written application for the review and reduction of the assessment was presented to the tax commissioners, signed by the president of the corporation who described himself as agent for the owner of the property, and in the body of the application was a request that all notices with regard thereto should be addressed to the corporation, and a notice was in due course sent to the president of "the corporation as provided by section 37 of the Tax Law, requiring the person assessed or his agent or representative to appear and be examined respecting the complaint, and no one appeared, and the president of the corporation declined in writing so to do, a petition for a writ of certiorari to review the order of the commissioners refusing to reduce the assessment, signed and verified by the president of the corporation, but sued out by an attorney employed by it, should be dismissed, first, because there had not been a compliance with the Tax Law in making the application to the tax commissioners for a reduction of the assessment in that the person undertaking to represent the owner of the property as agent had. never been appointed by it and had no knowledge of the facts, and that he refused to appear before the tax board when summoned, and second, because the proceeding involved the practicing of law by the corporation or in the name of an attorney employed by it in violation of the statute.</p> <p>The property owner or person assessed may, however, apply to the tax board for the reduction of the assessment through a lay agent, if said agent be a person properly qualified and duly authorized, and the application be made in good faith, with the honest purpose of obtaining favorable action by the board.</p> <p>A design by such a corporation to use as an expert witness before the tax board and the court a person whose compensation would be entirely contingent upon the successful outcome of the proceeding in which he was employed, is most objectionable.</p> <p>The purpose of section 37 of the Tax Law, providing that complaints as to assessments must be verified “by the person assessed, * * * or by some person authorized to make such statement, and who has knowledge of the fact stated therein," is that the tax board should be put into possession of reliable information from one who knows the facts to the end that it may act intelligently upon the application.</p> <p>A corporation which has had no prior relation to, or knowledge of, the property assessed cannot be thus qualified.</p> <p>The tax commission cannot be said to have waived a defect in a complaint made by a corporation because they acted thereon, where the defect did not appear upon the face of the petition.</p> <p>If a person filing a complaint against the assessment of his property, willfully refuses to appear before the assessors when ordered to do so, under section 37 of the Tax Law, he forfeits his right to have his application granted, and cannot obtain a review by certiorari.</p> <p>DoWMse, J., dissented, with opinion.</p>

Appeal by the defendants, Daniel J. Hegeman and another, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 24th day of April, 1916, directing the defendant Hegeman to grant the application of the relator and issue to him a liquor tax certificate.

Appeal by Fred Murray and another from an award of the State Industrial- Commission, entered in the office of said Commission on the 8th day of December, 1915, and from a further award entered in said office on the 3d day of February, 1916.

Appeal by the defendant Wells-Fargo and Co. Express, from a judgment of the County Court of Steuben county, entered in the office of the clerk of said county on the 12th day of July, 1915, affirming a judgment of the City Court of the City of Coming in plaintiffs’ favor, and also, as stated in the notice of appeal, from the decision of the county judge upon the said appeal to the County Court.

Appeal by the Lehigh Valley Bailroad Company from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of March, 1914, as resettled by an order entered therein on the 1st day of April, 1914, denying its application for a writ of certiorari to review the determination of the Comptroller in refusing to revise certain franchise taxes imposed upon it.

Appeal by Ernest J. Linson from part of a decree of the Surrogate’s Court of the county of Ulster, entered in the office of said Surrogate’s Court on the 6th day of July, 1916, adjudging, among other things, that appellant is not entitled under the will of John J. Linson, deceased, to share in either the principal or the income of said testator’s estate, and that he is not entitled to any share in the principal of the trust fund or the income thereof created by said will for…

Appeal by the defendant, Vulcan 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 Schenectady on the 13th day of March, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Israel T. Deyo and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 21st day of May, 1915, upon a dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 15th day of April, 1915, granting defendants’ motion for a nonsuit and directing that judgment be entered thereon.

Appeal by the defendant, Arthur B. Martin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 24th day of February, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Insurance — life insurance—agreement of insurance agent to notify father of beneficiary if insured failed to pay premiums — when such promise not binding upon insurer — lack of consideration and mutuality —power of agent limited by terms of policy.</p> <p>Where a husband held a life insurance policy upon his own life, in which his wife was named as beneficiary, he reserving, however, a power of substitution, a promise made by a local agent of the insurer to the father of the wife to notify hhn if the insured should make default in payment of premiums so that the father could keep the policy alive for the benefit of his daughter, was not binding upon the insurer so as to entitle the wife to hold the company liable for the amount'of the policy on her husband’s death, where he had in fact allowed the policy to lapse by non-payment of premiums.</p> <p>Such promise made by the agent to a person having no connection with the policy was without legal consideration, and also lacked mutuality, for it is the essence of estoppel, of waiver and of contract that there shall be reciprocal obligations or considerations, and these between the parties • to the agreement.</p> <p>Moreover, the alleged waiver sought to be established by such promise of the agent was not binding on the company where the policy expressly provided that no agent had power to modify the contract, or, in the event of lapse, to reinstate the insured, or to extend the time of payment of any premium.</p>

Appeal by John J. Murdter and another, from an award and order of the State Industrial Commission, entered in the office of said Commission on the 9th day of March, 1916.

<p>Real property—deed of trust for benefit of creator—provision that at beneficiary’s death trustee shall convey to heirs —when deed does not create vested or contingent interest in heirs which is alienable — when judgment creditor of heir cannot sue to subject property to judgment — election of heirs to take under the statute rather than by trust deed.</p> <p>A deed of trust of real estate executed for the benefit of the grantor, who is to be paid from the income a certain sum yearly, unless in the discretion of the trustee he shall deem it most for the benefit of the grantor that a larger sum be paid, which further provides that the trustee, if he desires, may relinquish the trust and reeonvey the premises to the grantor, or may appoint another trustee in his place, and which further provides that upon the death of the grantor the trustee shall convey the premises not sold to the heirs at law of the grantor, or the balance remaining if a sale of the lands has been made, does not create any vested or contingent interest whatever in the grantor’s heirs at law, during his lifetime, which is descendible, devisable or alienable.</p> <p>Hence,' a judgment creditor of an heir at law and of his wife to whom he had assumed to convey his interest in the trust estate during the grantor’s lifetime cannot, while the grantor is still living, by a suit in equity subject the interest in the trust funds to the payment of the judgment upon the theory that the judgment debtor has a present interest in the real estate.</p> <p>Under such deed of trust the heirs would not be bound to accept a deed from the trustee, but might stand upon their legal rights and take by inheritance rather than under the deed.</p> <p>Page, J., dissented, with opinion.</p>

<p>Appeal by the defendant, Graf Realty Holding Company, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of January, 1916, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 2d day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, All-Package Grocery Stores Co., Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of August, 1916, granting defendant’s motion to vacate an order of arrest.

Appeal by the defendants, Charles H. Werner and others, from part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1916, as resettled by an order entered in said clerk’s office on the 16th day of June, 1916.

Appeal by the defendants, Francis Dykes and others, personally and as trustees, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of October, 1915, upon the verdict of a jury for §5,250, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Andrew Buczynski, from a judg-. ment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 30th day of December, 1915, upon the decision of the court, a jury having been waived, and also from an order entered in said clerk’s office on the 6th day of January, 1916, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the-plaintiff, Bernard Brady, from so much of a judgment of the County- Court of Erie county in favor of the defendants, entered in the office of the clerk of said county on the 1st day of March, 1916, as decrees that the lien filed herein by John Smith, one of the defendants, is a good and subsisting lien on the property described in the complaint, and that the defendant John Smith is entitled to enforce said lien against said property, and also to recover his…

Appeal by the defendant, David Brümberg, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of June, 1916, upon the verdict of a jury for eighty-seven dollars and fifty cents, 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 Central Trust Company of New York, as trustee, appearing specially, from an order of the Supreme Court, made at the Allegany Special Term on the 22d day of January, 1916, as resettled by an order entered in the office of the clerk of the county of Allegany on or about the 14th day of February, 1916, amending the several petitions of the receiver of the defendant railroad company to this court verified respectively on the 30th day of March, 1909, 18th day of June,…

<p>Mortgage — sale of mortgaged, chattels by mortgagor in possession — title of purchaser — when mortgagee cannot hold mortgagor for impairment of security.</p> <p>A mortgagor of chattels, rightfully in "possession thereof, may sell the property until such time as he makes default, and the purchaser takes • title subject to the lien of the mortgage. And this is so, whether or no the purchaser has knowledge of the mortgage, for he takes the same title as the mortgagor had, no more and no less.</p> <p>Hence a sale of the mortgaged property does not entitle the mortgagee to sue to recover damages on the theory that the mortgagor has wrongfully impaired the security of the mortgage, there being nothing to show that the mortgagor is insolvent or that any deficiency resulting from a foreclosure is uncollectible.</p>

<p>Appeal by the plaintiff, Charles H. May, 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 22d day of May, 1916, affirming a judgment of the City Court of the City of New York dismissing the complaint and also affirming an order of said City Court denying plaintiff’s motion for a new trial.</p> <p>An appeal is also taken from the order entered in the office of the clerk of the City Court of the City of New York making the determination and order of the Appellate Term the order of said City Court and from the judgment of affirmance entered thereon in the office of the clerk of said City Court.</p>

Appeal by the defendant, Emma Jenkins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 30th day of September, 1915, upon the decision of the court after a trial at the Onondaga Special Term. Judgment affirmed, with costs, upon the opinion of Db Angelis, J., delivered at Special Term.

Cross-appeals by the defendant, A. L. Swett Electric Light and Power Company, and by the plaintiff, Casualty 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 Orleans on the 6th day of June, 1916, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, William H. Wood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 26th day of February, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Henry Sulger 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 Broome on the 24th day of June, 1915, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of December, 1915, denying defendants’ motion for a new trial made upon the minutes.

<p>Motor vehicles — negligence — passenger alighting from trol-ley car struck by automobile—proof justifying recovery.</p> <p>The plaintiff, on alighting from a south-bound trolley carat a street intersection and transfer point and during the “rush” hour of business, passed to the rear of the ear she left and in front of a north-bound trolley car which was also at a standstill, and as she cleared the front of the latter car, was struck by the defendant’s automobile which he drove through the narrow space between the trolley and the east curb line without sounding a horn.</p> <p>Held, that the jury were justified in finding the defendant guilty of negligence and the plaintiff free from contributory negligence.</p> <p>Contributory negligence cannot be attributed to the plaintiff because she did not look to the south before she was struck, for the view in that direction was completely obstructed by the standing car and the law does not require that one do the impossible.</p>

Appeal by the defendant, Frank Kimball Scribner, as executor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 2d day of May, 1916, upon the decision of the court after a trial at the Orange Special Term.

<p>Appeal, by the plaintiff, Elias Feldman, 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 2d day of February, 1916, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 9th day of February, 1916, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff from a judgment dismissing her complaint.</p>

<p> Party— right to intervene. </p>

<p>Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial.</p>

<p>Submission of a controversy upon an agreed statement of facts.</p>

<p>Appeal from an order granting the plaintiff’s motion for a preference.</p>

Appeal by an attorney from so much of an order as directs him to pay over to the chamberlain of the city of New York $7,353.54 pending the result of this proceeding.

<p>Appeal from an order directing the cancellation of a notice of lien filed in the office of the comptroller of the city of New York against awards made in condemnation proceedings.</p>

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

<p>Appeal from an order denying the defendant’s motion to set aside an inquest and open the judgment taken by default.</p>

<p>Appeal from an order granting the defendant’s motion and sustaining a demurrer to the complaint.</p>

<p>Appeal from an order directing that a juror be withdrawn and that the trial entered upon before him be declared a mistrial.</p>

<p>Appeal from an order, made at Special Term, denying a motion to dismiss the complaint because of plaintiff’s unreasonable neglect to proceed.</p>

Appeal by the plaintiffs from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 23d day of February, 1916, in favor of the defendant.

Reargument of an appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 3d day of Hay, 1914, dismissing the complaint at the close of his ease.

Appeal by the defendant from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 13th day of November, 1915, in favor of the plaintiff; and from an order, entered in said office on the 13th day of November, 1915, denying its motion for a new trial.

Appeal by the defendants from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 10th day of June, 1915, granting relator’s application for a peremptory writ of mandamus, and also from an order of said court entered in said office on the 29th day of June, 1915, denying their motion for a reargument.

<p>Appeal from a judgment of the Supreme Court, entered in the Madison county clerk’s office on the 31st day Of July, 1915, and from an order entered on the 17th day of August, 1916, denying a motion for a new trial.</p>

<p>Appeal from an order granting the plaintiff’s motion for a bill of particulars as to defendant’s separate defenses.</p>

<p>Appeal from a judgment entered on a verdict and from an order denying a motion for a newjrial.</p>

<p>Appeal from a judgment entered upon the report of a referee.</p>

<p>Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 12th day of August, 1915, dismissing the complaint, and from an order entered in said clerk’s office on the 11th day of August, 1915, denying a motion for a new trial.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 14th day of January, 1916, in favor of the defendant, and also from an order entered on the 21st day of January, 1916, denying a motion for a new trial.

<p>Husband and wife — annulment— counsel fees.</p>

<p>Appeal by the plaintiff from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 31st day of March, 1916.</p>

Appeal by the defendant from a judgment, entered in the Erie county clerk’s office on March 8, 1916, in favor of plaintiffs for $909.46, damages and costs; also from an order denying the defendant’s motion for a new trial.

<p>Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on January 24, 1916, in favor of plaintiff for $639.09, damages and costs; also from an order entered in said clerk’s office on January 29, 1916, denying the defendant’s motion for a new trial.</p>

Appeal by the plaintiff from a judgment of the Special Term, entered in the office of the clerk of the county of Kings on or about the 21st day of March, 1916, dismissing his complaint on the ground that it did not state facts sufficient to constitute a cause of action.