Volume 175 — New York Appellate Division Reports

<p>Workmen’s Compensation Law — injury to employee engaged to guard steamship cargoes — employment not hazardous.</p> <p>A company engaged in the business of supplying watchmen to steamship companies for the sole purpose of guarding their cargoes is not engaged as a longshoreman, nor is the watchman furnished a longshoreman, nor is the occupation of said watchman a hazardous employment within the meaning of the statute. Hence, where such watchman while engaged in his duties on a pier was injured by an accidental fall, he is not entitled to an award.</p> <p>To justify an award it is not only necessary that the employer be engaged in a hazardous occupation, but the employee must likewise be engaged in a hazardous employment.</p> <p>It is the character of the employment, not the particular place where the accident happened, which determines the classification.</p>

Certiorari issued out of the Supreme Court and attested on the 10th day of May, 1915, directed to the Conservation 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 approving an application by the village of Sidney, N. Y., for the construction of a municipal water system.

Appeal by the defendants, International Trust Company and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1915, setting aside the verdict of a jury in favor of the plaintiff for six cents and granting a new trial on the ground of the insufficiency of the damages.

<p>Appeal — direction of verdict — review by Appellate Division—jury trial — insurance — action on fire insurance policy — parties — dry trust—waiver of non-joinder — damages — when false swearing by insured in tax proceeding relevant in action on policy of fire insurance.</p> <p>Where, after the jury had deliberated upon the issues for some time without reaching any agreement, both parties moved for the direction of a verdict in their favor, and neither party asked to have any question of fact submitted to the jury, and thereupon the trial justice directed a verdict for the plaintiff, there was not a trial without a jury so as to give the Appellate Division power under section 993 of the Code of Civil Procedure to review all questions of fact and of law.</p> <p>Under such circumstances the Appellate Division cannot consider questions as to the credibility of the witnesses or the weight of the evidence, but can only reverse or modify the judgment if there is no evidence tending to sustain it, or if it is otherwise contrary to law.</p> <p>Where, in an action on a policy of fire insurance, it appears by the terms of the policy that the loss is made payable, if any, to a person of the same name as the plaintiff, with the added words “as trustee,” the words will be treated as mere words of description, and not as designating a representative capacity, where no cestui que trust is named. The trust is, therefore, a dry trust.</p> <p>Even if it should be held that the plaintiff and the person mentioned in the policy are different persons the objection of non-joinder not having been raised by demurrer or answer is waived.</p> <p>The policy provided as follows: “§25,000 on the brick and stone building excluding cost of excavations and foundations of building below the level of the ground * * *.”</p> <p>Held, that an item of damage claimed by the plaintiff to piers and certain walls was not excluded by the provision of the policy “excluding cost of excavations and foundations of building below the level of the ground,” the evidence establishing that such piers were a part of the foundation.</p> <p>Where a Are insurance policy provides that “ The loss or damage * * * shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality,” the damages should be assessed under said provision, although the assured made repairs by another method costing less.</p> <p>Alleged false swearing by an insured in proceedings for the reduction of tax assessments is only relevant or material in an action on the policy to affect the credibility of the plaintiff, and is not admissible to show that the policy was void, because of fraud and false swearing in violation of the provision thereof.</p>

Appeal by the defendant, New York Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of January, 1916, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, Tony Bruno, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, Part VI, rendered against him on the 24th day of November, 1915, convicting him of an attempt to commit grand larceny, and also from an order denying his motion for a new trial.

Appeal by the defendant, Orrin L. Taylor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 13th day of October, 1915, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Mary Hoff, 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 28th day of June, 1916, upon the decision of the court after a trial before the court without a jury.</p>

Appeal by the United States Fidelity and (Guaranty 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 10th day of June, 1916, confirming a report of a referee and allowing one-half of its claim of $8,182.60 to be paid from any surplus remaining after all legal and proved claims which accrued against the Metropolitan Surety Company on or prior to January 6, 1909, shall have been…

<p>Workmen’s Compensation Law—statute construed — award for permanent partial disability, and also for temporary total disability from same accident approved — compensation for temporary disability while disabled by permanent disability and being compensated therefor — appeal — determination by Commission of questions of fact final.</p> <p>Where a woodworker while cutting a piece of wood with a circular saw accidentally cut off his second finger and severely lacerated his thumb and index finger, and the State Industrial Commission found as a conclusion of fact that the injuries to his thumb and finger, irrespective of the loss of his second finger, would have disabled him for a period of-ten weeks from the time of the accident, an award for the injuries to his thumb and index finger of two-thirds wages for a period of eight weeks and for the loss of his second finger of two-thirds wages for the further and subsequent period of thirty weeks, should be affirmed.</p> <p>An employee entitled to compensation for permanent partial disability may also be allowed compensation for temporary total disability for injuries arising out of the same accident and terminating within the period of the running of the award for permanent partial disability.</p> <p>A claimant is not entitled to receive any compensation on account of temporary disability while being disabled from working by reason of the permanent disabilities and being compensated therefor.</p> <p>The determination by the State Industrial Commission of the period of disability of a claimant is one of fact and is final.</p> <p>The application of the provision of section 15 of the Workmen’s Compensation Law to the effect that compensation for the specific injuries constituting permanent partial disability shall be in lieu of all other compensation, is limited to such specific injuries.</p>

Appeal by Louis F. Leland 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 27th day of July, 1916, denying his motion for the examination of the respondent before the trial or hearing on the objections filed relating to the qualifications of the petitioner to act as executor of the last will and testament of Francis L. Leland, deceased.

Separate appeals by Laletta Leland and others, and by Frank R. Leland and another, 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 20th day of July, 1916, granting the application of the respondent for the issuance of letters testamentary to him as executor of the last will and testament of Francis L. Leland, deceased, pending an appeal from a former decree directing the issuance of said letters and…

<p>Separate appeals by the defendants, Laletta Leland and others, and the defendants Frank R. Leland and another, 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 12th day of July, 1916, overruling the objections of the appellants to the issuance of letters testamentary upon the will of Francis L. Leland, deceased, to the respondent Timothy M. Cheesman, and granting to him letters testamentary thereon.</p>

Appeal by the defendant, Santiago P. Cahill, as receiver, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 26th day of April, 1916, affirming a judgment of the City Court of the City of New York in plaintiff’s favor.

Appeal by the defendant, The Ocean Accident and Guarantee Corporation, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of December, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Landlord and tenant — negotiations between tenant and agent of owner constituting contract for lease within meaning of section 259 of Real Property Lav/ — purpose of statute — action to compel execution of lease — temporary injunction.</p> <p>A letter by the owner of property to her agent with whom she had directed a tenant to negotiate, stating that she was willing to renew the lease, is equivalent to an offer directly made to the tenant, and when accepted by it becomes a binding contract, within the meaning of section 259 of the Real Property Law, providing that a contract for a lease “ is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the lessor or grantor, or by his lawfully authorized agent. ”</p> <p>The purpose of said statute is to prevent fraud in the claiming of an oral contract giving the right to possession of real property where none exists.</p> <p>The plaintiff in an action to compel the execution of a lease in accordance with such an agreement between it and the agent of the owner is entitled to a temporary injunction.</p>

Appeal by the defendants, William Goldberg and another, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of St. Lawrence on the 12th day of April, 1916, overruling a demurrer to the amended complaint and denying defendants’ motion for judgment on the pleadings.

<p>Appeal by the defendant, Lehigh and Wilkesbarre Coal Company, from an order of the Supreme Court, made at the Queens County Special Term, denying its motion ffir a new trial on the ground of newly-discovered evidence.</p> <p>Order affirmed, with costs, on the opinion of Mr. Justice Garretson at Special Term.</p>

Appeal by the defendant, The Yew York Central and Hudson Biver Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 3d day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1915, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Russell M. L. Carson, from an order and judgment of the County Court of Warren county, entered in the office of the clerk of said county on the 27th day of July, 1916, reversing a judgment of the Glens Falls City Court in defendant’s favor.</p>

<p>Appeal by Arthur Leslie 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 '7th day of March, 1916.</p>

<p>Appeal by the defendant, George D. Eighmie, from a judgment of the Supreme Court in favor "of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1916, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 17th day of April, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Edward 0. Le Roy, from so much of an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Schenectady on the 12th day of June, 1916, as resettled by an order entered in said clerk’s office on the 3d day of July, 1916, as allows the plaintiff a counsel fee of $400.</p>

<p>Workmen’s Compensation Law — hazardous employment — employment by farmer of neighbor to make repairs to barn—“ farm laborers” defined.</p> <p>Where a farmer employed a neighbor who occupied an adjoining farm and often took odd jobs for repair work to make some repairs to his dairy barn, and said employee was injured by the collapse of staging used while placing slate on the roof, the employer was not at the time of the injury engaged in a hazardous employment within the meaning of the Workmen’s Compensation Law, because, first, the employer was not engaged in structural carpentry, roofing or the construction and repair of buildings for pecuniary gain, and, second, the employee was a “ farm laborer.”</p> <p>The fact that the employment was only temporary, for the particular job, is immaterial.</p> <p>“Farm laborers,” within the meaning of the Workmen’s Compensation Law, defined.</p>

<p>Appeal by the defendant, Horace W. Fish, 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 for $950, and also from an order entered in said clerk’s office on the 20th day of April, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

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 New York on the 13th day of May, 1916, upon the decision of an official referee.

<p>Bankruptcy—conversion of stock by stockbrokers — debt not discharged in bankruptcy — evidence—value of stocks — appeal from direction of verdict for plaintiff—effect of failure of defendant to take exception.</p> <p>Where stockbrokers, having possession of stocks purchased and paid for in full by a customer who had instructed them to have the stocks transferred to his name on the books of the corporation, failed to obey the direction and converted the same to their own use by hypothecating them within a few hours before their bankruptcy so that the stocks were never delivered to the customer, they were guilty of a willful and malicious injury to the property of another within the meaning of the Bankruptcy Act and their liability therefor is not discharged in bankruptcy.</p> <p>It seems, that the value paid for such stock in the open market a day or two before the conversion is some evidence of value.</p> <p>Where the court by directing a verdict for the plaintiff determined as a matter of law that the defenses of the defendant were insufficient and the defendant took no exception, the defenses will not be considered on appeal.</p> <p>Where defendant does not ask to go to the jury upon any question and takes no exception to the direction for a verdict for the plaintiff, there is an acquiescence in the court’s decision that there was no question of fact for the jury and on appeal the correctness of the direction of the verdict is not before the court.</p> <p>Although the Appellate Division, since the amendment of section 1346 of the Code of Civil Procedure, may consider questions of fact as well as of law on an appeal from a judgment entered upon a directed verdict, it will not review the evidence to see if the court was right in directing the verdict in the absence of an exception in the court below.</p>

Appeal by the defendant, Board of Education, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 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 trial made upon the minutes.

Appeal by the plaintiff, Hoggson Brothers, 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 March, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, Arthur B. Leach 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 28th day of February, 1916, upon the report of a referee appointed to hear and determine the issues.

Appeal by the plaintiff, Commonwealth Water Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 3d day of November, 1915, dismissing the complaint upon the merits after a trial at Special Term.

Appeal by the plaintiff, Jacob W. Reed, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Kings on the 27th day of January, 1916, dismissing the complaint upon the merits upon the decision of the court after a trial at the Kings County Special Term. This is an action to determine the ownership of an account standing in the name of the respondent in the Kings County Savings Institution.

<p>Contract — indemnity agreement between bridge contractor and railroad company construed — liability of bridge company for accidents caused solely by negligence of railroad company.</p> <p>Action by a railroad company against a contractor and its surety upon an indemnity agreement to recover the amount of a judgment paid by the plaintiff in an action brought against it by an employee of a subcontractor for injuries alleged to have been caused by the plaintiff’s negligence. Provisions of the contract examined, and held, that the bridge company by its agreement with the railroad company assumed absolute responsibility for all accidents, even those caused solely by the negligence of the railroad company itself;</p> <p>That under the terms of the contract it was optional with the plaintiff to pay the contractor the amount due on. the contract before the liability in this action was determined.</p>

Appeal by the defendant, Star Company, from part of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of June, 1916, as resettled by an order entered in said clerk’s office on the 12th day of August, 1916. Defendant appeals from so much of said order as imposes the terms and conditions upon which it is permitted to serve a second amended answer.

<p>Contract—building contract construed — extra work — new trial.</p> <p>In an action to foreclose a mechanic’s lien questions were raised between the plaintiff contractor and the owner as to an allowance for extra work in changing the roofs of the buildings to be constructed from the original specifications to conform to a plan indicated by special working sketches • subsequently furnished by the architect, and also for placing additional stucco on the foundation walls. The contract provided in part as follows: “No alterations shall be made in the work except upon written order of the architect; the amount to be paid by the owner or allowed by the contractor by virtue of such alterations to be stated in said order.”</p> <p>Held, that working plans or sketches for changes in the roofs did not constitute an “order ” within the meaning of the contract so as to bind the owner;</p> <p>That the placing of medicine closets in the houses, not called for by the plans, constituted extra work;</p> <p>That since the plaintiff’s contract did not include the grading and the owner had a third party do it so as to leave at least two feet of wall exposed around the houses, not covered by the contract, the placing of stucco thereon constituted extra work;</p> <p>That as the sum allowed for the changes in the roofs is unknown and is included with other items, it cannot be deducted from the amount found due the plaintiff, and hence the judgment should be reversed and a new trial granted.</p>

Appeal by the defendant, Anna M. Weiss, from, so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of June, 1916, as denies her motion to resettle an order entered in said clerk’s office on the 13th day of June, 1916, by striking therefrom the words “ all the pleadings and proceedings had herein.”

Appeal by the plaintiff, Brooklyn Ash Removal Company, Inc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of June, 1916, granting defendant’s motion for judgment on the pleadings under sections 547 and 976 of the Code of Civil Procedure. The pleadings consist of a complaint and answer.

<p>Appeal by Lester C. Gilman, as executor, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 24th day of January, 1916, judicially settling his account.</p>

Appeal by the defendant, Pearl Hendrickson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 21st day of June, 1915, upon the report of an official referee.

Appeal by the defendant, John Filler, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 7th day of March, 1916, upon the verdict of a jury for $450, 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>Reargument of submission of a controversy pursuant to section 1279 of the Code of Civil Procedure. (See 171 App. Div. 921.)</p>

Appeal by the attorney, W. H. K. Davey, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of July, 1916, requiring him in a summary proceeding to turn over to his client certain moneys which he had collected in his official relation, but which were afterwards invested by him improvidently for said client.

Appeal by Serb Federation “Sloga” and others from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of July, 1916, granting the application of the petitioner.

Appeal by the petitioner, James Carney, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 29th day of February, 1916, denying his motion for an accounting, and also from a second order entered in said clerk’s office on the same day denying his motion for a new trial.

Application by the relators, Walter D. Jennings and others, for a writ of certiorari directed to John H. Finley, as Commissioner of Education of the State of New York, for the purpose of reviewing his action in removing Burch, Kellogg, Lamos and Hanmer from the office of trustees of union free school district No. 1 of the town of Long Lake, Hamilton county.

<p>Appeal by the plaintiff, Cecelia B. O’Reilly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 24th day of November, 1915, dismissing the complaint upon the decision of the court after a trial before the court, a jury having been waived.</p>

<p>Intoxicating liquors — complaint for seizure of liquors possessed and sold unlawfully — practice — special appearance on behalf of one not shown to be owner to dismiss complaint unauthorized — general appearance — fermented liquors —hard cider.</p> <p>Where a special agent of the State Excise Department makes a complaint under the provisions of section 33 of the Liquor Tax Law, alleging that a certain person has in his possession and is selling hard cider in violar tion of the statute, which complaint although stating jurisdictional facts on information and belief, in some respects gives the sources of the information and the grounds for the belief and states the more material facts positively and complies with the forms of law, and the county judge issues a search warrant, one who is not shown to be the owner of the cider is not entitled to appear specially by counsel and make a motion to dismiss the complaint upon the ground that such cider was not a fermented liquor within the meaning of the statute, and that the complaint was insufficient, because this would constitute a questioning of the jurisdiction of the court, over the subject-matter of the proceeding, and a special appearance is proper only when a party seeks to deny the jurisdiction of the court over his person.</p> <p>Since a county judge had no authority to entertain such a motion under the circumstances, the petitioner has no standing to question his action.</p> <p>The county judge should have refused to entertain the motion, and, in the absence of an answer, proceeded in the manner provided by law.</p> <p>An appearance to deny the jurisdiction of the court over the subject-matter is a general appearance.</p> <p>Queere, as to whether hard eider constitutes a fermented liquor within the meaning of the Liquor Tax Law.</p>

Appeal by the plaintiff, The People of the State of New York, 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 Albany on the 3d day of March, 1916, as disallows to the plaintiff the sum of $17,831. The judgment was entered upon the decision of the court after a trial before the court without a jury. The opinion of the Trial Term is reported in People v. City of Buffalo (93 Misc. Rep. 275).

Appeal by Risedorph Bottling Company and another from an award of the State Industrial Commission, entered in the office of said Commission on the 12th day of November, 1915, which said award was reaffirmed on the 14th day of March, 1916.

Appeal by the defendant, Margaret McCarthy, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 8th day of June, 1916, amending the summons and complaint herein.

<p>Contract — Statute of Frauds — evidence as to confirmation by letter of oral contract of sale.</p> <p>The mere fact that a letter confirming an oral agreement for the purchase of goods of over fifty dollars in value is written, and an envelope prepared, with 50 or 100 other letters and envelopes of a similar nature, the letters given to a manager and the envelopes to an office boy, and the letter signed and handed to the office boy, accompanied with the fact that it was the office boy’s duty to put each letter in its proper envelope, seal, stamp and mail it, is not sufficient evidence, where the receipt is denied, of the mailing of the letter, so as to establish a memorandum of the contract within the meaning of the Statute of Frauds, especially where the office boy is not produced, and neither the manager nor the stenographer have any personal knowledge that the letter of confirmation was mailed.</p>

<p>Appeal by the defendants, Pliny Fisk and others, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the cpunty of Schenectady on the 31st day of May, 1916, denying their motion to change the place of trial herein.</p>

<p>Common carriers — negligence—liability for loss of freight caused by unusual freshet or flood —■ evidence — burden of proof.</p> <p>The liability of a railroad company for the loss or damage to freight in a car standing in the defendant’s yard, caused by an unusual freshet in an adjoining river, is for negligence as a warehouseman, and in order to establish the liability of the railroad company it must appear that it did not exercise the care which an ordinarily prudent person would exercise with reference to the property at the time and under the circumstances.</p> <p>The plaintiff in an action to establish such liability assumes the burden of proving that the defendant was negligent in storing the freight at a place where it was liable to be destroyed by the water.</p> <p>Evidence in such an action examined, and held, insufficient to establish the defendant’s liability.</p>

<p>Appeal by Eva S. Clark, as executrix, etc., from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Franklin on the 12th day of June, 1916, denying her motion to be made a party defendant herein.</p>

Appeal by the claimant, The City of New York, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 14th day of February, 1916, disallowing its claim for $7,602.61 against the State of New York and awarding it judgment in the sum of $302.90 only.

<p>Liens — mechanics’ liens on public improvements — sufficiency of notices — Lien Law, section 12, construed.</p> <p>Notices of liens on public improvements which state that the prices of the materials were payable on delivery and give the dates between which materials were furnished, stating explicitly the date when the last item thereof was furnished, are a sufficient compliance with section 12 of the Lien Law requiring a statement as to “the date when due.”</p> <p>Where notices state that the real property under improvement “is situated on the east side of North Jay Street, and known and distinguished as No. — on said street in the City of Schenectady, County of Schenectady and State of New York, and described as follows: The property upon which is located the new hose house known as station 3, situated on North Jay street in the city of Schenectady, N. Y.,” and it further appears from the notices that the contract for the improvement was made with N., “who is the general contractor for the construction of fire station No. 3,” such notices give a sufficient “ description of the public improvement ” within the meaning of the statute.</p> <p>Such notices also contain a sufficient “ general description of the contract pursuant to which such public improvement was constructed ” within the meaning of the statute.</p> <p>Notices of hens may be held sufficient where, from the facts stated therein, proper inferences may be drawn of the facts required by the statute.</p> <p>Section 33 of the Lien Law, requiring a liberal construction thereof and providing that substantial compliance with its provisions shall be sufficient, does not justify the court in dispensing with any of the statutory provisions.</p>

<p>Towns — control over and obligation to keep highways in repair — liability for negligent acts of officers — liability of town officers for negligence—liability of town superintendent of highways for fire caused by steam tractor — evidence.</p> <p>Towns in their corporate capacity have no control over and are not under obligation to keep highways in repair.</p> <p>Towns are not liable for the negligent acts of their officers in the absence of statutory provisions.</p> <p>The rule of respondeat superior does not exist between a town and its officers.</p> <p>A town is not liable for damages caused by a fire started by a steam tractor which had been purchased for and was being used by the town superintendent of highways.</p> <p>The officers of a town are liable for their negligence in the performance of their official duties.</p> <p>In an action against a town and its superintendent of highways for alleged negligence resulting in the bnrning of plaintiff’s barn which caught fire from a spark from a tractor being used by the superintendent, it appeared that, although the superintendent had procured a spark arrester and placed it on the smokestack, there were holes in it at the time of the fire, through which sparks were emitted.</p> <p>Held, that the complaint was properly dismissed as against the town, but that there was a question for the jury as to whether or not the superintendent had been negligent in allowing the use of the tractor in its defective condition.</p>

Appeal by the defendant, The State of New York, from a judgment and determination of the Board of Claims, entered in the office of the clerk of said Board on the 1st day of March, 1915.

Certification by the State Industrial Commission to the Appellate Division under section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41)* of the following question: “ Did the award to Michael Wozneak constitute a vested interest in him and upon his death the right of collection of the portion of said award remaining unpaid pass to his personal representatives, or did the said award terminate upon the death of the said Michael Wozneak ?”

<p>Statute of Frauds — sale of goods over fifty dollars in value — oral contract to enter ' into agreement to sell in the future — statute construed.</p> <p>A contract by which the plaintiff agreed not to retake possession of certain trucks, but to allow the defendant to use them for a specified time, and then to enter into an agreement with a corporation to be formed by the defendant to take possession of the trucks and sell them at public auction, and if purchased by the plaintiff to sell its title to the corporation, the defendant, in consideration of said promise to pay the plaintiff a large sum of money in a manner specified, is a contract for the sale of goods over fifty dollars in value, and if not in writing is void under the Statute of Frauds.</p> <p>If part of such entire contract is void under the statute the whole of the contract is unenforcible.</p> <p>An agreement to agree to sell is a contract to sell, and the statute applies although the sale is to depend upon the plaintiff’s subsequently acquiring title to the goods.</p>

<p>Attorney at law disbarred — fraudulent representations made to client — conversion of funds belonging to estate — compulsory restitution no defense.</p> <p>An attorney at law disbarred for inducing a client, as administratrix, to indorse to him a check representing funds of the estate upon the false represent!bn that the sum had to be deposited in the Surrogate’s Court and for converting the proceeds of the check to his own use.</p> <p>It seems, that if the client had actually permitted the attorney to keep the money until the time came for her accounting, it was a violation of sound professional ethics for the attorney to borrow the money without giving collateral security or any written evidence of the debt.</p> <p>The fact that the attorney being threatened with disbarment proceedings repaid a portion of the moneys converted, does not protect him from disbarment.</p>

<p>Workmen’s Compensation Law — when relation of employer and employee exists within meaning of statute — hiring of team and driver from another.</p> <p>Where a construction company hires a team and driver from another and places them under the control and direction of its foreman, and said company, although having no authority to discharge the driver, has power to refuse to continue him and the team in' its service, said driver will be held to be in the employ of the company within the meaning of the Workmen’s Compensation Law.</p>

<p>Appeal by Carfagno & Dragonette, Inc., and another from an award of the State Industrial Commission, made on the 29th day of October, 1915.</p>

<p>Insurance—action on adjustment of loss under fire insurance policy — evidence justifying finding that adjustment was made — failure of insured to submit to examination as required by policy — election between recovery upon policy and adjustment of loss — cross-examination of insurance adjuster by defendant—refusal to charge upon matters of evidence.</p> <p>Where a plaintiff, suing upon a policy of fire insurance and an adjustment of loss, has testified on his direct examination that an adjuster of the defendant having authority agreed that the company should pay a certain sum as an adjustment of the plaintiff’s loss, there is evidence which justifies the jury in rendering a verdict based upon the new agreement, rather than upon the terms of the policy itself, although the plaintiff on cross-examination when asked to repeat his conversation with the adjuster did not repeat the statement given on direct examination. The court cannot say, as a matter of law, that the jury could not base its finding on the direct examination.</p> <p>Where the verdict was based upon the new agreement made by the insurance adjuster, rather than upon the original policy, the refusal of the insured to be examined before a notary, as required by the terms of the policy, because the defendant refused to stipulate that the plaintiff should not by such examination waive any rights finder the adjustment of the loss which had already been made, did not bar a recovery on the adjustment.</p> <p>It was proper for the court to permit the jury to find for the plaintiff, either upon the adjustment agreement or upon the policy, and the defendant had no absolute right to require the plaintiff to elect between said grounds of recovery.</p> <p>Where the defendant’s insurance adjuster was called by the plaintiff for the sole purpose of showing that he wrote and received certain letters which the plaintiff had put in evidence upon a former trial, and no question was asked him on direct examination as to his authority to bind the defendant by an adjustment of loss, it was not error for the court to refuse to allow the defendant to cross-examine its adjuster on the subject of his authority.</p> <p>It is proper for the court to decline to make further charges upon matters of evidence as requested by the defendant.</p>

Appeal by the plaintiff, Josephine Gr. McCarthy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 8th day of December, 1915, upon a dismissal of the complaint by direction of the court at the opening, and also from two orders, one dismissing the complaint and the other denying plaintiff’s motion to set aside the dismissal of the complaint.

Appeal by Thomas Kelly and another from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 24th day of June, 1915, as dismisses the complaint as to the respondents, dismisses the cross demand of the appellants against them and denies exoneration to the appellants from the relief granted against them in favor of the plaintiff.

<p>Attorney at law disbarred ■—participating in scheme to procure divorce for client—making false claim to moneys of client — doctrine of reasonable doubt not applicable.</p> <p>Attorney at law disbarred for participating in a scheme in pursuance of which his client was induced to go to a room in a hotel in an adjoining State with a woman other than his wife, where he was found by detectives, and as a result of which his wife procured a divorce, and also for delaying the repayment of money to his client by setting up a false claim thereto.</p> <p>The doctrine of reasonable doubt has no place in a proceeding to discipline an attorney at law. The questions involved are to be determined upon the fair preponderance of the evidence and the reasonable inferences to be drawn therefrom, and not beyond a reasonable doubt.</p>

Appeal by the defendants, Irving Kesner 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 Bronx on the 13th day of April, 1916, upon the special verdict of a jury. The action was brought to recover on a jail limit undertaking.

<p>Attorney at law disbarred—receipt of money from estate of which his wife was executrix — fraud in inducing clients to loan money.</p> <p>An attorney at law should be disbarred, where it appears that he was very closely connected in business with his wife; that she in an accounting of an estate in which she had been made executrix, claimed credit for excessive payments to her husband as attorney and for alleged loans, which were disallowed by the court; that on appeal from said decree she obtained a surety bond by inserting in her application material words in a rather obscure interlineation, which words were overlooked by the surety company which was compelled to pay, and that said attorney loaned money belonging to his clients on mortgages represented to them to be first liens, but which were, in fact, worthless and subject to taxes, and on which he personally paid the interest, the mortgagors being mere dummies.</p>

<p>Attorney at law suspended from practice — false statements to client — unauthorized suit.</p> <p>Attorney at law suspended from practice for one year for falsely representing to a client that he had already begun an action when in fact he had merely delivered a summons to a process server, for beginning an action without authority and for falsely representing to a prospective client that he had entered judgment in favor of another client in a suit involving similar matters.</p>

<p>Attorney at law censured — advertising legal business.</p> <p>An attorney at law severely censured for unprofessional conduct in extravagantly advertising his business of making commercial collections contrary to the spirit of canon 27 of the Code of Ethics. The court determines to take no further action if the defendant refrains from further use of such unprofessional methods.</p> <p>Scott, J., dissented and voted for disbarment. .</p>

Appeal by Rebecca A. D. Wendel Swope and another, individually and as administratrices, from an order of the Surrogate’s Court of the county of Westchester, entered in the office of the clerk of said Surrogate’s Court on the 16th day of June, 1916, granting the petition of the respondent.

<p>Decedent’s estate—jurisdiction of surrogate to determine ownership of savings bank account — application of Banking Law to savings bank deposit made prior to its enactment and not in form prescribed by statute.</p> <p>Where the daughter of a decedent presented a claim for services against the estate, and appeared generally upon the accounting of the administrator, the surrogate had jurisdiction to determine her claim to a savings bank account standing in her name and in the name of the decedent, according to equitable principles under the provisions of section 2510 of the Code of Civil Procedure.</p> <p>Where the form of a savings bank account opened before the creation by the Banking Law of the statutory rule of evidence, is not in “ such form” as the statute specifies, the rule of evidence declared as to the specified form does not necessarily apply.</p> <p>Where a controversy arises over the ownership of a savings bank account opened prior to the enactment of the statute, in the form of “ Charlotte A. Ramsey and James M. Ramsey,” without statement of its being payable “to either or the survivor of them” as provided by the Banking Law, ownership must be determined according to the common-law rules of evidence without reference to the statute.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1916, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 27th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Security Mortgage 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 13th day of July, 1916, granting defendants’ motion to require plaintiff to separately state and number the causes of action set forth in the amended complaint.

<p>Tax — transfer tax — when executors also entitled to commissions as trustees—will construed—commissions for paying over future estates as trustees.</p> <p>A bequest of personal property to executors in trust, to apply the income thereof to the use of a specified beneficiary for life and upon her death the property to revert to the testator’s residuary estate, merely adds to the duties of the executors a trust duty during the life of the cestui que trust, and does not change the character in which they hold the funds. Hence, the executors are not entitled to receive trustees’ commissions in addition to their commissions as executors, and, therefore, in assessing a transfer tax trustees’ commissions on the fund should not be deducted.</p> <p>But where another clause of the same will bequeaths a sum of money to the executors in trust to apply the net income to the use of the son of the testator during his natural Ufe, and upon his death to transfer the same to such persons as the son may, by his last will and testament appoint, or in the case of no appointment, then to certain contingent remaindermen, a trust is established which involves no executorial duties, for the executors may pay the fund over to themselves as trustees and be discharged from liability as executors, and thereby they will become entitled to commissions both for receiving and paying out the sum as executors and for receiving the same as trustees, although they will not be entitled to their commission for paying out the money until the termination of the life estate. Hence, where it has been determined that the taxation of the remainders is suspended by reason of the life beneficiary’s power of appointment (as to the propriety of which decision the court makes no determination) it will be proper to deduct trustees’ commissions for paying over the funds in assessing a tax upon the future estates, but such commissions are not a proper charge in diminution of the life estate.</p>

<p>Appeal by the petitioner, Thomas McDonough, from a decree of the Surrogate’s Court in the county of New York denying his application herein.</p>

Appeal by the defendant, Title Guarantee and Trust 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 10th day of June, 1916, overruling a demurrer to the complaint.

Appeal by the defendant, Jacob Oram, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of April, 1916, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the petitioner, Cornelius Driscoll, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1916, as denies his motion to compel respondent to turn over and pay to the petitioner the sum of $7,636.29.

Appeal by the plaintiff, Catherine Thompson, 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 January, 1916, upon a dismissal of the complaint on the pleadings at the opening, and also from the order dismissing the complaint.

<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, Degnon Contracting Company, from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of May, 1916, affirming a judgment of the City Court of the City of New York in plaintiff’s favor.

<p>Master and servant — broker’s action for commission — evidence justifying verdict for defendant.</p> <p>Action to recover compensation for services alleged to have been rendered as a broker in negotiating the sale of patent rights, and resubmitted by the Court of Appeals to the Appellate Division under a ruling that the plaintiff’s contract must be 'regarded as an ordinary broker’s contract. Evidence examined, and held, that the jury were justified in finding for the defendant on certain specific questions of fact submitted by the trial court.</p>

Appeal by the defendant, Samuel W. Peck & 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 18th day of October, 1916, requiring defendant to serve a bill of particulars of a separate defense.

Appeal by Morris Jasper from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of October, 1916, directing him as the person beneficially interested in the recovery in this action, to pay the costs awarded to the defendant pursuant to section 3247 of the Code of Civil Procedure.

Appeals by the plaintiff in each case, Leonello Valenti and Antonio Valenti, from judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of February, 1915, upon the verdicts of a jury, and also from orders entered in said clerk’s office on the 8th day of February, 1915, denying the plaintiffs’ motions for new trials made upon the minutes.

Appeal by the defendant, Ellen V. Dollard, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of July, 1916, granting plaintiff’s motion for a retaxation of costs and striking from the bill of costs an item of thirty dollars allowed to the defendant as a trial fee for the trial of an issue of fact.

Appeal by the defendant, Lincoln Mortgage Company, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 13th day of September, 1916, confirming the account of William Moores, as receiver of rents and profits in a foreclosure action.

Appeal by the plaintiff, Nicholas Policastro, 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 29 th day of March, 1916, upon the verdict of a jury rendered by direction of the court after certain questions submitted had been answered by the jury, and also from the order entered in said clerk’s office on the 28th day of March, 1916, directing the verdict.

Separate appeals by the defendants, Greeley Square Hotel Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of ¡New York on the 14th day of March, 1916, upon the yerdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of March, 1916,- denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, James A. Boberts, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of New York on the 16th day of March, 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 29th day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Nathaniel 0. Goodwin, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1916, vacating an order for the examination of the defendant by its president before trial.

Appeal by the plaintiff, Ernst Bystrom, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 20th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of October, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John W. Rothenberg, from a judgment of the County Court of Bronx county in favor of the defendant, entered in the office of the clerk of said county on the 27th day of April, 1914, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and upon a direction for judgment in favor of the defendant upon a counterclaim to which plaintiff had made no reply.

<p>Will — decree refusing probate upon ground that testator was non-resident reversed—proof establishing that decedent was resident of this State — mentally incompetent cannot have intention to change domicile-evidence— presumption that original domicile continues — appeal —power of Appellate Division on. appeal from decree of Surrogate’s Court.</p> <p>Appeal from a decree of the Surrogate’s Court denying probate to a will upon the ground that the testator had changed his residence to a foreign State, in which State a later will had been admitted to probate. The decedent, when over eighty years of age and apparently impaired both physically and mentally, had married a woman, resident of the foreign State, but after a short period had returned ho this State to live with his daughter, the proponent of the prior will. Evidence examined, and held, that a finding that the decedent had changed his residence to the .foreign State was clearly against the weight of the evidence, and that a contrary finding should have been made.</p> <p>As the decedent had been continuously a resident of this State for nearly eighty years, his original domicile is presumed to continue, and the burden to establish affirmatively that he intended to change his domicile was upon the contestant.</p> <p>If from the time the decedent went to the foreign State until the date of his death he was mentally incompetent to form or have an intention to change his domicile, he was powerless to change the same.</p> <p>While the Appellate Division has power, under section 2763 of the Code of Civil Procedure, to decide the questions of fact involved upon the evidence, and to determine that the decedent was still domiciled in this State at the time of his death, the case will be remitted to the Surrogate’s Court for a new trial, as the contestant may elect not to stand upon the record of the foreign probate of the later will, and may attempt to prove the same in the Surrogate’s Court.</p>

<p>Municipal corporations — charter, city of Yonkers — street paving — right of abutting owners to petition for particular kind of pavement — failure to follow statutory requirements — service of petition upon common council — taxpayer’s action.</p> <p>While the charter of the city of Yonkers empowers not less than one-third of a majority of owners of property abutting upon a street which is to be repaved to petition the municipal board of contract and supply to construct a pavement of a certain character, the provisions of the statute must be complied with and the petition be made to the board of contract and supply.</p> <p>Hence, a petition which was never served upon said board or its clerk, but was merely handed to the city clerk who had no relation to the board of contract and supply, and served only the common council, to which body he communicated the petition, is insufficient to require the municipal authorities to let a contract for the particular kind of pavement petitioned for, and a taxpayer has no standing to maintain an action to restrain the municipal authorities from carrying out a contract which has been duly let for a different kind of pavement.</p>

<p>Appeal by the plaintiff, City of Borne, from a judgment of the Oneida County Court in favor of the defendant, entered in the office of the clerk of said county on the 17th day of November, 1915, reversing an alleged judgment of the City Court of the city of Borne, in form imposing a penalty of six cents upon the defendant for violating the seventy-third ordinance of said city.</p>

Appeal by the plaintiff, George Hein, from a judgment of the Supreme Court in favor of the defendant Eoy D. White, entered in the office of the clerk of the county of Erie on the 16th day of November, 1916, upon the verdict of a jury for no cause of action.

<p>Motor vehicles—negligence—collision between automobile and railroad train at crossing—negligence of chauffeur of hired car — contributory negligence of decedent — burden of proof—new trial — newly-discovered evidence — testimony of witnesses in other action — cumulative evidence.</p> <p>Qucere, as to whether the negligence of a chauffeur driving a ear for hire is imputable to the person who hired the car and who was killed by a train at a railroad crossing, if the route to be taken and the operation of the ear were left entirely to the chauffeur.</p> <p>In an action to recover for death so caused the burden of showing con- • tributory negligence on the part of the decedent is on the railroad company, and it is error for the court to charge otherwise.</p> <p>A defendant railroad company against which judgment has been rendered for the death of a person riding in a hired automobile based on the negligence of the defendant in failing to give notice that its train was approaching the crossing where the accident occurred by gong or any other signal, is entitled to a new trial upon the ground of newly-discovered evidence where it appears that since the trial of the plaintiff’s action the testimony of witnesses in another action, brought in a Federal court to recover for the death of another person who was killed in the same accident, showed that proper signals were given of the approach of the train, both by an automatic bell and by signals from the train itself, and that the chauffeur and the persons whom he was driving had been drinking heavily and that the automobile was driven in the night time without lights and that the approaching train could have been plainly seen from a point 100 feet from the crossing, and this is true although such new evidence is partly cumulative.</p> <p>The strict rule as to newly-discovered cumulative evidence no longer obtains and a new trial may be granted if the evidence, though partly cumulative, is of such a character that it is likely to produce a different result on a new trial.</p> <p>Dowusra, J., dissented.</p>

<p>Appeal by the defendant, Long Island Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of June, 1914, upon the verdict of a jury for $11,500, and also from an order entered in said clerk’s office on the 2d day of June, 1914, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Acme Road Machinery Company, from part of an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 27th day of October, 1916, denying defendant’s motion for an order directing plaintiff to submit to having an X-ray picture taken.

Appeal by the defendant, Willis H. Britton, from a judgment of the Supreme Coiu’t in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 17th day of June, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Decedent’s estate — evidence — incompetency of witness under section 829 of Code of Civil Procedure to testify respecting personal transactions with decedent.</p> <p>In an action against executors to recover for goods alleged to have been sold and delivered to the decedent, a witness, interested in the question as to whether the sale was made to the decedent, as contended by the plaintiff, or to such witness, as contended by the defendant, is not incompetent to testify against the executors under section 829 of the Code of Civil Procedure respecting a personal transaction with the decedent, because it cannot be said that he will either gain or lose by the direct legal operation and effect of the judgment, or that.the record will be legal evidence for or against him in some other action.</p>

Appeal by the plaintiff, Charles F. Hofferberth, from a judgment of the Supreme Court in fayor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of February, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Three appeals by the defendant, Akron Building Company, on separate records: (1) From a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 15th day of January, 1916, upon •the verdict of a jury for $11,250; (2) from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 3d day of June, 1916, denying its motion for a new trial made…

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 31st day of January, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioner, Harry E. Lewis, as district attorney of Kings county, 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 2d day of June, 1916, denying his motion for a peremptory writ of mandamus.

Appeal by the defendant, Abraham Goldstein, from a judgment of conviction by the Court of Special Sessions of the City of New York, rendered December 17, 1915, upon a charge of misdemeanor for unlawfully and knowingly exposing for sale an article of merchandise which he falsely represented to be shirts made by an association called the Manhattan Shirt Company, in violation of the Penal Law, section 2354, subdivision 8, added by Laws of 1914, chapter 332.

Appeal by the defendant, Edward H. Titus, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of September, 1916, as resettled by an order entered in said clerk’s office on the 20th day of October, 1916, denying defendant’s motion to compel plaintiff to reply to a supplemental answer herein.

Appeal by the defendant, Edward H. Titus, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1916, denying defendant’s motion to compel plaintiff to reply to new matter set up in the amended answer by way of avoidance.

Appeal by the defendant, Edward H. Titus, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of September, 1916, vacating and setting aside an order directing plaintiff to give security for costs.

<p>Appeals by the defendant, Fifth Avenue Coach Company, in each case, from judgments of the Supreme Court in favor of the plaintiffs in each case, entered in the office of the clerk of the county of New York on the 4th day of March, 1916, upon the verdicts of a jury for $7,802.60 in the first case and $12,710.50 in the second case. Appeals are also taken from the orders, one in each case, entered in said clerk’s office on the 2d day of March, 1916, as resettled by subsequent orders entered on the 24th day of March, 1916, denying the appellant’s motions for new trials made upon the minutes.</p>

Appeal by the City of New York 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 Bronx on the 11th day of October, 1915, denying its motion to confirm the report of the commissioner of assessment herein and returning the said report as to assessments for benefit to a new commissioner.

Appeal by Robert Adamson, as fire commissioner, from an order of the Superme 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 August, 1916, directing the issuance of a peremptory writ of mandamus requiring him to rescind and to cancel a certain order.

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

Appeal by the plaintiff, Gene Herrman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 14th day of April, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 10th day of May, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Associated Press, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of July, 1916, sustaining plaintiff’s demurrer to four affirmative defenses set up in the answer. This action is to recover installments due upon eleven contracts made with the defendant. Seven of these contracts are set forth at length in exhibits annexed to the complaint.

Appeal by the defendant, The Associated Press, 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 June, 1216, sustaining plaintiff’s demurrer to affirmative defenses set up in the answer.

Appeals by the defendant, The Associated Press, from orders of the Supreme Court, one in each action, made at the New York Special Term and entered in the office of the clerk of the county of New York, the order in action No. 5 on the 20th day of June, 1916, and the order in action No. 6 on the 12th day of July, 1916. The orders appealed from, sustain plaintiff’s demurrers to affirmative defenses contained in the answers.

<p>Bills and notes — issuance of cashier’s checks at request of depositor — presumption of consideration—action by payee against drawer — liability of drawer — power of depositor or of drawer to stop payment.</p> <p>The issuance of cashier’s checks at the request of a depositor carries with it a presumption that there was a consideration moving from him to the drawer, and it is immaterial, in an action by the payee against the drawer, whether or not there was consideration as between the depositor and the payee.</p> <p>There is a presumption under section 50 of the Negotiable Instruments Law that cashier’s checks so executed were issued for value, and such presumption is not overcome by evidence that the drawer received no consideration from the payee.</p> <p>Where a bank at the request of a depositor and in reliance upon the sufficiency of his balance, issues cashier’s checks to a designated payee, it incurs a direct primary obligation to him that the drawee will pay the checks on presentment, and in default thereof that it will pay them.</p> <p>Such cheeks having been issued and delivered to the payee, the transaction was a completed one so far as the payee was concerned, and his rights cannot be affected by the failure of the bank to charge the checks to the account of the depositor, pursuant to the direction of the latter.</p> <p>If the depositor, for a sufficient consideration moving from the payee to him, purchased the checks of the bank for the payee, and caused them to be delivered to him, it was beyond the power of the depositor or of the bank to stop payment thereof.</p>

Appeal by the plaintiff, John J. Fitzgerald, 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 17th day of March, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintff’s case.

Appeal by the defendants, The Brooklyn Heights Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of May, 1916, upon the verdict of a jury for $3,000, and also an appeal by the defendant Brooklyn Citizen from an order entered in said clerk’s office on the 25th day of May, 1916, denying its motion for a new trial made upon the minutes.

Cross-appeals by the plaintiff, The First National Bank of Seattle, and by the defendant, Herman M. Hidden, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of May, 1916, upon a dismissal of the complaint and of the counterclaim by direction of the court at the close of the case.

<p>Waters and watercourses — action for damages to oyster bed by company dredging channel—negligence — damages — growing oysters constitute personal property—trespass.</p> <p>Action by a person who had planted seed oysters on land under water-held by the city of New York in trust for its inhabitants who had the right to use the same for the purpose of navigation and fishery against a contractor which had agreed to dredge a channel near the plaintiff’s oyster bed, for the destruction of the bed by the defendant’s negligence in allowing mud to escape from its suction pipes and from other sources into the water.</p> <p>Held, on all the evidence, that a finding of negligence on the part of the defendant contractor should be affirmed;</p> <p>That the plaintiff’s damages were properly limited to the destruction of the oysters actually planted by him;</p> <p>That such oysters were personal property;</p> <p>That the plaintiff, although he had no permission or lease from the city of New York, was not a trespasser.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of April, 1915, upon the report of a referee appointed to hear and determine the issues, and also from an order entered in said clerk’s office on the 24th day of April, 1915, granting plaintiff’s motion for an extra allowance.

Appeal by the defendants, The Eichelieu Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of June, 1915, upon the decision of the court after a trial at the New York Special Term, and also from an interlocutory judgment entered in said clerk’s office on the 24th day of May, 1915.

Appeal by the plaintiff, William J. Smith, as administrator, from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 13th day of March, 1916, as dismisses the third amended complaint on the merits as against respondents upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, The National Folding Box and Paper Company, from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of May, 1916, reversing a judgment of the City Court of the City of New York in favor of the defendant and setting aside the verdict of a jury in plaintiff’s favor.</p> <p>An appeal is also taken from the judgment of the City Court of the City of New York, entered in the office of the clerk of said court, pursuant to the determination of the Appellate Term.</p>

Appeal by the plaintiff, Joseph M. L. Striker, 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 May, 1916, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, M. H. Powers Company, 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 22d day of May, 1916, affirming a judgment of the City Court of the City of New York in favor of the plaintiff. An appeal is also taken as stated in the notice of appeal from the order of the Appellate Term denying defendant’s motion for a reargument.

Cross appeals by the plaintiff, Joshua Silverstein, and the defendant, The Standard Accident Insurance Company of Detroit, Michigan, 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, denying their cross motions for judgment on the pleadings consisting of a complaint and answer.

<p>Appeal by the defendant, Roy H. McMaught, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York oh the 21st day of February, 1916, upon the verdict of a jury for $5,505, and also from an order entered in said clerk’s office on the 29th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by W. MoMaster Mills and another, proponents, 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 28th day of June, 1915, denying their petition to admit to probate a paper dated the 21st day of March, 1914, and alleged to be the last will and testament of Amelia G-ertrude Cutter, deceased.

<p>Motion to confirm report of referee in a proceeding against an attorney for misconduct and for his removal from office.</p>

Appeal by the defendants, The Village of Watkins 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 Schuyler on the 28th day of December, 1915, upon the verdict of a jury for $2,000, and also an appeal by the defendant, The Village of .Watkins, from an order entered in said clerk’s office on the 20th day of January, 1916, denying its motion for a new trial made upon the minutes. .

<p>Appeal by the plaintiff, Arthur H. Crist, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Otsego on the 20th day of March, 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 plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Supplementary proceedings — third party order restraining payment of moneys owed to judgment debtor —willful disobedience of restraining order— contempt of court.</p> <p>Where an order in supplementary proceedings has been duly served on a third person restraining him from paying over or disposing of moneys owed to the judgment debtor until further order of the court, and in violation of the order the third person deliberately pays the money to • the judgment debtor’s wife, he is guilty of a contempt of court, and is properly fined the amount of the payment, with costs and disbursements.</p> <p>Such payment in violation of the restraining order is without force and validity as against the judgment creditor, and furnishes no answer to a subsequent application to the court for an order directing the third person to pay the moneys to the sheriff.</p> <p>Although the original order directing payment to the sheriff was made without notice to the third person, where the latter moved to vacate the order and his motion was denied, he has been afforded a hearing upon the merits.</p> <p>Lyon, J., dissented.</p>

<p>Injunction — sale of patent medicine business—plaintiff’s mail inadvertently opened by defendant — when injunction should not issue •— inadvertent misbranding of medical article.</p> <p>Where a contract by which the plaintiff sold to the defendant all his interest in a patent medicine business, together with the good will thereof, and which empowered the defendant to continue the use of the trade name which embodied the surname of the plaintiff, also specifically regulated with great definiteness the plaintiff’s right to receive mail intended for him personally and required the defendant to redeliver to the plaintiff any individual mail which the defendant might receive from the post office authorities, an injunction should not issue restraining the defendant from opening letters intended for the plaintiff, when as a matter of fact in the course of over seven years during which the defendant has received between 2,000,000 and 3,000,000 pieces of mail it has erroneously opened only 129 letters intended for the plaintiff, those being delivered by the postal authorities, and especially so where there is no evidence whatever of any bad faith on the part of the defendant, but, on the contrary, it has endeavored at all times to live up to its agreement.</p> <p>Reid further, that the defendant, which was entitled to manufacture and vend a certain medical appliance invented by the plaintiff, had not violated any of the plaintiff’s rights so as to call for an injunction merely because through inadvertence it had in some cases when advertising the article omitted the words “ and Company ” after the plaintiff’s surname, which it was authorized to use, if in the majority of instances the article was properly labeled.</p> <p>Under the circumstances no intentional wrongdoing or intent to violate the plaintiff’s rights being shown, an injunction would only be mischievous and serve no proper purpose.</p>

Appeal by the claimant, Mary J. Buckles, as administratrix, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 7th day of June, 1916, dismissing her claim.

Appeal by the intervenor, Evan E. Evans, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Washington on the 27th day of March, 1916, denying his motion to vacate an ex parte order directing him to produce certain ballot boxes and to permit the respondent to inspect the ballots therein.

<p>Appeal by the defendant, Harry E. Lewis, as district attorney, 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 September, 1916, denying his motion to change the venue of this action from the county of New York to the county of Kings.</p>

Appeal by the appellants from two orders of the Surrogate’s Court of the county of Richmond, entered in the office of said Surrogate’s Court on the 21 th day of May, 1916, and the 14th day of September, 1916, respectively. Before the surrogate of Richmond county had admitted this will to probate, he appointed, as temporary administrator, Mr. Apel, the executor named in the will. On probate of the will Mr. Apel received the usual letters testamentary.

Appeal by the plaintiff, Martin Zbieski, 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 14th day of February, 1916, upon a dismissal of the complaint by direction of the court, and also from an order entered in said clerk’s office on the 15th day of February, 1916, setting aside the verdict of a jury, finding that plaintiff had not released defendants from responsibility herein and dismissing…

<p>Contracts — suit in equity to enjoin violation of covenants by vendee in partial restraint of trade — liability of stockholders of corporation under agreement by its predecessor.</p> <p>In a suit to enjoin the defendants from violating two agreements, in writing, one made between the plaintiff and a Massachusetts corporation and the other made on the same day between the plaintiff and the president, a majority stockholder of said corporation, it appeared that said corporation was engaged in the business of making and selling cake, principally in the State of New York, but not in the New England States; that plaintiff, who was a large stockholder, was engaged in like business in New England; that the president of said corporation decided to organize a New York corporation for the purpose of taking over all the assets, etc., of his corporation and requested plaintiff to consent, which he refused to do; that by the agreement between the plaintiff and the Massachusetts corporation it was agreed that the plaintiff would sell his stock to the president of said corporation, and that it would change its name and would not, after a certain period, use certain trade names, and would release and restore them to the plaintiff, and would not “ manufacture or sell in or ship into any of the New England States any cake of any kind.” The agreement with the president of the Massachusetts corporation contained no reference to the agreement with said corporation, but recited the purchase by the president of plaintiff’s stock, and contained agreements by the president to form a New York corporation to carry on the cake business in New York and to take over the property and assets of the Massachusetts corporation, and also contained similar restrictive covenants. The alleged violations and threatened violations of the agreement are shipping into the New England States for sale, and selling therein cake and cake products, and an accounting is demanded of the profits realized on such sales.</p> <p>Held, that the allegations that the defendant New York corporation assumed the obligations of the Massachusetts corporation contained in its agreement with the plaintiff, standing alone, would not constitute a sufficient allegation of the facts showing such assumption, but taken with other-allegations showing that the defendant corporation was organized to succeed the Massachusetts corporation, and that it did in fact become its successor in business by taking over all of its assets, and by issuing therefor to the stockholders of the Massachusetts corporation and to them, only its entire capital stock, it is sufficiently shown that it acquired such assets burdened with the obligations of. the Massachusetts corporation.</p> <p>The stockholders of the New York corporation having all been stockholders of the Massachusetts corporation are chargeable with knowledge of the agreements, and the New York corporation having purchased the assets and succeeded to the business of the Massachusetts corporation should be bound thereby.</p> <p>The agreements in question are not void as being in restraint of trade.</p> <p>Covenants which are ancillary or incident to a lawful contract, although they may be in partial restraint of trade, are valid if founded on a good consideration and limited to reasonable protection of the covenantee. This is so, even though the vendor is not parting with the good will of the business and they are made by the vendee.</p> <p>McLaughlin and Dowling, JJ., dissented.</p>

<p>Principal and agent — action to recover balance due under contract of employment and for wrongful discharge — “ memorandum ” within Statute of Frauds — erroneous charge—admissibility of evidence of acts of parties to explain contract.</p> <p>Action for a balance claimed to be owing to the plaintiff for salary under a contract of employment for a term of years and for damages for an alleged wrongful discharge.</p> <p>Held, on all the evidence, that a writing signed by the defendants and delivered to the plaintiff, together with his written acceptance thereof, constituted a sufficient “ memorandum ” within the Statute of Frauds.</p> <p>That the court, after submitting to the jury, as a question of fact, to determine the nature of the services which the plaintiff was employed to render, committed reversible error in instructing them, as a matter of law, that the plaintiff was not obliged to perform any duties involving his taking orders from another employee who had been his subordinate;</p> <p>That the defendants were within their rights under the contract in requiring the plaintiff to take orders from another employee who had been his subordinate, and that the complaint should have been dismissed.</p> <p>The contract being silent with respect to the nature of the services which plaintiff was to perform, evidence of the acts of the parties thereunder was admissible to show the nature of the services for which he was employed.</p>

Appeal by the defendants, Henry Moskowitz and others, from an orderof 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 19th day of April, 1916, granting the relators’ motion for a peremptory writ of mandamus directing the municipal civil service commission to admit the relators and others similarly situated to a competitive examination for the position of chief examiner, civil service commission.

<p>Appeal by the defendant, New York, Ontario and Western Eailway Company, from an award of the State Industrial Commission, entered in the office of said Commission on the 26th day of June, 1916, directing the employer to pay into the State insurance fund, under section 27 of the Workmen’s Compensation Law, the present value of future installments of compensation theretofore awarded.</p> <p>On July 27, 1914, an award was made under the Workmen’s Compensation Law in favor of the widow and two infant children of a deceased employee of the appellant. Such award directed payment in installments by the appellant to said widow and children of certain death benefits under section 16 of the act, payable semi-monthly to the widow during her widowhood, with two years’ compensation in one sum upon remarriage, and to the children semi-monthly until they shall arrive at the age of eighteen years.</p> <p>On May 31, 1916, the Commission adopted an elaborate set of rules for the payment into the State fund of the present value of future installments of death benefits. Such rules applied to every mutual compensation insurance company and every self-insurer and directed them to pay into the State fund the present value of future installments under every award in death cases. Such rules also provided among other things that “ all present values shall be computed upon the basis of the Survivorship Annuitants’ Table of Mortality, the remarriage rate of the Dutch Eoyal Insurance Institution, interest at 3%%, with an expense loading so calculated as to provide that 2>% of the sums paid in shall be available for defraying the administration charges of the aggregate trust fund thus created. In every case paid in, all future liability under the award and the hazards of death or remarriage are to be assumed, by the trust fund commencing at midnight of the day on which the present value is actually received by the fund in cash.”</p> <p>On June 26, 1916, the Commission directed the appellant pursuant to the foregoing rules to pay into the State insurance fund $5,734, representing the alleged present value of the future installments of compensation payable by the appellant to the widow and children herein. The notice to the appellant stated: a All further liability to pay compensation under the above-numbered award will be assumed by the State Fund, commending on the day following the date on which the above sum is actually received by the commission. The present value above stated is discounted for mortality, remarriage and interest, in accordance with standard tables adopted by the Commission. No refund will, in consequence, be made in the event of the death or remarriage of dependents occurring subsequent to the assumption of liability by the State Fund.” From this decision the employer appeals to this court.</p> <p>At the time of the foregoing direction the widow was thirty-seven years old and her two children were about twelve and three years respectively. The award originally made directed payment to the widow during her widowhood of semi-monthly installments of ten dollars and eighty-eight cents, and to each child of semi-monthly installments of three dollars and sixty-one cents until such child shall reach the age of eighteen years.</p>

<p>Appeal by the defendant, Eugene M. Travis, as Comptroller, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on or about the 9th day of September, 1916, granting a peremptory writ of mandamus herein.</p>

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

Appeal by the plaintiff, Jesse J. Wield, from a1 judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Sullivan on the 9th day of February, 1915, upon the decision of the court dismissing the complaint after a trial before the court without a jury.

Appeal by the defendant, National Jewelers’ Board of Trade, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk óf the county of Schenectady on the 16tb day of December, 1915, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s' office on the 15th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, 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 6th day of April, 1916, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, Ray M. Gaffney, 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 5th day of May, 1916, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the plaintiff, Francis E. Suddard, from a judgment of the County Court of the county of Washington in favor of the defendant, entered in the office of the clerk of said county on the 24th day of June, 1915, dismissing the complaint upon the report of a referee.

Appeal by the defendants, Fred Plunkett 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 Washington on the 8th day of December, 1915, upon the report of a referee appointed to hear and determine the issues.

<p>Appeal by the defendant, Elizabeth E. Bush, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 18th day of September, 1916, denying her motion to include certain items in her bill of costs.</p>

Appeal by the plaintiff, Joseph Morey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 24th day of April, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also, as stated in the notice of appeal, from the order granting the nonsuit.

Appeal by the defendant, Louis M. Ream, appearing specially, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Rensselaer on the 10th day of April, 1916, as amended by an order entered in said clerk’s office on the 1st day of May, 1916, denying his motion to set aside and hold for naught the service of a notice of motion to vacate a judgment in plaintiff’s favor in a matrimonial action declaring her…

Appeal by the defendant, Joseph T. Ryerson & Son, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 24th day of July, 1916, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the plaintiff, Edward M. Hanrahan Company, from two orders of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 20th day of July, 1916, sustaining the separate demurrers of the defendants Rollin W. Meeker, as trustee of funds in his possession belonging to Harry I. Protzman, and Rollin W. Meeker, as trustee of funds in his possession belonging to Bessie H. Protzman, to the complaint.

Appeal by the claimant, The James Frazee Milling Company, from an order and judgment of the Board of Claims, entered in the office of the clerk of said board on the 14th day of July, 1914, dismissing its claim.

Appeal by the defendant, The Central Railroad Company of New Jersey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of January, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Theodore 0. Eppig, individually and 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 17th day of June, 1915, upon the verdict of a jury rendered by direction of the court.

Appeal by 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 overruling objections made to the payment in full of a judgment to the petitioner.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1916, denying its motion for a new trial made on the ground of newly-discovered evidence, and also from an order entered in said clerk’s office on the 5th day of July, 1915, denying a motion for the reargument of the prior motion.

Appeal by the defendant, Peter Doelger Brewing Company, Inc., 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 14th day of June, 1916, reversing a judgment of the Municipal Court of the City of New York, borough of Manhattan, fourth district, and ordering a new trial.

Appeal by the defendant, Clarence McMillan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of May, 1916, denying his motion for judgment on the pleadings consisting of a complaint and answer.

<p>Appeal by the defendants, George P. Eldredge 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 8th day of June, 1916, dismissing the counterclaims contained in the amended answers upon the decision of the court, demurrers having been interposed thereto.</p> <p>An appeal is also taken from an order entered in said clerk’s office on the 1st day of June, 1916, granting plaintiff’s motion for judgment on the pleadings, dismissing the counterclaims and sustaining the demurrers thereto.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 29th day of June, 1916, denying a motion to resettle a prior order fixing the transfer tax herein and also from the prior order entered in the office of said Surrogate’s Court on the 25th day of February, 1916.

Appeal by the defendant, Seed Filter and Manufacturing Co., Inc., from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 22d day of May, 1916, affirming a judgment of the City Court of the City of New York in favor of the plaintiff, and also from an order denying' defendant’s motion for a new trial.

Appeal by the defendants, Saul Froman and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of October, 1915, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 11th day of November, 1915, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by Horbert Blank 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 February, 1915, requiring him to pay over certain moneys, and also from an order entered in said clerk’s office on the 27th day of February, 1915, referring this matter to an official referee, and also from a further order entered in said clerk’s office on the 31st day "of December, 1915, upon a motion for a retaxation of costs.</p>

Appeal by the defendant, Julian Benedict Niles, from a judgment of the County Court of Bronx county, entered in the office of the clerk of said county on the 21th day of January, 1916, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Pennsylvania Eailroad Company, from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May, 1916, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, fifth district.

Appeal by the defendant, Max Hart, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of June, 1916, granting plaintiff’s motion for judgment on the pleadings, consisting of a complaint and demurrer thereto.

Appeal by the plaintiff, Whilden & Hancock, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 8th day of February, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Disciplinary proceedings by the Association of the Bar of the City of New York.</p>

<p>Attorney at law censured — physical contest with court officers in . presence of court.</p> <p>Attorney at law censured for disorderly conduct before a city magistrate to whom he refused to give up a paper when ordered to do so and for physically defending his possession against court attendants and policemen.</p>

<p>Disciplinary proceedings instituted by the Association of the Bar of the City of New York.</p>

<p>Husband and wife — alimony — enforcement of judgment for arrears of alimony — when sequestration proceedings do not lie — execution against husband’s wages — Code Civil Procedure, § 1391.</p> <p>A wife who has obtained a judgment against her husband for unpaid alimony which was awarded under a decree for separation and who has had an execution against her husband’s property returned unsatisfied cannot maintain sequestration proceedings to reach wages due and owing to her husband, it being conceded that he has no other property real or personal. Her remedy is to apply for an order under section 1391 of the Code of Civil Procedure, which applies not only to the prospective earnings of the judgment debtor, but also to accrued earnings which have not yet been paid.</p> <p>Laughlix, J., dissented.</p>

Appeal by the defendant, Elverton R. Chapman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of August, 1916, overruling his demurrer to the amended complaint, and also from an order entered in said clerk’s office on the 14th day of August, 1916, denying his motion for a reargument and to set aside the prior order.

<p>Appeal by the defendant, Renault Selling Branch, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1916, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 10th day of July, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of February, 1916, upon the verdict of a jury for $3,820.36, and also from an order entered in said clerk’s office on the 10th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Municipal corporations—city of Mew York —condemnation of lands to widen street — assessment of costs and expenses — effect of subsequent action reducing width of street — retaxation of costs.</p> <p>Where the original plan for the widening of a street in the city of New York contemplated the condemnation of an additional strip of land thirty feet wide and a former commissioner of assessment has taxed the costs and expenses of the proceeding on that basis, but subsequently the board of estimate and apportionment reduced the extra width of the improved street so that it only required the condemnation of a five-foot strip on either side of the existing street, it is error for a commissioner of assessment subsequently appointed, to include in his assessment of costs and expenses prior assessments made on five occasions under an old and extended plan of improvement. The assessment should be made only for the actual costs and expenses of the proceeding as modified by the elimination of other streets and by the change in width of the proposed street.</p> <p>Where such erroneous assessment is made the costs and expenses of the proceeding should be retaxed, pursuant to section 999 of the city charter.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 28th day of March, 1916, directed to the Public Service Commission, Second District, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in denying the application of the relator for a determination by said Commission as to whether fifteen cents is not a just and reasonable fare to be charged for a continuous trip between Mineóla and Port Washington, Nassau county, N. Y.</p>

Appeal by the defendants, George Brodhead and another, from an award of the State Industrial Commission, entered in the office of the said Commission on or about the 9th day of December, 1915.

<p>Certification by the State Industrial Commission to the Appellate Division, Third Department, of a question pursuant to section 23 of the Workmen’s Compensation Law (Consol. Laws, chap. 67 [Laws of 1914, chap. 41], as amd. by Laws of 1916, chap. 622).</p>

<p>Appeal by the plaintiff from part of an order granting the defendant’s motion to serve a supplemental answer.</p>

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

<p>Appeal from an order granting a motion for judgment on the pleadings.</p>

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

<p>Appeal from a determination of the Appellate Term affirming a judgment of the Municipal Court.</p>

<p>Appeal from an order denying a motion to dismiss the complaint.</p>

<p>Appeal from an order granting to relator an alternative writ of mandamus.</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 and denying a motion to dismiss the complaint.</p>

<p>Appeal from an order relieving a purchaser from his bid at a foreclosure sale.</p>

<p>Appeal from an order vacating a j udgment entered at Trial Term and restoring the case to the calendar.</p>

Appeal by Mary G. Quinby and John M. Sneden from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 12th day of July, 1916, resettling a prior order, entered June 16, 1916, which denied petitioners’ application for the appointment of Alfred Opdyke as successor committee of Julia T. Sneden and instead appointed John T. McGovern.

Appeal by the defendant from a judgment in favor of the plaintiff for $228.17 damages and costs, entered January 10,1916, in the Monroe county clerk’s office upon the verdict of a jury, and also from an order denying the defendant’s motion to set aside the verdict and for a new trial upon the minutes of the court entered January 12, 1916.

Appeal by Jason R. Swift, proponent, and as executor of the instrument propounded as the last will and testament of Francis Van Tine, deceased, from a decree of the Surrogate’s Court of the county of Cayuga, entered February 4, 1916; also from an order of said court entered on the same day denying proponent’s motion for a new trial; also from an order of the Supreme Court upon the trial of the issues sent therein by the Surrogate’s Court, denying the motion for a new trial…

<p>Appeal from an interlocutory judgment overruling demurrers to the complaint.</p>

<p>Appeal from an order denying a motion to preclude the plaintiff from giving testimony.</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 so much of an order as resettled as denies the motion of a purchaser at a foreclosure for the return of his disbursements and a reasonable counsel fee.</p>

<p>Appeal from order staying proceedings pending appeal from interlocutory judgment overruling a demurrer on defendant’s giving certain security.</p>

<p>Injunction — terms of order.</p>

<p>Appeal from an order vacating a warrant of attachment.</p>

<p>Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. Present — Clarke, P. J., McLaughlin, Laughlin, Dowling and Page, JJ.; Dowling, J., dissented.</p> <p>J udgment and order reversed and new trial ordered, with costs to appellant to abide the event, unless the plaintiff stipulate to reduce the verdict to the sum of $25,000, in which event the judgment as so reduced and the order appealed from are affirmed, without costs. No opinion. Order to be settled on notice.</p>

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 2d day of December, 1915, denying their motion for judgment on the pleadings.

<p>Appeal from an award and order of the State Industrial Commission, made on the 24th day of February, 1916.</p> <p>Award affirmed. AE concurred, except Kellogg, P. J., dissenting in memorandum, in which Howard, J., concurred.</p>

<p>Appeal from an award made by the State Industrial Commission March 2, 1916.</p> <p>Award affirmed. All concurred, except Woodward, J., who dissented.</p>

Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held: that it was the law of the case as charged by the court that plaintiff was not entitled to recover for the oily condition of defendant’s floors, -unless she satisfied the jury that there was a pool or unnecessary accumulation of oil at the place where she slipped differing in that respect from the general condition of the floor.

<p>Appeal from an order granting a motion to vacate an order for the examination of defendant.</p>

<p>Disciplinary proceeding instituted by the Bar Association of the City of New York.</p>

<p>Appeal from an order denying a motion to vacate an order for the examination.</p>

<p>Appeal from an order granting the plaintiff’s motion for judgment on the pleadings. .</p>

<p> Landlord and tenant—foreclosure of mortgage—right of receiver to rents. </p>

<p>Appeal from an order granting the plaintiff’s motion for judgment on the pleadings.</p>

<p>Appeal from so much of a decree settling administrator’s account as allows a claim for attorney’s fees and directs payment thereof.</p>

<p>Appeal from an order granting a motion for a peremptory writ of mandamus.</p>

<p>Practice — examination before trial — accounting.</p>

<p>Attorney and client — censure of attorney.</p>