Volume 176 — New York Appellate Division Reports

<p>Tax — franchise tax — when corporation not engaged in manufacturing — crushing and sorting natural product.</p> <p>A domestic corporation engaged in breaking, crushing and sorting natural rock, which it sells for use as “road metal ” and for the manufacture of concrete, is not engaged in “manufacturing” within the meaning of section 183 of the Tax Law, which entitles manufacturing corporations to an exemption from a franchise tax to the extent of the capital actually employed in this State for manufacturing and in the sale of the product of manufaetm-ing.</p> <p>Such treatment of raw material created by nature and which does not itself create a new article is not manufacturing, and it makes no difference that the operation is conducted on a large scale.</p> <p>Certiorari issued out of the Supreme Court and attested on the 11th -day of March, 1916, directed to Martin Saxe and others, as the State Tax Commission of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in imposing a franchise tax upon the relator.</p>

Appeal by the defendants, A. Roberson & Son and another, from an award of the State Industrial Commission, entered in the office of the said Commission on the 14th day of June, 1916. John Griffin, the injured employee, was employed as a cutter by A. Roberson & Son, a corporation engaged in the business of manufacturing and mill work.

<p>. Appeal by the defendants, Robert Gair Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 3d day of August, 1916.</p>

Appeal by the petitioners, Michael Simiele and another, from an order and judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Saratoga on the 4th clay of August, 1915, dismissing the petition herein upon the report of a referee.

Certiorari issued out of the Supreme Court and attested on the 8th day of July, 1915, directed to the Public Service Commission, Second District, of the State of New York, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in requiring the relator to operate a switch connection and side track on the property of the Lancaster Machine and Knife Works.

Appeal by the defendants, Rothstein & Pitofsky and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 13th day of April, 1916, and also from a further award entered on the 11th day of May, 1916.

<p>Crime—attempt to commit arson—question for jury—intent — overt act — erroneous charge.</p> <p>Upon the trial of an indictment for the crime of attempt to commit arson it appeared that the defendant being at variance with his wife and somewhat intoxicated, took a can of kerosene oil and saturated a bed with the oil; that, after doing this he said to his son: “I won’t do it. God has stayed my hand.” Then under the direction of the son he left the house and it was claimed that he spilled the oil by accident.</p> <p>Held, that it was for the jury to say whether the defendant poured the oil upon the bed with the intent to commit arson, and if so, whether his desisting therefrom was occasioned by his voluntary withdrawal from consummating his crime or whether he was led to abandon his purpose by his son or some other extraneous circumstance.</p> <p>A charge in substance that even though the defendant changed his mind, if for a time however short, he had it in his mind that he would burn the building, although he did not consummate the act or even change his mind, there would be an intent to commit a crime and it would be a crime in itself, was erroneous, although the court subsequently stated the correct rule of law, but did not rescind or in any way modify the first charge.</p> <p>If the defendant voluntarily abandoned his purpose the crime to commit arson did not exist and the charge was highly prejudicial to the defendant.</p> <p>Felonious intent alone is not enough to constitute a crime. There must be an overt act shown in order to establish an attempt.</p> <p>An overt act is one done to carry out the intention, and it must be such as would naturally effect that result.</p>

Appeal by Mary A. Simpson-Mix from part of a decree of the Surrogate’s Court of the county of Tompkins, entered in the office of said Surrogate’s Court on the 21st day of October, 1916, judicially settling the accounts herein and construing the will of George F. Simpson, deceased.

Appeal by the defendants, B. F. Adams and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 8th day of May, 1916.

<p>Workmen’s Compensation Law—-“dependency,” within meaning of section 16 of statute defined — “ surviving wife ” defined— surviving wife entitled to compensation, although-married after injury resulting in death of husband.</p> <p>The term “ dependency ” as used in the provision of section 16 of the Workmen’s Compensation Law that “all questions of dependency shall be determined as of the time of the accident ” should be restricted in its application to the same class of people to whom the term has previously been applied throughout the same section. It does not apply to surviving wife and children, because as to them it is immaterial.</p> <p>Hence, a surviving wife being one who survives her husband, irrespective of the time she married him, is entitled to compensation under the statute for the death of her husband, although she married him after the accident which resulted in his death.</p>

<p>Master and servant —negligence — death caused by electric current — proof justifying recovery — effect of long-continued low voltage shock —appeal—bankruptcy of defendant—refusal of trustee to participate in appeal—evidence.</p> <p>Action to recover for the death of a workman engaged in blasting in an underground tunnel and who was alleged to have been electrocuted by reason of faulty insulation on an electric light wire which he had been directed to remove from a socket by the defendant’s foreman, there being, however, conflicting testimony on this point. Evidence examined, and held, that the jury were justified in finding that the decedent had been killed by the electric current although it was claimed not to be dangerous to life owing to low voltage, and that the judgment entered on the verdict, which was the third rendered in favor of the plaintiff, should be affirmed.</p> <p>It seems, that a low voltage current may eventually cause death if the shock be long continued.</p> <p>The plaintiff in such action is not entitled to a dismissal of the defendant’s appeal because, having been adjudged bankrupt, the trustee in bankruptcy, who was granted leave to intervene and be substituted for the defendant corporation, declined to take part in the appeal.</p> <p>On reargument:</p> <p>Where a witness testified on direct examination that the socket from which he released decedent’s grasp after his shock was defective, and on cross-examination stated in effect that he noticed the defective socket prior to the time when he loosened decedent’s grasp therefrom, a jury may properly find that the socket from which the witness loosened the decedent’s grasp was the defective one which he had previously noticed, and not that it was another socket of the cluster of three.</p> <p>The defect in the insulation of the socket being obvious, as shown by testimony that it could be seen fifteen feet distant, it should have been discovered by the defendant’s foreman, charged with the duty of exercising care commensurate with the risks of broken insulation.</p> <p>The fact that the evidence was not direct or positive did not prevent a just inference of fault from being drawn.</p>

Appeal by the defendant, Frank V. Bruno, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 23d day of November, 1915, denying his motion to vacate and set aside a judgment heretofore rendered against him for the sum of $5,000.

<p>Attorney at law disbarred — unprofessional conduct in defense of one accused of crime — allowing witness to give testimony known to be false and assuming truth of same on summing up — duty of attorney in criminal cases — dishonorable methods must not be employed — Fifth Canon of Ethics.</p> <p>Attorney at law disbarred for gross professional misconduct in that, being attorney for a person indicted for receiving from a woman the proceeds of her prostitution contrary to section 2460 of the Penal Law, he aided and abetted the complaining witness, who had been in hiding, to give to the court and jury the false impression that she had just come to town to testify for the defendant, contrary to her testimony given before the grand jury, when as a matter of fact the attorney had interviewed her the night before, and for allowing her to give other testimony known by him to be false, and for treating the same as true when summing up.</p> <p>The obligation of an attorney at law to the court of which he is an officer is no less stringent in criminal than in civil cases, and the Judiciary Law authorizing the court to discipline its attorneys does not differentiate between their actions in criminal and civil proceedings, and in both instances an attorney must employ honest methods and refrain from deceit and chicane.</p> <p>Although an attorney under the Fifth Canon of Ethics may assume the defense of a person accused of crime, regardless of his personal opinions a.s to his guilt, he is only entitled to prosecute the defense “by all fair and honorable means.”</p> <p>Page, J., dissented, with opinion.</p>

<p>Contract—agreement for manufacture of goods — provision that defendant shall have exclusive right to determine what work shall be intrusted to plaintiff—refusal of defendant to furnish work — when no breach of contract.</p> <p>Where a contract between the plaintiff and defendants, who were engaged in the manufacture of shirts, among other things provided that the defendants would give to the plaintiff such of the work required in its business as the plaintiff shall be able to handle in his shop' according to the “exclusive judgment” of the defendants, it being expressly agreed that the defendants shall not be required to give to the plaintiff any more work than in their judgment can be handled by the plaintiff in his shop, nor any quality of work which, in their judgment, cannot properly be handled by him, the defendants are made the sole judge of the quantity and quality of the work to be intrusted to the plaintiff. Hence he cannot maintain an action to recover damages for the breach of the contract merely because the defendants, having intrusted the plaintiff with certain work, afterwards refused to give him further orders upon the ground that his plant was not adequate and that the work previously done was unsatisfactory and defective.</p> <p>Under such contract any determination by the jury as to the amount of work which the defendants should have given to the plaintiff would have been based upon pure speculation and would deprive the defendants of the right of exclusive judgment vested in them by the contract.</p>

Appeal by the defendant, Consolidated Telegraph and Electrical Subway Company, from an award of the State Industrial Commission, entered in the office of said Commission on the 19th day of July, 1916, and also from an amended award, entered on the 10th day of August, 1916.

Certification by the State Industrial Commission to the Appellate Division, Third Department, of the following question: “ Were the injuries which resulted in the death of Anthony Chludzinski accidental injuries and did they arise out of and in the course of his employment, within the meaning of the Workmen’s Compensation Law ? ” The Commission determined as a fact that the injuries were accidental injuries and arose out of and in the course of his employment, and certified…

Appeal by the defendants, Library Bureau and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 22d day of April, 1916.

Appeal by the defendant, Virginius St. Julian Mayo, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of October, 1916, directing him to answer certain questions on his examination before trial.

<p>Appeal by the defendant, Carl Schreiner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of January, 1916, upon the decision of the court after a trial at the New York Trial Term, a jury having been waived.</p> <p>The judgment directed defendant to render an account to plaintiff for premiums received on contracts of reinsurance by him as agent of the Munich Reinsurance Company.</p> <p>The opinion delivered at Trial Term is reported in Adamson v. Schreiner (95 Misc. Rep. 386).</p>

Appeal by the defendants, Gustav Lurie and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of July, 1916, overruling demurrers to the complaint.

Appeal by the defendant, Floral Park Villa Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of April, 1916, dismissing the counterclaim contained in the answer by direction of the court at the close of defendant’s opening.

Appeal by the defendant, Casualty Company of America, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of May, 1916, granting plaintiff’s motion for judgment on the pleadings consisting of an amended complaint and answer thereto, and also from the judgment entered in the office of the clerk of the county of New York on the 23d day of May, 1916, pursuant to said order.

Appeal by the plaintiff, James Fay, 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 14th day of April, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, The William J. Burns International Detective Agency, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of . the county of Hew York on the 30th day of March, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of April, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles M. Rosenthal, 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, denying appellant’s motion to require plaintiff separately to state and number the causes of action set forth in the complaint.

Appeal by the plaintiff, Leo Lowy, 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 or about the 23d day of June, 1916, reversing a judgment and order of the City Court of the City of New York in plaintiff’s favor upon a motion made by him for judgment on the pleadings.

Appeal by the defendants, S. Trimmer & Sons, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 29th day of May, 1916.

Appeal by the defendants, Manning Sand Paper Company and another, from an award of the State Industrial Commission, entered in the New York office of said Commission on the 28th day of August, 1916.

<p>Appeal by the defendants, The Buffalo Gas Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 19th day of January, 1916.</p>

<p>Appeal by the defendants, S. W. Bowne Company and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 15th day of August, 1916.</p>

<p>Certification by 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], a.s amd. by Laws of 1916, chap. 622).</p>

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 5th day of January, 1916, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 18th day of August, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by De Witt H. Lyon, who is the general guardian of the person and estate of William Crossman Lee, 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 7th day of August, 1916, directing him to deliver his ward into the custody of the petitioners Thomas Frederick Lee and Emma Kenyon Lee. ■In 1911 the decree divorcing Mrs. Georgia Crossman Mills from her husband,-William Mills,…

Appeal by the plaintiffs, Louise Elmhorst and another, as executrices, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Kings on the 21st day of March, 1916, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant, Armour & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 19th day of February, 1916, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 31st day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Catherine Rapp, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 14th day of June, 1916, upon a dismissal of the complaint by direction of the court on the opening.

Appeal by the defendant, Considine Investing Company, 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 10th day of December, 1915, overruling its demurrer to the complaint.

<p>Appeal by the defendant, Armour & Company, from a judgment of the Court of Special Sessions of the city of Yonkers, rendered against it on the 6th day of March, 1916, convicting it of a violation of the General Business Law, and also from a judgment and order of the County Court of Westchester county, entered in the office of the clerk of said county on the 17th day of August, 1916, affirming said judgment of the Court of Special Sessions.</p>

Appeal by the plaintiff, Abraham Goldinger, 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 29 th day of February, 1916, upon the decision of the court dismissing the complaint after a trial at the Kings County Special Term. The action is brought against the owner of real estate to recover for breach of an executory contract for the sale thereof.

Appeal by the defendant, Springfield L. I. Cemetery Society, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 4th day of October, 1916.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of September, 1916, granting plaintiff’s motion for judgment on the pleadings, and sustaining its demurrer to the first separate defense and to the second and third separate and partial defenses contained in the answer to plaintiff’s first cause of action.

Appeal by the plaintiff, New York County National Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of November, 1916, staying the trial of this action pending the hearing and determination of an appeal in an action brought by the defendant herein against the plaintiff herein and others, wherein the complaint was dismissed.

Appeal by the plaintiff, Joseph Blumenthal, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1916, denying plaintiff’s motion to vacate an order directing him to give security for costs, and also from an order entered in said clerk’s office on the 19th day of February, 1916, denying plaintiff’s motion to resettle the prior order.

Appeal by Áaron P. Garrabrant, as sole surviving executor and trustee, 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 22d day of March, 1916, judicially settling the accounts herein. Certain specific items of the decree are excepted from the appeal.

Appeal by Aaron P. G-arrabrant, as sole surviving executor and trustee, 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 22d day of March, 1916, denying appellants’ motion to vacate an order judicially settling their account and to open said proceeding.

Appeal by Sigmund Bendit and others, as executors, from an order of the Surrogate’s Court of the county of New York, entered in the office of the. clerk of said Surrogate’s Court on the 15th day of August, 1916, affirming a prior order fixing and assessing the transfer tax on this estate.

<p>Appeal by the defendants, George William Meyer, individually and as executor, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1st day of July, 1916, upon the decision of the court after a trial at the Westchester Special Term.</p> <p>The judgment decreed that plaintiff had a valid claim against the estate of John N. Meyer, deceased, and directed an accounting.</p>

Appeal by the petitioners, New York Municipal Railway Corporation and another, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 23d day of May, 1916, upon the report of a referee appointed to hear and determine the issues, as fails to adjudge that the petitioners recover costs against the defendants Jacob Kaplan and Rose Kaplan.

Appeal by the defendants, Maude Richardson and another, 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 29th day of August, 1916.

Appeal by the defendant, Bruno J. Kornau, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of May, 1916, upon a decision of the court overruling his demurrer to the amended complaint.

<p>Attorney at law censured.</p> <p>Attorney at law, who was recently admitted to the bar and was inexperienced, censured for unprofessional conduct in writing to the creditors of a certain person requesting that they place their claims in his hands for collection with the false statement that he was handling the claims of most of the other creditors, it further appearing that, realizing the impropriety of the act, he immediately attempted to rectify the same by writing and notifying the creditors that the former letter had been written by mistake and that the debtor was solvent and worthy of further credit, the latter statement not being founded upon personal knowledge.</p>

Appeal by the plaintiffs, Martin E. Stiner and another, copartners, 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 September, 1915, vacating a warrant of attachment herein on the papers upon which the same was granted.

Appeal in each action by the plaintiffs, Martin E. Stiner and another, from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of September, 1915, vacating warrants of attachment issued in each of the three cases upon the papers on which the same were granted.

Appeal by the Comptroller of the State of Hew York from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the 19th day of July, 1916, reversing an order fixing a transfer tax in the above estate.

<p>Principal and surety — action by ward on bond of general guardian — reinsurance of liabilities of surety company — suit against reinsurer — pleading — reinsurance agreement construed — complaint stating causé of action.</p> <p>"Where the bond of a general guardian issued by a surety company has been “reinsured” by another company, which assumed the obligations of the original surety, the ward for whose benefit the bond was given may, at his majority, maintain an action thereon against the reinsurer. Where the reinsurance agreement made between the surety companies provided that the reinsurer “shall take the place” of the original surety “as to all said unexpired bonds * * * in all respects with regard to all obligations therein and for loss thereunder on which no written notice of claim was received by any of the officers ” of the original surety prior to a certain date, and the complaint of the ward, properly setting out the default of his guardian, specifically alleges that no notice of the claim was received by the original surety prior to said date, but that thereafter when a decree had been made determining the liability of the general guardian and after the failure of his executors to pay upon demand, the guardian’s estate being insolvent, a demand was made upon both the original surety and the reinsurer, a demurrer to the complaint should not be sustained on the theory that the reinsurer only assumed responsibility for defaults occurring after the date set. Said complaint does not show that the default took place prior to the reinsurance agreement so as to exclude it from the reinsurance agreement.</p>

Appeal by the plaintiff, Lewis A. Cushman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of June, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1916, denying plaintiff’s motion for a new trial made upon the minutes, together with notice of an intention to bring up for review an order entered in said clerk’s office on…

Appeal by the defendant, The New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of June, 1916, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 16th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Leonhard Michel Brewing 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 20th day of May, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Master and servant — negligence — injury during tunnel construction —action at common law — negligence of fellow-servant — failure of “mucking ” foreman to remove loosened rock.</p> <p>A person employed in tunnel'construction and styled a “mucking” foreman, whose only duty is to remove-broken rock which has fallen from-a tunnel after a blast has been exploded, is not the alter ego of the master, but is the fellow-servant of those employed under him.</p> <p>Hence, where a member of the foreman’s gang was injured by arock which, having been loosened by a prior explosion, fell from the roof of the tunnel, there can be no recovery in an action brought solely at common law where the only negligence charged is that of said foreman in failing to remove the rock which had been called to his attention.</p>

Appeal by the plaintiffs, Joseph L. Bers and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 3d day of June, 1916, upon a dismissal of the complaint by direction of the court at the close of the case.

<p>Bills and notes—liability of bank for payment of checks after order from depositor to stop payment. .</p> <p>A bank cheek is a mere order upon the bank to pay a sum of money out of the depositor’s funds, subject to revocation by the drawer at any time before payment, and if the bank pays after notice of revocation, it will be held to have made payment out of its own funds.</p> <p>Hence, where a bank, after receipt of a notice from a depositor to' stop • payment on certain checks, received a letter from said depositor purporting to cancel the prior notice, but not signed by the proper officers and returned the same, and before receiving it again in proper form paid the checks, it is liable for the amount thereof.</p>

<p>Evidence—action for breach of contract for sale of goods — defense that contract was made by defendant as agent —proof of agency.</p> <p>Where, in an action to recover damages for the breach of a contract of sale of goods which the defendant failed to deliver, it claimed that it made the contract as selling agent for another company, evidence that the letter written by the defendant to the plaintiff confirming, the order of sale and the billhead upon which the order was made, and various other orders and letters which had passed between the parties, contained words in the left-hand corner thereof to the effect that the defendant was selling agent for another company, were irrelevant and properly excluded.</p> <p>Oral testimony that the goods sold belonged to the other company did not tend to show that the plaintiff was contracting with said company and was, therefore, properly excluded.</p> <p>The mere fact that the defendant’s letter heads were notice that it was agent for the other company was no evidence that in the present case it was contracting in such capacity, especially since it did not take the usual precaution of signing its name to the order as agent.</p>

Appeal by the plaintiff, James Fay, from a judgment of the Supreme Court in ‘his favor for nominal damages,, entered, in the office of the clerk of the county of New York on the 1st day of June, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1916, as resettled by an order entered in said clerk’s office on the 1st day of June, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Pleading — complaint — action for injury to plaintiff from negligent treatment in defendant’s medical institute — sufficiency of allegations as to nuisance and false representations.</p> <p>A complaint which alleges in effect that the defendants, having control of certain premises, maintained or permitted to be maintained for profit a medical institute, constituting a nuisance; that plaintiff went to said institute for examination and treatment in-the belief, induced by certain false advertisements, that he would find there competent and skilled doctors and nurses, ete.; that either the defendants or their representatives agreed for a valuable consideration to examine and treat him skillfully and completely cure him of his disease, and that defendants either treated him or permitted him to be treated, for which treatment he paid, and that as a result he was permanently injured, fails to state a cause of action.</p> <p>The allegation as to false representations by advertisement, not being supported by statements connecting them with its publication, was insufficient; so also the allegation as to the maintaining of a nuisance was a' mere conclusion, with no statement of fact to support it.</p>

<p>Insurance — action on fire insurance policy — defense — fraud—when motion to set aside nominal verdict denied.</p> <p>Where in an action on a Are insurance policy it appears that the plaintiff fraudulently exaggerated the amount of its loss and supported its claim by fraudulent bills and is not entitled to a recovery, its motion to set aside á verdict for a nominal sum should be denied.</p>

<p>Appeal by the defendant, Lehigh Coal and Navigation 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 28th day of April, 1916, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 23d day of May, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Frederick Biers, from part of a judgment of the County Court of Erie county, entered in the office of the clerk of said county on the 19th day of February, 1915, as amended nunc pro tunc by an order entered in said clerk’s office on the 10th day of April, 1916.

<p>Intoxicating liquors — when action by holder of liquor tax certificate to recover moneys paid to brewing company to indemnify bondsmen, premature.</p> <p>Where an applicant for a liquor tax certificate paid money to a brewing company to indemnify his bondsmen, the bond providing among other things “ That all fines and penalties which shall accrue during the time the certificate applied for is held, and any judgment or judgments recovered therefor, will be paid, together with all costs taxed or allowed in any action or proceeding brought or instituted under the provisions of the said Liquor Tax Law,” and such person pleaded guilty to an indictment charging him with the crime of maintaining a disorderly house, thereby breaching a condition of his bond, but no action has been brought thereon, but the certificate having been assigned, a proceeding is pending to cancel the same based upon the original holder’s misconduct, an action by him to recover the money paid to the brewing company is premature.</p>

<p>False imprisonment — when judicial officer not civilly liable — liability of justice of the peace.</p> <p>Where a judge has full jurisdietion of the subject-matter and of the parties, whether his jurisdietion be a general or a limited one, he is not liable civilly where he acts erroneously, illegally or irregularly, nor is he liable for a failure to exercise due and ordinary care, or where he acts from malicious or corrupt motives.</p> <p>Hence, a justice of the peace, who commits a defendant upon a charge of robbery and assault in the second degree, although there was evidence to the effect that said defendant had been convicted before another justice of the same town of assault in the thud degree, claimed to be the same offense and a bar to further prosecution, is not liable for false imprisonment, although his action may have been erroneous.</p>

Appeal by the plaintiff, Bessie M. Murphy, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 6th day of March, 1916, vacating and setting aside the verdict of a jury in plaintiff’s favor for $700, and directing a new trial.

<p>Appeal hy the plaintiff, The People of the State of New York, from a judgment of the^ Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga-on the 6th day of June, 1916, dismissing the complaint hy direction of the court.</p>

Appeal by Eugene Lamb Richards, as Superintendent-'of Banks of the State of New York, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 3d day of April, 1916, granting the application of the respondents and ordering him to refrain from further proceedings in respect to the liquidation of the assets of said firm. Also a motion by the respondent to dismiss the appeal.

Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tioga on the 13th day of October, 1915, upon the verdict of a jury for $3,500.

Appeal by the defendant, Alice Steele, from a judgment of the County Court of Cortland county, entered in the office of the clerk of said county on the 26th day of August, 1916, modifying a judgment of a Justice’s Court by reducing it from eighteen dollars and seventy-five cents to seven dollars and sixty cents, and as so modified affirming it.

<p>Corporations — bankruptcy — suit by trustee in bankruptcy in protection of creditors to recover property alleged to have been transferred and wasted by the directors and officers of the bankrupt — pleading — complaint.</p> <p>Where in an action by a trustee in bankruptcy of a corporation against the former officers thereof and the corporation to nullify an alleged alienation of certain realty and moneys of the corporation to one of the defendants, and to recover the realty and money lost to the creditors and wasted through the neglect and failure of the individual defendants to perform their duties as officers and directors to preserve the assets for the payment of the corporate debts, there is no allegation that at the time of the alleged transfer there were any creditors in existence, or that the transaction was in furtherance of a scheme to defraud subsequent creditors, or that the corporation was insolvent or that the conveyance made it insolvent, a motion for judgment on the pleadings should be denied.</p>

Reargument of an appeal by the defendant, Jacob Bergman, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 3d day of April, 1916, convicting him of the crimes of burglary in the third degree and of grand larceny in' the first degree, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial and in arrest of judgment.

<p>Evidence—action on undertaking of holder of liquor tax certificate— proof that defendant allowed the premises to become disorderly — record of prior judgment convicting defendant’s wife of keeping disorderly house—when record of prior conviction inadmissible in civil action—effect of suspension of sentence — Liquor Tax Law construed — charge—when wife of defendant not interested witness.</p> <p>In an action against the holder of a liquor tax certificate and his surety brought by the State Commissioner of Excise to recover on the bond for a violation of the Liquor Tax Law, the fact that the defendant allowed the premises to become disorderly cannot be established by the record of a Court of Special Sessions which shows that the wife of the defendant had been previously convicted of keeping a disorderly house on the premises in violation of section 1146 of the Penal Law. Such evidence is inadmissible either against the defendant or his surety.</p> <p>While a verdict or judgment in a criminal ease is admissible to establish the mere rendition of the judgment, it cannot be given in evidence in a civil action to establish the facts on which it was rendered.</p> <p>Such conviction of the wife of the defendant does not become admissible upon the theory that both the criminal action and the action on the bond are brought by the People and that the defendants are the same in that the wife was the alter ego of her husband.</p> <p>Moreover, such record of conviction is properly excluded where the sentence of the defendant was suspended, for it did not amount to a legal conviction. This is true, although the term “ conviction,” as used in the Liquor Tax Law, includes a finding of guilt resulting from a plea of guilty irrespective of the pronouncing of judgment or the suspension thereof, for said rule relates only to cases which are within sections 21, 23, 24, 26 and 36 of the Liquor Tax Law.</p> <p>In such action it was not error for the court to refuse to charge that the defendant’s wife must be deemed an “interested witness” where he in fact instructed the jury that they might consider the wife’s relation to her husband as creating a bias or prejudice in his favor which they were entitled to take into account in determining the weight of her evidence. Cases collated and discussed, per Jenks, P. J.</p>

<p>Appeal by Robert E. Farley, as executor, and others from so much of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the. 7th day of December, 1915, as adjudges that certain provisions of the first codicil to the will are invalid and void.</p> <p>The 3d paragraph of the first codicil of the testator’s will directed that certain gifts should not be paid until eight years after the testator’s death, and that no devise or legacy of a stated amount to a relative should he paid until five years after the testator’s death, unless the executors shall consent, in writing, to an earlier payment, and that no interest shall be allowed on any such devise or legacy. The 4th paragraph of the first codicil gave all the testator’s property to his executors in trust with a discretionary power of sale to apply the income until such time as they were directed to distribute the estate, and then to divide the same equally among certain specified beneficiaries, the 3d paragraph of the codicil being expressly made to apply to this provision.</p>

<p>Appeal by the defendant, George A. Porter, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Orleans on the 18th day of May, 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 or about the 6th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Municipal corporations — city of Fulton — death of “ call ” fireman through performance of duties — when widow not entitled to compensation — General Municipal Law construed.</p> <p>The widow of a “call” fireman of-the city of Fulton is not entitled to recover from the city the sum of $2,500 under section 205 of the General Municipal Law, as amended, or under section 119 of the city charter, where the husband was killed in the performance of his duties, there being no proof that the decedent had been a volunteer fireman in either of the villages which were consolidated to make the present city of Fulton. '</p> <p>Kruse, P. J., dissented, with memorandum.</p>

<p>Railroads — Buffalo Grade Crossing Act construed—when second award of damages may be set aside — elevation of railroad tracks interfering with switch to private property — switch not situated on railroad lands — damages.</p> <p>Section 14 of the Buffalo Grade Crossing Act, which purports to make final a second award of damages to an abutting owner, does not limit the number of times a report of commissioners may be set aside if it appears that there has been a misconception of the facts, and the commissioners have proceeded upon a fundamentally erroneous view of the law, so that a confirmation of the report will result in gross injustice.</p> <p>Where a change in the grade of a street and the construction of an overhead crossing, resulting in the elevation of railroad tracks, interfered with a switch or siding which connected the plant of an elevator company with the railroad, the company is not entitled to compensation where it appears that the railroad company did not own the land upon which the switch formerly stood, and that to reconstruct the switch it will be necessary, not, only to cross the public street, but also private lands which are owned neither by the railroad company nor the claimant.</p>

<p>Railroad—contract with terminal company construed — demurrage — when terminal company entitled to reasonable value for storing freight for railroad company.</p> <p>Where a contract between the defendant railroad company and the plaintiff, which operated a terminal freight station, required the latter to receive and transfer the defendant’s freight and deliver the same as consigned, and provided that the responsibility of the plaintiff should continue until it returned cars to the defendant, loaded or empty, and until the actual delivery of the freight contained therein, in consideration of which the defendant was to pay in full compensation certain sums set forth in the schedule, but the contract made no provision whatever for any kind of storage of freight in the plaintiff’s warehouse, and in no way referred to compensation to the plaintiff for storage of cars or freight, the plaintiff having stored a car of merchandise received from the defendant for a period of one year owing to the fact that the consignee refused to receive the goods, which storage was continued at the request ? of the defendant, in order to allow the year to expire before the goods could be sold pursuant to the statute, the defendant is liable to the plaintiff for the reasonable value of such storage, as no duty in respect to storage was imposed upon plaintiff by the contract.</p> <p>Especially is this so where the defendant railroad had full control of the freight and power to withdraw it from the custody of the plaintiff at any time.</p>

<p>Appeal by the plaintiff, Francis M. Sutton, 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 5th day of January, 1916, dismissing the complaint upon the -decision of the court after a trial before the court, a jury having been waived.</p>

<p>Appeal by the plaintiff, Bernard Fliashnick, 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 31st day of March, 1916, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Bernhard Blumenthal, from a determination and order óf the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of May, 1916, affirming a judgment of the City Court of the City of New York dismissing the complaint.

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 31st day of January, 1916, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 16th day of February, 1916, denying its motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Kingston Gas and Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 26th day of November, 1915, upon the verdict of a jury for $15,000, reduced by stipulation to $11,000.</p> <p>The appeal is taken from said judgment as corrected by an order entered in the office of the clerk of the county of Ulster on the 14th day of March, 1916. Defendant also appeals from an order entered in said clerk’s office on or about the 26th day of October, 1915, denying defendant’s motion for a new trial made upon the minutes. The Appellate Division of the Third Department transferred the appeal to this department under section 231 of the Code of Civil Procedure, because two of their justices had been disqualified. (See 174 App. Div. 935.)</p> <p>Plaintiff’s intestate, Arthur Bishop, a lamp trimmer, was employed to lower large suspended arc lamps, wipe off the glass globes and renew the carbon pencils. He had no duty to inspect the wires or to test them for the presence of electric currents. About ten A. M. of May 21, 1908, Bishop had gone to trim such a lamp, hung in Grand street, Kingston, a little south of the railroad crossing. Bishop had been provided with rubber gloves and a stepladder. His wagon had been driven under this lamp, which he first lowered by a rope. The night had been rainy, and the wagon was wet, having an iron rail. Standing with one foot on the bottom of the wagon and the other on a spoke in the rear wheel, he was seen to reach upwards towards a wooden switch handle at the top of this globe light. He suddenly fell backwards; when picked up he was dead. A burn was seen on his right hand. There was no autopsy. Defendant had maintained, strung on the same, crossarms, lighting wires (the current of which was shut off by day) and primary wires with 2,300 voltage for power purposes during working hours. The two primary wires are ranged inside, next to the pole, with each lighting wire about fourteen inches outside the primary wire. Following back these wires after this casualty, a crossed wire was located about six or seven blocks off, at the northwest corner of Elmendorf street and Ten Broeck avenue. This crossarm was about fifteen feet lower than the next crossarm at the northeast corner of these streets. The wires had this dip to run beneath the spreading limbs of the maple shade trees on this part of Ten Broeck avenue. This angle gave the wires an upward lifting strain at this crossarm. The lighting wire was found at this time to have been lifted off with its glass insulator and the attached wooden pin, so as to be entirely out of the hole in the crossarm. The lighting wire, thus freed of its support, had swung against and come into electric contact with the primary wire. This pin had been nailed into the crossarm by an ordinary sixpenny nail, which was then missing. There was no guard to keep such a wire clear from contact with the primary wires. This action was brought under the Employers’ Liability Act.* The jury gave a $15,000 verdict. The trial justice, however, directed a new trial unless plaintiff should consent to reduce the verdict to $11,000, which was so stipulated.</p>

Appeal by the defendant, American Sugar Refining Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of April, 1916, upon the verdict of a jury for $4,000, 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>Appeal by the defendants, William A. Prendergast, as comptroller, and others, 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 3d day of October, 1916, as overrules their demurrer to the complaint and grants plaintiff’s motion for judgment on the pleadings.</p>

Appeal by the defendants, Edward F. Boyle and others, as custodians, etc., 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 15th day of September, 1916, granting relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, New York State Railways, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 27th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes after the verdict of a jury in plaintiff’s favor in the sum of $4,000.

<p>Appeal by the defendants, John H. Van Nostrand, individually and as president, and Elmont Cemetery, 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 Nassau on the 17th day of August, 1916, overruling their demurrers to the complaint.</p>

Appeal by the defendant, William H. Owen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 25th day of January, 1915, upon the decision of the court after a trial at the Oneida Special Term. The judgment directed defendant to surrender a certain stock certificate for cancellation.

Appeal by the defendant, Charles Boehm, from a judgment of the County Court of Onondaga county, rendered against him on the 7tli day of April, 1916, revoking the suspension of execution of that part of a judgment entered in said court on the 28th day of November, 1914, which provides for the ' imprisonment of the defendant in the Onondaga County Penitentiary for a term of one year, and ordering the said judgment to be executed.

<p>Appeal by the defendant, Kings County Refrigerating Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of January, 1916, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment enjoined defendant from discontinuing refrigeration to the plaintiff, and appointed a referee to take proof.</p> <p>On May 16, 1910, the defendant contracted to supply refrigeration, through a system of pipes, to plaintiff’s cold storage “boxes” or compartments of “ about 26,946 cubic feet,” then under construction, which plaintiff was to maintain for' its packinghouse at Metz street, Brooklyn. This was for the term of five years from June 1, 1910, with privilege of a further renewal five-year term. The agreement contained the further clause: “ This contract is to continue in force after the expiration of the time above mentioned, until either party have given 30 days’ notice in writing of a desire to terminate same.” There were also clauses and conditions set forth on the hack of this instrument.</p> <p>At this time defendant held a franchise granted by the board' of estimate in 1907. This first franchise (the terms of which are not in evidence) was surrendered in 1914 and a new franchise granted which is still in force. By it defendant was authorized to construct, maintain and operate certain pipes and conduits with the necessary branches and extensions therefrom leading directly into private property and into property of the city in Wallabout Market for the sole purpose of supplying refrigeration to consumers. Defendant’s pipes are permitted to be operated beneath the Brooklyn streets, avenues and highways included in two districts which are defined by a map accompanying its petition to the board of estimate and apportionment dated July 25, 1914.</p> <p>Plaintiff’s cold storage compartments take several floors of a building fifty feet front and one hundred and ten feet deep. There are now five compartments in all, divided by solid partitions. The large box or cooler on the main floor was fifty-five feet by thirty feet and eight feet high; above that, on second floor, a cooler fifty-five feet by twenty feet, seven feet high, then a third cooler fifty-five feet by seventeen feet by seven feet, which is called a “pickle cooler” to cure meats. In this was later installed a smaller apartment called a “freezer,” seventeen feet by seven feet by seven feet.</p> <p>This subdivision of the plaintiff’s building had not actually been made at the time of this contract. But on its final completion the total contents measured 29,244 cubic feet, being 2,298 cubic feet (about eight and a half per cent) above the con-, tract estimate of 26,946 feet.</p> <p>About a year and a half later another cooler was built on the third floor, which is called cooler No. 4, which is refrigerated under a separate contract at a rate of twenty-nine dollars and seventeen cents, which is not in dispute here.</p> <p>In 1914 defendant seems to have planned to use hrine instead of ammonia. After June 1, 1915, plaintiff continued its payments. In July defendant found fault with the insulation inside of plaintiff’s boxes. Some letters then passed. On September 7, 1915, defendant wrote plaintiff that it would stop its refrigeration on October first because of poor insulation, and “also for other good and sufficient reasons.” Bills were inclosed for separate refrigeration of the “freezer,” running back in 1910, $1,072.06, also for the additional cubic feet for $388.05, and for $153.30 for September refrigeration. On September tenth defendant returned plaintiff’s check for $129.17, offered for September refrigeration, because said check said “in full.” On September tenth plaintiff formally wrote defendant that it had continued the contract for five years from June 1, 1915, in exercise of its privilege. On September fourteenth defendant wrote plaintiff correcting its earlier letter of September seventh, to the effect that it would discontinue plaintiff’s refrigeration on October seventh on four specified grounds: (1) Bad insulation of plaintiff’s boxes; (2) interference with valves of its pipes by plaintiff’s employees; (3) for refrigerating more than the contract figure of 26,946 cubic feet; (4) for not renewing the contract of May 16, 1910. Defendant also claimed a right to terminate on giving thirty days’ notice, to expire October seventh. On October sixth, the day before this threatened stoppage, plaintiff obtained this temporary injunction, which was made permanent at the trial.</p> <p>The learned trial justice found that the term “ about 26,946 cubic feet ” covered the actual cubic capacity, although it turned out to be 29,244 cubic feet; that, hence, defendant could not lawfully require extra compensation for such excess. He held also that the cork insulation had not been properly renewed, or had not been kept in repair and needed overhauling. The court sent to a referee to take testimony and ascertain and report what would be needed to put the refrigeration in proper condition..</p>

Appeal by the plaintiff, The Merchants Bank of Brooklyn, 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 November, 1916. In 1900 the Merchants Bank of Brooklyn obtained a judgment of the Supreme Court against this defendant. Later, the Merchants Bank of Brooklyn was merged in the Union Bank.

Appeal by the relator, John F. Tappin, 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 20th day of July, 1914, denying his motion to vacate an order discontinuing certiorari proceedings.

Appeal by Mary E. McDevitt, foster parent, from an order of the county judge of Kings county, entered in the office of the' clerk of said county on the 26th day of June, 1916, abrogating an order made by said judge on the 24th day of April, 1915, in the original adoption proceedings herein.

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 Kings on the 15th day of June, 1916, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 28th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.

Separate appeals by Eobert Ellis, as executor and trustee, and by Henry Burden and another, heirs at law and legatees, from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 6th day of November, 1913, judicially settling the accounts herein.

<p>Appeal by the plaintiff, John B. Kettel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of November, 1915, 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 22d day of November, 1915, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Borden’s Condensed Milk Company, 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 9th day of June, 1916, upon the verdict of a jury for $3 52, and also from an order entered in said clerk’s office on the 14th day of June, 1916, denying said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by William Powers, the petitioner, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of said court on the 26th day of April, 1916, upon the verdict of a jury as adjudges that the execution of the alleged last will and testament of Mary Powers, deceased, was procured by fraud and undue influence, and that the alleged will is, therefore, invalid and void.</p> <p>An appeal is also taken from an order of said Surrogate’s Court, entered in the office of the clerk of said court on the 26th day of April, 1916, denying petitioner’s motion to set aside the verdict of the jury and for a new trial as to the finding of fraud and undue influence.</p>

Appeal by the plaintiff, Julius Katz, 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 or about the 13th day of January, 1915, setting aside the verdict of a jury in plaintiff’s favor for $5,000, and granting a motion for a nonsuit, and also from the judgment entered in said clerk’s office on the same day, dismissing the complaint pursuant to said order.

Appeal by the defendant, Thomas Healy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of April, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Levy & Gilliland 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 16th day of June, 1916, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Charles Lamphear, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the M-th day of December, 1915, setting aside the verdict of a jury with respect to the first question submitted to it and granting a new trial on said question in a partition suit.</p> <p>The verdict was set aside on the ground of error in handing to the jury the entire letter, Exhibit 0, for identification, which the jury took with them into the jury room, the principal contents of which letter have been excluded as being substantially prejudicial to the defendant Amos S. Lamphear.</p> <p>Also an appeal by George W. MacLean and others, as executors and trustees, from so much of said order as directs a new trial of the issue by a jury.</p>

Appeal by Eugene Lamb Richards, as Superintendent of Banks, 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 3d day of August, 1916.

Appeal by the defendant, New York Railways 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 Y ork on the 30th day of June, 1916, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 27th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of .the county of Richmond on the 29th day of December, 1916, denying its motion for judgment on the pleadings, consisting of a complaint and answer.

<p>Appeal by the plaintiff, Sarah E. Wells, 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 25th day of May, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the plaintiff, Leona Holding Corporation, 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 12th day of June, 1916, dismissing the complaint upon the merits and granting judgment on the counterclaim upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, General Dehydrator 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 March, 1916, granting defendant’s motion for judgment on the pleadings, consisting of a complaint, answer, supplemental answer and reply, and also from the judgment entered in said clerk’s office of the 28th day of March, 1916, dismissing the complaint herein, pursuant to…

Appeal by the plaintiff, Maybelle D. Gouert, 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 17th day of June, 1916, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.

<p>Negligence — death of person employed in building under construction by fall through uncovered landing in partially completed stairway —when neither owner nor contractor liable — obvious risk — failure to post notice of danger — contributory negligence.</p> <p>A landowner who contracts for the erection of a building on his premises owes no duty of active vigilance to protect the employees of one contractor from the negligence of those, of another contractor. His only liability is for some affirmative act of negligence, as by taking some part in the performance of the work other than such general supervision as is necessary to insure its due performance.</p> <p>Thus, such owner, who is not charged with any affirmative act of negligence, is not liable for the death of an employee of one contractor who fell through an opening in a partially constructed stairway which was being built by other contractors.</p> <p>Moreover, a contractor engaged in building such stairway which was obviously uncompleted, is not liable for the death of the employee of the other contractor, who attempted to reach the upper stories of the building by the partially completed stairway and who fell through the uncovered landing, where it was- not necessary for the decedent to use the stairway.</p> <p>Neither the owner, nor the contractor building the stairway, can be charged with negligence by reason of the fact that they did not place a notice at the foot of the stairway stating that it was uncompleted, if in fact its condition was obvious.</p> <p>jHeld, in an action to recover for death so caused, that the only negligence shown was that of the decedent.</p> <p>Dowling, J., dissented.</p>

Appeal by the Title Guarantee and Trust Company and another, as executors and trustees, from an order of the Surrogate’s Court of the county of Hew York, entered in the office of said Surrogate’s Court on the llth day of June, 1915, fixing and assessing the transfer tax upon the remainders created by the will of Julius Steinwender, deceased, upon an appeal from a prior order therein.

Appeal by the defendant, Max Hirshkind, 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 7th day of February, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Deposition—practice — examination of witness before trial — service of papers.</p> <p>An order for the examination of a witness before trial will be vacated where the papers were not served upon the attorneys for a defendant who has appeared, or personally upon a defendant who has not appeared, as required by section 875 of the Code of Civil Procedure.</p> <p>The court has no. authority to provide in the order that service upon the witness alone shall be sufficient.</p>

<p>Sale — agreement of manufacturer of defective machine to bear expense of remedying defect — failure of vendor of defective machine to make repairs promptly — when manufacturer not liable for damages caused by vendor’s delay — judgment roll in prior action — evidence.</p> <p>The plaintiff sold to the Price Company heating machines manufactured by the defendant and guaranteed by it to evaporate a certain quantity of water from a “tenter frame” of certain dimensions which latter machine was manufactured by the plaintiff and sold to the Price Company at the same time. As the defendant’s heating machine did not develop the efficiency guaranteed, the present plaintiff notified the defendant of the refusal of the Price Company to pay for the machinery and the defendant directed the plaintiff to make alterations in the “ tenter frame ” machine so as to afford the defendant’s heater more opportunity for evaporation, the defendant offering to pay the expense of the alterations. Although the plaintiff’s contract with the Price Company had a time limit set for performance, the alterations were not completed by the plaintiff until some time thereafter, and when the plaintiff sued the Price Company for the value of the machines the latter counterclaimed for damages caused by the delay and the- present plaintiff notified the defendant of said counterclaim and that it would hold the defendant to reimburse it for any damages caused by the defect in the defendant’s heater. The defendant did not join in the defense of the former action and in the present action, brought on the defendant’s guaranty, the judgment roll in the former action was introduced over the objection of the defendant, the court holding that it was binding upon the defendant and refusing to allow any evidence against the same.</p> <p>Held, that the judgment in the former action was competent only to prove that the defendant’s heater did not meet its guaranteed capacity, thereby necessitating some delay, and that as this fact was admitted by the defendant the introduction of the judgment roll was unnecessary.</p> <p>Held further, that the defendant’s offer to prove that the delay which caused damage to the Price Company was due partly to the fault of the plaintiff in failing to proceed with reasonable dispatch to make the repairs for which the defendant had offered to pay was improperly rejected, and that it was error for the court to dismiss the complaint.</p>

Appeal by the plaintiff, Morris Welensky, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 8th day of June, 1916, upon a dismissal of the complaint by direction of the court on the opening.

Appeal by the plaintiff, Yorkshire Ice Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 25th day of January, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of January, 1916, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Joseph Joyce, 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 25th day of February, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of March, 1916, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Joseph McCaldin, individually and as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of January, 1917, denying his motion to vacate an order for his examination-before trial in order to enable plaintiff to framéhis complaint.

Appeal by the plaintiff, Josephine Guntzer, as administratrix, etc., 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 December, 1916, appointing a referee to take the testimony of the jurors on a motion to vacate a judgment and set aside the verdict.

Appeal by the plaintiff, Metropolitan By-Products Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of October, 1916, granting respondents’ motion for a change of venue, and also from an order entered in said clerk’s office on the 4th day of November, 1916, denying plaintiff’s motion to resettle the prior order.

Appeal by the defendant, Tt. Lawrence Smith, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1916, denying defendant’s motion for judgment on the'pleadings, consisting of a complaint and answer.

<p>Appeal by the defendant, Israel Stone, from a judgment oí the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Bronx on the 25th day of February, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of February, T916, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Granville Gibbons, from a determination 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 June, 1916, reversing a judgment of the Municipal Court of the City of New York, fifth district, borough of Manhattan, in defendant’s favor, and granting plaintiff a new trial.</p>

Appeal by Ella K. Canfield from a decree of the Surrogate’s Court of the county of Orange, entered in the office of said Surrogate’s Court on the 6th day of April, 1916, adjudging certain notes to be part of the assets of this estate.

Appeal by the plaintiff, Alexander Reisenburger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 25th day of Hay, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Building contract—agreement to change building material — action by contractor — evidence.</p> <p>In an action by a builder to recover on a building contract, it appeared that the plaintiff agreed to construct a house that should not cost over $10,000; that he presented a bill for extra work for $2,414.50, of which $2,005 was for changing the building material from unit brick to hollow tile, and that the owner and his wife testified that the plaintiff upon recommending the change, said that there would be no increase of cost. The plaintiff admits that he stated that the hollow tile would cost only a few hundred dollars more, but that he made the representation in ignorance of what the cost would be.</p> <p>Held, on all the evidence, that a judgment for the plaintiff should be reversed and a new trial granted so that it may be ascertained (1) whether the plaintiff agreed to use the hollow tile without extra charge, or if not (2) what sum should be paid him for using such material.</p>

<p>Real property—conveyance to man and woman not legally married — tenants by the entirety or joint tenants—tenants in common — parol agreement as to nature of tenancy—evidence—admissibility under section 829 of the Code of Civil Procedure.</p> <p>A conveyance was made in which the grantees were named as “Mary Hommel and Frank Hommel, her husband. ” But the marriage was void and of no effect. In an action by the sister of Mary Hommel, after the latter’s death, to partition the property, held, that the grantees took title as tenants in common, and that a prior parol agreement was insufficient to create a joint tenancy,'or a tenancy by the entirety.</p> <p>The testimony of Frank Hommel given upon examination before trial regarding the parol agreement was incompetent under section 829 of the Code of Civil Procedure.</p> <p>Under section 66 of the Real Property Law, a joint tenancy can only be created by express words in a conveyance.</p>

Appeal by Eugenie Ferrer Lord from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 22d day of August, 1916, dismissing her petition and decreeing that she is not such a party in interest as to enable her to file objections to the probate of the will herein.

<p>Appeal by Charles H. Semken 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 4th day of February, 1916, denying his application for a peremptory writ of mandamus.</p>

<p>Master and servant—negligence—Labor Law—injury to shipping clerk while piling cases in warehouse — defect in floor causing tipping of case on which plaintiff was standing — evidence — question of fact.</p> <p>In an action under the Labor Law brought by a shipping clerk against bis employer, a manufacturer of hats, for personal injuries, it appeared that the defendant had laid boards from six to eight inches apart on four-inch joists over a concrete floor; that while the plaintiff was in the act of shifting a case of hats to the third or highest tier, and standing on the outside edge of a lower ease, the edge being the only part of sufficient strength to sustain his weight, the case tilted into the space between the boards, throwing him to the floor.</p> <p>Held, on all the evidence, that the defect was not in the cases, the piling of which comprised the plaintiff’s work, but in the wooden floor, and that it was a question for the jury as to whether the accident could have happened if the boards had been close together.</p>

Appeal by the defendant, Federal Trust Company, from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of November, 1916, the first granting plaintiff’s motion to file a certain notice nunc pro tunc as of August 30, 1914, and the other denying defendant’s motion to vacate the warrant of attachment herein.

<p>Appeal by the defendant, Michael Staub, 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 March, 1916, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 24th day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Edgar W. Bassick and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1917, granting an injunction pendente lite.

<p>Appeal by the plaintiff, William A. Halbe, 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 28th day of June, 1916, upon the decision of the court after a trial at the New York Special Term of the issues arising upon the equitable counterclaim in the second amended answer.</p> <p>The judgment appealed from ordered, among other things, that a lease be reformed nunc pro tunc.</p>

Appeal by the plaintiff, William A. Halbe, from a judgment of the Supreme Court in favor the defendants, entered in the office of the clerk of the county of New York on the 28th day of June, 1916, upon the decision of the court after a trial at the New York Special Term of the issues arising upon the equitable counterclaim in the second amended answer. The judgment appealed from ordered, among other things, that a lease be reformed nunc pro tunc.

Appeal by the defendant, Joseph 0. Scal, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the ,29th day of May, 1916, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 31st day of May, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Louis Orlik and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of December, 1916, requiring plaintiffs to accept service of a fourth amended answer.

<p>Crime — disorderly conduct—public prostitution—constitutional law — Parole Commission Act providing for increased indeterminate sentence where offense is repeated is not unconstitutional — said statute does not deny due process of law — said statute not ex post facto — increased punishment for repeated crimes.</p> <p>Section 4 of chapter 579 of the Laws of 1915 (known as the Parole Commission Act), as amended by chapter 287 of the Laws of 1916, is not unconstitutional in denying due process of law because it allows an increased punishment for an indeterminate period where it appears from the fingerprint records that the defendant has been previously convicted of public prostitution, or other specified disorderly conduct, two or more times during the preceding twenty-four months, etc. This, because said statute in terms provides that the defendant shall have due notice and opportunity to be heard in opposition to the accusation of prior convictions.</p> <p>Said statute is not unconstitutional because it does not define with precision the manner and method of giving the defendant notice and an opportunity to be heard, for due process of law under the Constitution is a matter of substance, not of form, and does not require the adoption of a particular form of proceeding so long as the accused has had a sufficient notice of the accusation and an adequate opportunity to be heard in his own defense.</p> <p>A statute will not be declared unconstitutional because a judicial officer has acted in defiance of it, and the remedy for such denial of statutory rights is by appeal and not by an attack upon the statute itself.</p> <p>The statute aforesaid is not ex post facto and thus unconstitutional because the increased term of imprisonment is imposed upon conviction for a repetition of an earlier offense committed when the statute was not in force. This, because the punishment is not imposed upon the earlier offense, but upon the subsequent repetition of such offense after the enactment of the statute.</p> <p>The constitutionality of statutes providing for indeterminate sentences is no longer open to question in this State.</p>

Appeal by the plaintiff, Erastus W. Seaman, 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 31st day of August, 1915, upon a decision of the court after a trial at the Kings County Special Term.

Certiorari issued out of the Supreme Court and attested on the 29th day of February, 1916, directed to Arthur Woods, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in finding the relator guilty of neglect of duty and fining him.

Appeal by the defendant, Samuel A. Herzog, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of February, 1916, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 8th day of March, 1916, denying appellant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Abraham J. Sumner, 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 18th day of April, 1916, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

<p>Mechanics’ liens — subcontractor’s lien based upon subrogation — departure from specifications by subcontractor with consent of main contractor not binding on owner — foreclosure of mechanic’s lien— failure to state in complaint as to whether another action had been brought not available on appeal — costs.</p> <p>A subcontractor’s lien rests upon the theory of subrogation. As to his part of the work he stands in the main contractor’s shoes.</p> <p>If the subcontractor through the main contractor’s indifference omits things specified by the owner, the latter cannot be affected by the main contractor’s acceptance or waiver. Subcontractors, therefore, should always acquaint themselves with the plans and specifications.</p> <p>Where in a suit by subcontractors to foreclose a mechanic’s lien it appears that they, in reliance upon a waiver of the specifications and an acceptance of a different construction by the main contractor, deviated from the specifications, a judgment in their favor should be modified by deducting for the omissions and changes.</p> <p>The objection that the complaint did not state whether any other action had been brought, as required by section 1629 of theeCode of Civil Procedure, not having been raised in the trial court, where an amendment might have been permitted, is unavailing on appeal.</p> <p>Since no architect supervised the construction and since the plaintiffs were uninformed as to the owner’s specifications, they should be allowed the costs of the action.</p>

Appeal by the defendant, Levy-Gilliland Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of March, 1916, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Edward W. Leonard and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of April, 1916, upon a decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 26th day of June, 1916, dismissing the complaint upon the decision of the court after a trial at the Bronx Special Term.

Appeal by Columbia Trust Company and another, as trustees, and others, 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 16th day of June, 1916, construing the will herein.

<p>Decedent’s estate — devise of realty to wife with remainders over — when life tenant cannot be required to give security — will — provision that executrix shall not be required to give bond.</p> <p>Where a testator gives to his wife a life estate in his realty, with remainders over, she takes by operation of law as of the death of the testator and not as his executrix. Hence, she cannot be required to give a bond for the faithful performance of her duties as life tenant in the absence of a showing of improvidence, waste or extravagance on her part in the management of the real property to the danger of the remainder.</p> <p>It seems, that even in the latter case the Surrogate’s Court is not the proper forum in which to compel her to give security.</p> <p>Moreover, where the testator left to his wife all his personal property for life, with a direction that at her death it should be divided between her children, and expressly provided that she should not be required to give any bond or security as his executrix, she cannot be compelled to do so, if there is nothing to show that the confidence reposed in her by the testator is unjustified.</p>

Appeal by Thomas A. McLoughlin, the petitioner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of January, 1917, vacating an order appointing a referee and directing all persons interested in the respondent to appear before him and show cause why the said corporation should not be dissolved, and dismissing the petition herein.

<p>Appeal by the defendant, Henry C. Sturges, 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 verdict of a jury rendered by direction of the court.</p>

Appeal by the plaintiff, William J. Logan, from an order of the Supreme Court, made at the Kings County Special Term and entered in the… Held: and no subsequent election of directors has occurred; that since said sale of capital stock defendant has been operating with large net revenues, all of which has been paid to the New Jersey corporation; that defendant has sold a large amount of its property and assets, and distributed the proceeds among other stockholders than this…

<p>Appeal by the defendant, Keystone Driller 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 January, 1917, denying defendant’s motion to dismiss the complaint for failure to prosecute.</p>

<p>See head note in Herbst v. Keystone Driller Co. (ante, p. 668).</p>

Appeal by the defendant, International Committee of Young Men’s Christian Associations, from a j udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerkof the county of New York on the 21st day of April, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of April, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph Schweizer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1917, denying appellant’s motion to correct the case on appeal by . inserting an exception to the ruling of the trial judge directing a verdict for the plaintiff.

Appeal by the defendant, The Beau-Site Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of December, 1916, granting plaintiff’s motion for a bill of particulars.

Appeal by the plaintiffs, Interstate Chemical Corporation and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 29th day of February, 1916, dismissing the complaint upon a decision of the court after a trial before the court without a jury.

Appeal by the plaintiff, Harry P. Wendt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of May, 1916, denying his motion for an order directing the sheriff to pay over certain moneys alleged to have been collected on a judgment.

<p>Judgment —res adjudicata—estoppel — evidence — pleading by supplemental reply prior judgment as an estoppel to counterclaim—trade name — fraudulent use thereof — transfer of right to use own name — injunction — inadequate relief.</p> <p>Where a plaintiff does not by supplemental reply plead a decree in a prior action by the defendant as an estoppel as to the issues raised by a counterclaim, said decree is not admissible in evidence as a former adjudication.</p> <p>A judgment in an action is a bar to a re-examination into the facts decided as between the parties thereto or their privies.</p> <p>In a suit to restrain the defendant from interfering with the rights of the plaintiffs in the use of a trade name, a judgment in a prior action by the defendants against the sales agent of the plaintiffs is not res adjudicata, the plaintiffs’ rights not being derived from the sales agent and there not being a mutuality of interest not resting in contract in the subject-matter of the action.</p> <p>The estoppel of former adjudication is an estoppel by record and is to be determined by the relationship of the parties to the action at and prior to the time of the entry of the decree or to their successors in interest thereafter. There is no election in a party not bound by the judgment to assume as a benefit that which he did not assume as a risk.</p> <p>Where, in an action by the L. E. Waterman Company, manufacttirers of fountain pens, against Arthur A. Waterman, a former member of the plaintiff company, and another, who had formed the “A. A. Waterman Pen Company,” for the manufacture and sale of fountain pens, a judgment was entered enjoining the defendants from using any corporate name containing the word “Waterman" on or in connection with fountain pens, but not prohibiting them from indicating that pens made by them were made or prepared or sold for or by Arthur A. Waterman & Company or A. A. Waterman & Company, and thereafter the" plaintiff firm became insolvent and its assets and good will were transferred to a third party, and then Arthur A. Waterman took out another patent or patents and organized a new and distinct concern, • which continued until financial disaster compelled a repetition of the process, the members of a subsequent partnership so formed, in which A. A. Waterman had no substantial interest but to which he had sought to give the right to use his name, are not privies of the original A. A. Waterman Company so as to be entitled to use the copartnership name permitted by the decree of the court in the case of L. E. Waterman & Company against said partnership, and the further use of said name by them should be restrained.</p> <p>It is a fraud upon the person, firm or corporation who has established a trade and carried it on under a given name that some other person should assume the same name, or the same name with a slight alternation, or by advertisement or other device conduct the business in such a way as to induce persons to deal with him in the belief that they are dealing with the person, firm or corporation which has given a reputation to the name. It is dishonesty in the use of the name that is condemned and not the use itself.</p> <p>The transfer to others of the right to use one’s name, with knowledge of the existence of another well-known concern using the name which will be injuriously affected thereby, constitutes fraud if the transferror knows the name is to be used.</p> <p>The sole purpose of Arthur A. Waterman in transferring the right to use his name being to enable the transferee to use it in unfair competition with the L. E. Waterman Company, a judgment providing that pens manufactured by the transferee should be so marked as to make it appear that the firm is “not connected with the L. E. Waterman Company” is inadequate.</p> <p>Where one has built up a good will and reputation for his goods or business, he is entitled to all the benefits therefrom. Such good will is property, and equity will afford relief from its invasion by another by unfair use of the name. No one has a. right to avail himself of another’s favorable reputation in order to sell his own goods. A demand created by advertisement belongs to the advertiser.</p>

Appeal by the plaintiffs, Frank J. Waters and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1917, denying plaintiffs’ motion for an injunction pendente lite.

<p>Appeal by the defendant, Filomena Cipolla, from a judgment of the Supreme Court in favor of the petitioner, entered in the office of the clerk of the county pf Bronx on the 7th day of July, 1916, adjudging condemnation upon the decision of the court after a trial at. the Bronx Special Term.</p>

Appeal by the defendant, Margaret F. Johnson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the • clerk of the county of New York on the 31st day of October, 1916, denying defendant’s motion for judgment on the pleadings.

Appeal by the defendant, Eagle Waist Oo., Inc., from an order of the Supreme Court, as resettled, 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 November, 1916, punishing the defendant for contempt of court.

<p>Appeal by the defendant, Eagle Waist Co., Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1916, granting plaintiffs’ motion for an injunction pendente lite.</p>

<p>Appeal by the defendant, Elias M. Johnson, 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 February, 1917, denying his motion to vacate an order for his examination before trial.</p>

Appeal by the defendant, John Jay McKelvey, 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 February, 1917, denying his motion to vacate an order for his examination before trial.

Appeal by the defendant, Clifford Santer, from an order of the Court of General Sessions of the County of New York, as resettled, dismissing an appeal taken herein from a judgment of conviction by a city magistrate holding a Court of Special Sessions upon the ground that the Court of General Sessions is without jurisdiction to hear said appeal, and that the same lies direct to the Appellate Division. •

<p>Injunction — unfair business competition—imitation of long-established, trade label — adoption of name calculated to deceive purchasing public.</p> <p>Where the plaintiff has produced and marketed a product labeled “Philadelphia Cream Cheese ” for over thirty years it is entitled to an injunction restraining the defendant from using a label, quite similar to that of the plaintiff, marked “ Pennsylvania Cream Cheese,” where it appears that neither the cheese of the plaintiff nor that of the defendant is made in the State of Pennsylvania, so that the names do not indicate the real place of manufacture, and an inspection of the two labels shows that the average customer would be likely to mistake the one for the other even though they are different in some respects.</p> <p>The plaintiff, in order to be entitled to said injunction, is not under the burden of showing that the defendant is not acting in good faith and has an intent to deceive the purchasing public if, in fact, the similarity of the labels would mislead the average purchaser.</p> <p>It seems, moreover, that the plaintiff’s right to an injunction does not depend upon the relative superiority of the two products.</p>

Appeal by the defendants, Louis Schilt and others, from a judgment of the Supreme Oouz’t in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of March, 1916, upon the decision of the court after a trial at the New York Special Term. The judgment was for a deficiency in a foreclosure action.

Appeal by Louis Lese, as administrator, 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 June, 1916, surcharging his account.

Appeals by the plaintiffs in each case, Hortense U. Loeb and Samuel Loeb, from judgments of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 16th day of June, 1916, upon dismissals of the complaints on the opening in each case.

Appeal by the defendant, Pittsburgh Life and Trust Com pany, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 27th day of July, 1916, upon the decision of the court after a trial at the Bronx Special Term. The judgment directed defendant to account and appointed a referee to take and state the said account.

Appeal by the defendant, Interborough Rapid Transit 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 27th day of September, 1916, upon the verdict of a jury for $5,000, later reduced by the court to $2,500, and also

Appeal by the plaintiff, Ooenraad De Waal, from a judg- . ment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d 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 defendant, Joseph Elias, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the-county of New York on the 3d day of March, 1915, upon the report of a referee, and also from an order entered in said clerk’s office on the same day granting plaintiff an extra allowance.

Appeal by the defendant, Hugh N. Camp, Jr., as executor of and trustee under the last will and testament of Frederic E. Camp, deceased, 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 June, 1916, granting plaintiffs’ motion for judgment on the pleadings and overruling appellant’s demurrer to the complaint for insufficiency, but with leave to withdraw the demurrer and to…

<p>Motor vehicles — negligence — injury to pedestrian by chauffeur using car for private purposes — charge—presumption that car is used in owner’s business—rebutting presumption—verdict against weight of evidence—testimony of interested witnesses — appeal — dismissal of complaint by Appellate Division — effect of acquiescence in order setting aside verdict.</p> <p>Where the owner of an automobile, having reached his destination, dismissed the car which was in the charge of his chauffeur and directed him to go home, but the chauffeur while using the car to visit a physician who was treating him ran down and injured the plaintiff, it was proper for the court to instruct the jury that while the law presumes that an automobile is in use for the owner, the presumption may be overcome and that under the evidence it was for the jury to say whether the presumption was overcome by the testimony of the defendant and his chauffeur to the effect that the defendant had dismissed the chauffeur and the car for the remainder of the day prior to the accident.</p> <p>Held, further, that a verdict for the plaintiff based on a finding that the chauffeur was using the automobile in his master’s business at the time of the accident was against the weight of the evidence.</p> <p>Owing to the difficulty of showing ownership of an automobile and responsibility therefor when an accident is caused thereby, the courts, applying and extending a rule of evidence heretofore obtaining with respect to accidents caused by other vehicles, have declared that it is to be presumed that an automobile is owned by the person to whom the license shown by the number was issued and that it was being used in his business, but this presumption may be met and overcome by evidence.</p> <p>The Appellate Division will not dismiss the complaint in such action when the question as to whether the trial court was at liberty to dismiss the complaint on the evidence is not presented by reason of the fact that the defendant acquiesced in an order setting aside the verdict and granting a new trial by not appealing therefrom.</p> <p>It seems, that the testimony of interested witnesses does not, as a matter of law, overcome the presumption that an automobile is being used in the business of the owner.</p> <p>Appeal by the defendant, Jacob J. Dix, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1916, reversing' an order of the Municipal Court of the City of New York, borough of Manhattan, second district, and reinstating a judgment of said Municipal Court in plaintiff’s favor, entered upon the verdict of a jury for §800.</p>

<p>Landlord and tenant—negligence — defective platform leading to basement of apartment house — defective structure within limits of public street — duty of owner — injury to child by hole in platform — erroneous nonsuit.</p> <p>Where a platform and stairway leading to the basement of an apartment house is situated within the boundaries of a public street it is the duty of the owner of the building toward any one having occasion to use the platform or stairway for any lawful purpose to maintain them in a reasonably safe condition.</p> <p>Where in an action to recover for personal injuries it appears that a child of one of the tenants of the apartment house, while playingon the street, ran upon said platform to recover his hat and was injured by falling into a hole in the boards of the platform which had existed for about a year, so as to charge the owner with constructive notice thereof, it was error to dismiss the complaint, for the platform, being within the public street, the plaintiff had a right to go upon it and use it for the purpose of recovering his hat and was not a mere trespasser upon private property.</p> <p>Clarke, P. J., and Scott, J., dissented.</p>

Appeal by the defendant, Columbia Machine Works and Malleable Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of June, 1916, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Charles Eick from so much of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 29th day of June, 1916, as adjudges that the execution of the alleged last will and testament and codicil of Aurelia Fleischmann, deceased, were procured by fraud or undue influence practiced upon the decedent, and that said papers propounded for probate are null and void.

Appeal by the plaintiff, Michael Martin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 21 st day of March, 1916, dismissing the complaint on the merits, upon the decision of the court after a trial at the Orange Special Term.

<p>Will — construction — “ lawful issue ” used as synonymous with children — sale of life estate — suit to partition life estate — parties.</p> <p>A testator gave a life estate to her daughter and directed that after her death the said property should go to “ her lawful issue, share and share alike, and if my said daughter Emma Muell die without issue living, then the said property shall descend to her heirs.”</p> <p>Held, that the testator used the term “lawful issue” as synonymous with children.</p> <p>In an action for partition by one of the two only children of the life tenant to whom she had conveyed her life estate, a child born to the plaintiff during the period intervening the filing of the Us pendens and the j udgment is not a necessary party, because the life estate, which is the only estate involved in the partition suit, is in no way affected by the lawful issue of the life tenant.</p>

Appeal by the defendant, Seymour W. Bonsall, 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 23d day of October, 1916, denying his motion for judgment on the pleadings, consisting of a complaint and amended answer.

Appeal by the defendants, James M. Carter and others, 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 9th day of October, 1916, directing the issuance of a peremptory writ of mandamus commanding the defendants to reconsider the application of the relator for a parole and to count as part of his minimum sentence of two years the time when he was actually confined in the Tombs…

Cross-appeals by the plaintiff, Charles A. Moran, as trustee, and by the defendant, G-ifford Pinchot, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1916, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, John W. McAuliffe, 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 26 th day of July, 1916, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case.

<p>Appeal by the plaintiff, Annie Goldstein, 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 25th day of May, 1915, setting aside the verdict of a jury in plaintiff’s favor and granting defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, George J. Gould and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1916, vacating an attachment against the property of the defendant.

<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, Sugar Products Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of September, 1916, denying its motion for judgment on the pleadings, consisting of a complaint and answer.

Appeal by the plaintiff, Edmund F. Harding, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of May, 1916, denying plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, Jewish World Publishing 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 29th day of December, 1916, denying its motion to vacate an order for the examination of William B. Leaf, its secretary, before trial.

Appeal by the defendant, The Security Bank 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 22d day of May, 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 26th day of May, 1916, denying the defendant’s motion for a new trial made upon the minutes.

<p>Cross-appeals by the Comptroller of the State of New York and Charles N. Harris and another, as executors and trustees, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 12th day of July, 1916, affirming an order of said Surrogate’s Court fixing a transfer tax herein upon the report of an appraiser.</p>

Appeal by the defendant, Terry & Tench Company, Inc., from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of June, 1916, affirming a judgment of the Municipal Court of the City of New York, ninth district, borough of Manhattan, awarding plaintiff damages in the sjim of $297.

<p>Pleading—practice—motion to strikeout entire defense improper — motion to strike out several allegations in a defense—libel —sufficiency of allegations in justification and as a partial defense in miti-' gation of damages — relevancy — allegation as to writing of prior articles tending to prove truth of alleged libelous article.</p> <p>The rule that it is not the practice to entertain a motion to strike out an entire defense should be limited to cases within the reason of the rule, which is that the prescribed and orderly and scientific manner of testing the sufficiency of a defense is by demurrer.</p> <p>Hence, a motion to strike out all of the allegations in a defense on the ground that they are insufficient to constitute a defense should be denied.</p> <p>Where, however, the motion is to strike out the several allegations contained in a defense on the ground that they are either irrelevant or redundant or scandalous, the mere fact that it happens that every allegation set forth in an alleged defense is either irrelevant or redundant or scandalous should not prevent the injured party from having them stricken out, especially where it appears that some of the allegations are relevant and some are irrelevant.</p> <p>In an action by a dramatic critic to recover damages for the-publication of an article attacking him in his calling, the defendant pleaded the writing and publication by the plaintiff of other articles in justification and as a partial defense in mitigation of damages. Provisions of the answer examined on a motion to strike out allegations thereof, and held, that some of them should be stricken out.</p> <p>Denials of malice, falsity and damage, together with a repetition of certain admissions are not necessary to make complete the defense of confession and avoidance, and should be stricken out.</p> <p>A matter which tends to prove that a part of the libelous article complained of is true is relevant, for it establishes a partial justification.</p> <p>A plaintiff in an action for libel is not limited by his innuendo, but may fall back upon the natural meaning of the words complained of.</p> <p>An allegation that the plaintiff wrote a certain article several years before the publication of the alleged libelous article tending to prove that the latter is true, is relevant, though remote in time.</p>

Appeal by the defendant, Daniel H. Steele, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1916, granting plaintiff’s motion for judgment on the pleadings.

<p>Principal and agent — action for wrongful discharge under contract for services involving fancy, taste and judgment — reason for discharge — rule that employer must not be arbitrary nor unreasonable in his dissatisfaction not applicable — when comment on such rule before jury prejudicial error.</p> <p>Action for wrongful discharge under a contract by which the plaintiff was employed for one year as a designer and maker of ladies’ skirts. The contract provided: “The party of the second part [plaintiff] hereby agrees to give his entire time to designing and the making of new styles and to serve them [defendant] diligently and faithfully according to the best of his ability, and also to their entire satisfaction, of which satisfaction, parties of the first part [defendant] shall be the sole judges.” The defendant alleged that the ground of the discharge was its dissatisfaction with plaintiff’s services, but the plaintiff testified that the ground assigned was necessity for economy.</p> <p>Held, that in such a case the question whether the fancy, taste or judgment of the employer is arbitrary or unreasonable does not arise, the question being whether the claimed dissatisfaction was feigned or genuine;</p> <p>That the evidence concerning the issue being very close, it was prejudicial error for the court to import the element of reasonableness in the discussion of a motion to dismiss, and later in his instruction to the jury. In actions for alleged wrongful discharge arising upon contracts for services involving fancy, taste and judgment, when the employer introduces evidence that he was dissatisfied and discharged the employee for that cause, and the employee introduces evidence which, if believed, shows that the assigned cause was feigned, an issue of fact arises as to whether the cause of discharge was as claimed by the employer.</p>

Appeal by the defendants, Edward V. Gambier 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 22d day of April, 1916, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendants from a judgment of the Supreme Court, entered in the Erie county clerk’s office on the 11th day of April, 1916, in favor of the plaintiff and against the defendants for $3,379.46 damages and costs, upon the verdict of a jury rendered by direction of the court; also from an order denying defendants’ motion for a new trial, entered in said clerk’s office on the same day.

<p>Appeal from an order entered in the Monroe county clerk’s office on the 22d day of May, 1916.</p> <p>Order affirmed, with ten dollars costs and disbursements. All concurred, except Foote, J., who dissented, in a memorandum.</p>

Motion to vacate an order of this court, entered on the 22d of December, 1916, dismissing respondent’s motion for an order dismissing the appeal from the interlocutory judgment herein.

<p>Appeal from an order denying the defendant’s motion to strike out certain allegations in the complaint as irrelevant and redundant.</p>

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

<p>Appeal from so much of an order as denies a motion for an order striking out certain allegations of the complaint.</p>

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

<p>Appeal from an order denying the defendant’s motion to set aside the service of the summons and complaint.</p>

<p>Practice — decision—stating separately findings of fact and conclusions of law.</p>

<p>Appeal by The Adams Express Company from an award of the State Industrial Commission, made on the 10th day of April, 1916.</p> <p>Award affirmed. All concurred, except Lyon, J., who voted in opinion for reversal and to remit the matter to the Commission for a finding as to whether the injury caused the death.</p>

<p>Appeal from an award of the State Industrial Commission, made on the 31st day of May, 1916.</p> <p>Award" affirmed. All concurred, except Lyon, J., who dissented in memorandum, in which Cochrane, J., concurred.</p>

<p>Appeal from an order, entered in Onondaga county clerk’s office February 8, 1916, granting defendant’s motion for a direction of a verdict upon the issues herein and dismissing the complaint, and also from a judgment entered on the same day upon such order.</p> <p>Order and judgment affirmed, with costs, on the opinion of Smith, P. J., in Rakov v. Bankers Life Ins. Co. (164 App. Div. 645). All concurred, except Howard, J., who dissented in opinion, in which Woodward, J., concurred. Kellogg, P. J., and Lyon, J., also voted to reverse the findings of fact on the ground that they were against the weight of the evidence, upon the opinion of Kellogg, J., upon the former appeal.</p>

Appeal by the defendants from orders 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 27th day of July, 1916, denying the defendants’ motions for judgment on the pleadings and granting a similar motion by the plaintiff in each case, and also from the judgments entered in said clerk’s office on the same day pursuant to said orders.

Appeal by the Locomobile Company of America from an order of the Special Term, entered in the office of the clerk of the county of Westchester on the 29th day of May, 1916.

Judgment and order reversed and new trial granted, with costs to the appellant to abide the event. Held: 1. Held: The court charged, and the parties acquiesced therein, that the plaintiff, at the time of the injury which is the subject of complaint, occupied the position of an employee. (Vick v. N.Y.C.& H. R. R. R. Co., 95 N. Y. 267; Vroom v. N. Y. C. & H. R. R. R. Co., 129 App.

<p>Municipal corporation — county — liability for acts of treasurer and supervisors—right to recover from town moneys erroneously paid to it.</p>