Volume 177 — New York Appellate Division Reports

<p>Crime — obtaining money under false pretenses — conspiracy — sufficiency of indictment — allegation fixing second or subsequent date on which crime was committed — allegation of continuing conspiracy — extradition—habeas corpus.</p> <p>A defendant was indicted in the State of New Jersey on six counts, five counts charging him and his alleged confederates with obtaining money under false pretenses on the 9th day of June and the 12th day of July, 1913. The sixth count alleged that the co-conspirators “ on or about the first day of January in the year of our Lord one thousand nine hundred and thirteen and on divers other days between that day and the day of the taking of this Inquisition at the City of Atlantic City,” etc., conspired to defraud persons by means of worthless letters of credit and checks.</p> <p>The allegation in the sixth count that the acts in pursuance of the conspiracy continued down to “the day of the taking of this Inquisition ” fixes a definite time for the second date referred to in the indictment and does not merely allege a crime on January first.</p> <p>The allegation in the same count of the commission of the crime on a day stated “and on divers other days,” when the second date is fixed, is a sufficient allegation of a continuing conspiracy.</p> <p>Under the circumstances, the defendant was a fugitive from justice within the meaning of the extradition law, for his presence in the State was not under conditions establishing the impossibility of his participation in the conspiracy, and an application for a writ of habeas corpus should be denied.</p>

Appeal by the defendant, Charles Schwartz, from judgments of the Court of Special Sessions of the City of New York, entered in the office of the clerk of said court on the 17th and 24th days of July, 1916, convicting defendant of the misdemeanor of unlawfully possessing a drug and committing him.

Appeal by the defendant, Bronx Parkway Commission, 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 16th. day of February, 1917, denying defendant’s motion to strike this case from the Special Term calendar and for a jury trial.

Appeal by the defendant, the State of New York, from an order and determination of the Board of Claims in favor of the claimant, entered in the office of the clerk of said board on the 22d day of April, 1915.

<p>Appeal by the plaintiff, Mabel E. Russell, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 14th day of May, 1914, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Tax—franchise tax—computation of value of common stock—market value not controlling—presumption that assessment is not erroneous.</p> <p>The provisions of the Tax Law relating to the assessment of a franchise tax, which make the actual value of common stock the basis for the computation of the tax, except that the value cannot be fixed at less than the average sales price for the year, merely sets the minimum limit of valuation and does not fix the maximum limit, which is to be determined by the actual value of the stock.</p> <p>Hence, where the officers of a corporation have testified that the property of the company is equal in value to its indebtedness, including the par value of its preferred and common stock, it is proper to take the common stock at its par value in assessing a franchise tax although, in fact, the average sales price of the common stock was between fourteen dollars and fifteen dollars per share.</p> <p>In reviewing the determination of the assessing officers all reasonable intendments are in favor of the assessments, and the party alleging error must point it out.</p>

Appeal by the defendants, John Lighthall and another, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 11th day of December, 1916, restraining the defendant Lighthall from trafficking in liquors and commanding the appellants to deliver certain liquor tax certificates to the clerk of the court to be held and impounded by said clerk.

Appeal by the defendants, The Gotham Can Company and another, from an award of the State Industrial Commission, filed in the New York city office of said Commission on the 8th day of June, 1916.

<p>Workmen’s Compensation Law — closing of case before determination with reasonable definiteness of final result of injury —right of employer and insurance carrier to further hearing — Compensation Law, section 20, construed.</p> <p>Where, in a proceeding before the State Industrial Commission to obtain an award for injuries to the eye of a claimant it appears that the condition of the eye will continue to improve, but will probably never be better than</p> <p>30/70 or 30/50 and this will not be reached under one to three years; that the final result of the injury is uncertain, and that the first hearing was held in April and the fourth hearing in September of the same year, at which the case was closed, in disregard of the protest of the employer and insurance carrier, the case should be remitted to the Commission and such further hearings had as may be necessary in order to determine the final result of the injury with reasonable definiteness.</p> <p>Section 30 of the Workmen’s Compensation Law, under which either party upon application is entitled to a hearing, is not complied with by the giving of one or more hearings, when additional hearings are necessary for the proper determination of the claim.</p> <p>The question as to whether a proceeding should be continued or closed is one involving not only the exercise of discretion, but also a substantial right, the denial of which is prejudicial.</p>

<p>Appeal by the defendants, T. Hogan & Sons, Inc., and another, - from an award of the State Industrial Commission, entered in the Hew York city office of said Commission on the 22d day of June, 1916, and also from an order made on the 30th day of October, 1916, denying defendants’ motion to reopen the case to receive further evidence.</p>

Appeal by the defendants, The Hartwood Club and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 17th day of July, 1916.

<p>Appeal by the plaintiffs, Simon H. Myers and another, and by Van Yoast and Leonard, Incorporated, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 8th day of December, 1916, granting respondent’s motion to interplead the appellant, Yan Yoast and Leonard, Incorporated, as a party defendant.</p>

<p>Appeal by the plaintiff, Joseph Furanz, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Saratoga on the 14th day of June, 1916, denying his motion for judgment on the pleadings consisting of a complaint and answer.</p>

<p>Appeal by the defendants, Kennedy Manufacturing and Engineering Company and another, from an award of the State Industrial Commission, made on the 25th day of May, 1916.</p>

<p>Workmen’s Compensation Law—determination of average weekly-wages of employee — when tips may be considered.</p> <p>Tips received by a driver employed by a taxicab company may be considered in determining his average weekly wages, where it appears that they were so considered by both the employer and employee when the contract of employment was made.</p>

<p>Villages — proceeding for the discontinuance of a street — use of old ■ street until establishment of new one.</p> <p>An order made by a board of trustees of a village under section 145 et seq. of the Village Law, that a certain street be closed or discontinued, and that a new street be built before traffic is abandoned on the old street, should be construed to mean that the old street will remain a public highway until the new street is established, and should be confirmed, where the new street furnishes an ample way for a chemical company which now uses the old street as the only means of ingress and egress to and from its plant.</p>

<p>Will — contract — agreement to make mutual wills — breach of contract by subsequent will making other disposition of property — when contract creates valid claim against estate — when executor of last will is not personally liable for breach of contract by testatrix — when costs should not be imposed upon executor—accounting, when Sur rogate’s Court is proper tribunal.</p> <p>Action in the Supreme Court brought against an executor of a will duly admitted to probate to establish a claim against the estate founded upon a contract between the plaintiff and the testatrix, her sister, to make mutual wills for the sole benefit of each other, in consideration of the plaintiff’s agreement to provide a home for the testatrix so long as they both should Uve. It appeared that the testatrix, having undergone an operation at a hospital, went to live with the plaintiff who made suitable alterations in her home to accommodate the testatrix and that both parties actually drew and executed nlutual wills in which each made the other her sole beneficiary. The agreement to make mutual wills was also established by oral testimony; but the testatrix, being obliged to return to the hospital where she died, made a subsequent will leaving the bulk of her property to the defendant, her nephew, whom she also appointed her executor. Evidence examined, and held, to justify a finding that the testatrix had contracted to leave her property to the plaintiff for a valuable consideration, and that the plaintiff, having executed the contract on her part, had a valid claim against her sister’s estate for the amount thereof, less the costs of administration and the payment of the debts and funeral expenses.</p> <p>The contract to make mutual wills was none the less enforeible because defendant’s testatrix shortly after the contract was made was obliged to leave the plaintiff’s house and return to the hospital, where she died.</p> <p>In such action in the Supreme Court it is not necessary that the legatees under the last will of the decedent should be made parties defendant, as their interests are represented by the defendant executor, so that they will be bound by the judgment against him.</p> <p>However, where the action was not brought against the executor individually, but solely in his representative capacity, it was error to entelan individual judgment against him.</p> <p>Moreover, the suit being in equity and the costs discretionary, the court should not impose costs against the executor where there is no suggestion of any fraud or unfairness on his part and he merely defended through his duty to protect the estate, and this is true although he was the residuary and chief legatee.</p> <p>Although the complaint in such action in the Supreme Court asks for an accounting, it should be had in the Surrogate’s Court where the will was admitted to probate, and where due notice can be given to interested parties.</p>

<p>Workmen’s Compensation Law — death of employee while too intoxicated to perform duties — death of employee when not acting in line of duty — right of employee leaving work to reach public highway.</p> <p>Where a person who was employed on a floating derrick to assist divers who were carrying on an excavation under water, and who was required to be on duty from four o’clock in the afternoon until midnight, reported for work in such a state of intoxication that the diver whom he attended refused to permit him to do so, and being still incapacitated for his duties went ashore in a rowboat furnished by his employer for the use of workmen a half hour before his hours of labor had terminated, and being landed on a scaffold, fell therefrom and was drowned, his dependents are not entitled to an award under the Workmen’s Compensation Law. This, because, irrespective of the decedent’s intoxication, he was not at the time of his death engaged in the performance of any duty which he owed to his employer.</p> <p>It seems, however, that as a general principle an employee on quitting work for the day is entitled to a reasonable opportunity to leave his employer’s plant and place himself upon a public highway, and that if injured before reaching such highway he is covered by the Workmen’s Compensation Law, provided he uses reasonable speed in leaving the place of his employment.</p>

Appeal by the defendants, Island Paper Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 3d day of November, 1915, and also from an award and decision of said Commission entered in the office of said Commission on the 14th day of September, 1916, denying the application of the appellants to reopen and modify the original award herein.

Appeal by Frances H. Stoddard, as administratrix, and another, from a decree of the Surrogate’s Court of Warren county, entered in the office of said Surrogate’s Court on the 9th day of November, 1916.

<p>Will — contingent estate — gift of income from trust fund to son for life with remainder to grandson — effect of death of grandson prior to his father.</p> <p>. Provisions of a will under which the testator gave his sons the income from a trust fund during their lives, examined, and held, that the gift ' to a grandson was contingent upon his surviving his father, and if it vested at all before the death of the testator’s son it was divested upon the death of the grandson prior to the death of his father.</p>

Appeals by the plaintiff in each action from judgments of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 16th day of May, 1916, upon the dismissal of the complaints by direction of the court at the close of plaintiff’s case. The actions were tried together.

Appeal by the defendant, Amelle F. Chittenden, 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 1st day of June, 1916, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 6th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Sun Printing and Publishing Association, 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 May, 1916, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes. The action is for libel.

<p>Mortgage — foreclosure -r right of one who has paid first mortgage to subrogation as against holder of second mortgage —County Court — jurisdiction—appeal — when plaintiff not allowed to dispute validity of method by which decision was reached.</p> <p>Where a woman advanced in age at the request of her nephew, an owner of land, paid a first mortgage thereon and took the same with a satisfaction which she filed and also took a new mortgage given her by her nephew with a representation that it was the first lien, she is entitled to be subrogated to a second mortgage.</p> <p>Where in an action by the owners of the second mortgage to foreclose the same the holder of the new mortgage appears by attorney but does not answer and at the sale appears with another attorney and forbade it, the proceeds being insufficient to satisfy the liens, and a motion to set aside the sale is denied, but the owner of the new mortgage is allowed by answer to raise the question of subrogation, the County Court, in view of section 348 of the Code of Civil Procedure has jurisdiction to try the issue.</p> <p>The plaintiff’s attorney, having consented to the decision of the court denying the motion to set aside the sale allowing subrogation and awarding the proceeds of the sale to the holder of the new mortgage may not dispute the validity of the method by which the decision was reached.</p>

Appeal by the defendant, Peter Econopouly, from an order of the county judge of Kings county, entered in the office of the clerk of said county on the 27th day of October, 1916, adjudging the appellant guilty of contempt of court, and punishing him by a fine of $250 and $30 costs.

<p>Incompetent person—proceeding for appointment of committee for alleged incompetent — petition denied.</p> <p>Although an aged woman may be found incompetent within the purview of section 2320 of the Code of Civil Procedure, the appointment of a committee of her person and property is not justified if her present situation and surroundings assure to her security of fortune, health of body, and happiness of mind.</p> <p>Proceeding for the appointment of a committee of the person and property of an aged woman of considerable wealth, brought by a grandson who had no legal interest in her estate, his mother being the apparent sole heir and next of kin. Evidence examined, and held, that as no waste or dissipation of the estate was shown and as the property of the alleged incompetent is being properly devoted to her care and maintenance by her relatives, the petition should be denied.</p>

Appeal by the defendant, Richard Major, Jr., from part of a judgment of the Supreme Court in favor of the plaintiff and certain, of the defendants, entered in the office of the clerk of the county of Kings on the 2d day of June, 1916, upon the decision of the court after a trial at the Kings County Special Term with notice of an intention to bring up for review parts of an interlocutory judgment entered in said clerk’s office on the 15th day of December, 1915.

<p>Workmen’s Compensation Law — death of a street car conductor while returning to work — injury not arising out of and in the course of employment — limitation of presumption that claim is within the statute.</p> <p>A person employed as a conductor on a street surface railroad who, while • returning to report for duty twelve minutes ahead of time, was struck and killed "by a car of his employer when he alighted from another car on which he was returning to his work, was not at the time engaged in a hazardous employment and his dependents are not entitled to an award under the Workmen’s Compensation Law.</p> <p>Although his employment as a conductor on a street surface railroad was a hazardous employment within the statute, at the time of his death he occupied the position of an ordinary citizen using his employer’s cars, and under the statute to justify an award the injury must arise out of and in the course of the employment.</p> <p>While, under the statute, it is to be presumed that a case is within the law in the absence of evidence to the contrary, the presumption does not obtain where the evidence shows that the accident occurred outside of the employment.</p>

Appeal by the defendants, William Preston and others, from an award of the State Industrial Commission, entered in the office of said Commission on the 11th day of September, 1916.

Appeal by the defendant, Joel L. Keator, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Delaware on the 20th day of August, 1915, overruling his demurrer to the complaint, and also from the interlocutory judgment entered thereon.

Appeal by the plaintiff, Leman M. Judd, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 15th day of November, 1915, dismissing the complaint upon the merits after a trial at the Broome Trial and Special Term before the court without a jury.

<p>Workmen’s Compensation Law—right of illegitimate children to benefits of statute — statutes — rules of construction.</p> <p>Illegitimate children of a deceased employee are not entitled to the benefits provided by the Workmen’s Compensation Law for dependent children, even though the mother married the decedent without knowledge of his having a wife living and undivorced.</p> <p>The word “child” or “children” when used in a statute, will or deed, means, prima facie, legitimate child or children.</p> <p>Words having a precise and well-settled meaning in the jurisprudence of a country have the same sense in its statutes unless a different meaning is plainly intended.</p> <p>Unlawful or illegitimate children are not favored in the law; they have only such property rights as are expressly granted by statute.</p> <p>Subdivision 11 of section 3 of the Workmen’s Compensation Law, declaring that “ ‘ child ’ shall include a posthumous child and a child legally adopted prior to the injury of the employee," must be understood to have excluded illegitimate children.</p> <p>Lyon, J., dissented in part.</p>

Appeal by Addison J. Cushman, individually and as executor, and others from part of a decree of the Surrogate’s Court of the county of Madison, entered in the office of said Surrogate’s Court on the 24th day of July, 1916, allowing the claim of the respondent in the sum of $10,000.

Appeal by the defendant, Delaware, Lackawanna and Western Railroad Company, from a judgment of the County Court of Cortland county in favor of the plaintiff, entered in the office of the clerk of said county on the 23d day of May, 1916, upon the verdict of a jury for $387.85, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward Gr. Wyckoff, from an order and interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 23d day of February, 1916, sustaining a demurrer to the complaint upon the decision of the court after a trial at the Broome Special Term, and also from the final judgment entered in said clerk’s office on the 15th day of March, 1916, dismissing the complaint pursuant to the…

Appeal by the defendants, David Horsley and others, from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of June, 1916, denying the appellants’ separate motions for judgment on the pleadings, consisting of an amended complaint and amended answers thereto.

Appeal by The People of the State of New York from an order of the Criminal Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 5th day of July, 1916, sustaining a writ of habeas corpus and dismissing an indictment against the relator, filed in the Court of General Sessions of the Peace in and for the County of Mew York and discharging the relator from custody.

Appeal by the defendants, Herbert A. Weeks 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 11th day of September, 1916, granting plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the plaintiff, Joseph Kaufman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of July, 1916, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.</p>

<p>Appeal by the defendant, Isidor Oliver, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1916, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 31st day of May, 1916, denying the appellant’s motion for a new trial made upon the minutes. Appeal by the plaintiff, James P. McGovern, as administrator, from a judgment of the Supreme Court in favor of the defendant Dorothy Oliver entered in the office of the clerk of the county of New York on the 26th day of May, 1916, upon the verdict of a jury.</p>

<p>Insurance — action at law on life insurance policy—change of beneficiary — assignment of policy — pendency of action by assignee — evidence—suit in equity — assignee holding policy a necessary party.</p> <p>In an action at law the plaintiff, the wife of the insured and originally designated as beneficiary, alleged that she was the beneficiary designated in the policy; that no other beneficiary had been designated in a manner provided by the policy; that her husband “ for a good and valuable consideration duly gave and delivered ” the policy to her, and that the defendant is now liable for the amount due. The defendant put in issue the allegations as to the gift to the plaintiff and with respect to there not having been a lawful change of the beneficiary, and alleged that the beneficiary was duly changed from the plaintiff to his estate, and that thereupon all the rights of the plaintiff ceased and terminated; and further alleged assignments of the policy and the payment of the premiums by the first assignee, and that a second assignee holds the policy claiming to be the rightful owner and to be entitled to all amounts due thereunder. The defendant also pleaded a defect of parties, in that neither the executor, administrator nor assignee of the insured had been joined, and the pendency of an action brought by the second assignee in another State on the same policy. The defendant proved the above allegations.</p> <p>Held, on all the evidence, that the plaintiff failed to establish a clear legal right to recover on the policy, and that the complaint should be dismissed.</p> <p>If the action were in equity' it would be the duty of the court to refrain from proceeding to judgment until the second assignee, who holds and claims to own the policy, is brought in as a party.</p> <p>The plaintiff by having been originally designated as beneficiary, obtained no vested right, for the policy authorized the insured to change the beneficiary.</p>

Appeal by the defendant, Carnegie Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of November, 1916. An appeal is also taken from an order entered in said clerk’s office on the 2d day of November, 1916, granting plaintiff’s motion for judgment on the pleadings, pursuant to which the judgment appealed from was entered.

<p>Appeal by the petitioner, George T. Donlin, as trustee, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 27th day of July, 1916, denying his motion to discontinue this proceeding, and also from a decree entered in the office of- the clerk of said court on the 27th day of July, 1916, construing the will herein.</p>

Appeal by the plaintiff, Benjamin Kantrowitz, 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 16th day of June, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, Kings county, entered in the office of the clerk of said court on the 11th day of January, 1916, granting a motion in arrest of judgment.

Appeal by the defendants, A. Paul Keith, as executor, 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 23d day of December, 1916, granting plaintiff’s motion for an injunction pendente lite restraining the appellants from opening and operating the Riverside Theatre as a vaudeville theatre and granting further relief.

Certiorari issued out of the Supreme Court and attested, on the 18th day of December, 1915, directed to The Public Service Commission of the State of New York for the Second District and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in directing the relators to make such switch or track- connections as shall be necessary to establish adequate and convenient interchange of freight…

Appeal by the defendants, Walter P. Smith and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 6th day of April, 1916, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, John E. Scudder, from a' judgment of the County Court of Delaware county, rendered against him on the 26th day of June, 1916, convicting him of the crime of grand larceny in the first degree.

<p>Landlord and tenant — oral lease for one year — subsequent lease to other persons —evidence — proof justifying finding that binding oral lease was made—failure to reduce oral agreement to writing.</p> <p>Action by the plaintiff, claiming to be tenant of a moving picture theatre under an oral lease for one year, brought against the defendant to which the owner of the building subsequently leased the premises by a written instrument. It appeared that the president and also the secretary and treasurer of the owner of the theatre, a domestic corporation, having given the plaintiff an oral option to lease the premises, assured him that a writing was unnecessary and that he could have the premises for a certain rental to be paid in advance in the condition they then stood. Thereafter and within the time get, the plaintiff accepted the oral option and paid ten dollars earnest money in order to bind the bargain, for which the defendant’s officers gave him a written receipt stating that the money was to apply on the lease of the theatre property. It further-appeared that after the plaintiff had made the part payment on the rent the owner’s officers stated to him that the theatre was his and that he could do with it as he saw fit. On all the evidence,</p> <p>Held, that it was error to dismiss the complaint in that the jury were authorized to find that the officers of the corporation were acting within the apparent scope of their authority, and because the jury were also authorized to find that a valid oral lease had been given to the plaintiff ' prior to the written lease given to the defendant.</p> <p>Held, further, that the jury might find that all the terms of the oral lease were agreed upon and that nothing more was to be done except to reduce them to writing and that the plaintiff had, in fact, been put into possession under the oral lease.</p> <p>The fact that the terms of the oral lease were subsequently to be reduced to writing is immaterial, for where all the conditions of a yearly letting are agreed upon orally, the failure to execute a written lease, though one is contemplated by the parties, does not permit a cancellatiomof the contract.</p>

Appeal by the plaintiff, Joseph H. Remmey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 17th day of April, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>¡Negligence — action to recover for personal injuries—effect of failure to object to admission of evidence—earning capacity of plaintiff— evidence raising questions for jury — erroneous charge — earnings of plaintiff as manager of restaurant —verdict founded upon speculation.</p> <p>It is immaterial whether the complaint in an action to recover for personal injuries was sufficient to justify the admission of evidence that the plaintiff was a married woman and was engaged in business on her own account if no objection was made to such evidence at the trial.</p> <p>Evidence in such action examined, and held, that the alleged negligence of the defendant and plaintiff’s contributory negligence were sufficiently established to present questions of fact for the jury.</p> <p>But where the plaintiff seeks to recover damages for her inability to continue to run a restaurant of which she was owner and manager, there being no proof whatever as to her earnings in such business, it was reversible error to charge in substance that the jury may determine the damages in this respect because the kind of work is a matter within common knowledge. The value of the services of the plaintiff in her business is not a matter of common knowledge, and the finding of the jury in that respect would be pure speculation.</p>

Appeal by the defendant, Nellie J. Schwab, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of April, 1913, upon the decision of the court after a trial at the Kings County Special Term. Judgment affirmed, without costs, upon the opinion of Mr. Justice Crane at Special Term.

<p>Husband and wife — divorce — enforcement in this State of foreign decree for payment of alimony - - validity of agreement by wife releasing husband from liability under foreign decree —such agreement by minor son invalid — apportionment of alimony between wife and minor son.</p> <p>A wife is entitled to maintain an action in this State for the enforcement of the payment of alimony under a foreign decree of divorce.</p> <p>Unpaid alimony under a foreign decree of divorce is treated as a judicial debt for which the courts of this State will give a pecuniary judgment.</p> <p>An agreement by a husband to pay a certain sum in prcesenti to his wife in consideration of a release by her of his liability to pay alimony under a foreign decree of divorce does not “relieve the husband from his liability to support his wife,” within the meaning of section 51 of the Domestic Relations Law, and will be upheld where the provision is adequate.</p> <p>If, however, such provision is inadequate or has been accepted by the wife unadvisedly or imprudently, a- court of equity has power to intervene,</p> <p>A minor son cannot legally enter into a contract excusing a husband from paying alimony awarded under a foreign decree to the wife and son.</p> <p>Where a wife has thus voluntarily released her personal rights under a foreign decree of divorce she is not entitled to demand its enforcement for her individual benefit.</p> <p>Where a foreign decree of divorce awards alimony to be paid monthly for the support both of the plaintiff and her son, and the decree and record make no apportionment, that issue cannot be decided in an action by the wife in this State to enforce payment, but must be relegated to the foreign tribunal.</p>

Appeal by the defendant, Obermeyer & Liebmann, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 4th day of March, 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, and also from an order entered in said clerk’s office on the 3d day of March, 19,16, denying defendant’s motion for a new trial made…

<p>Appeal by the plaintiff, Max Phillips, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 28th day of July, 1916, upon the decision of the court after a trial at the Queens County Special Term. (See 175 App. Div. 949; 177 id. 930.)</p> <p>Judgment affirmed, with costs, on the opinion of Mr. Justice Blaokmar at Special Term.</p>

Appeal by the defendant, The New York, New Haven and Hartford Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of June, 1916, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 14th day of July, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Buffalo Oarey Company and others, from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Chautauqua on the 17th day of March, 1916, as decrees that the defendant State Bank of Mayville recover the sum of $5,000 and interest' herein; that after the payment of the plaintiffs’ claim there shall next be paid said sum of $5,000 and interest to the defendant State Bank of Mayville,…

<p>Executors and administrators — jurisdiction of surrogate to revoke limited letters of administration — letters revoked because of false statement in application and for false testimony given before the surrogate — appointment of administrator.</p> <p>Where one claiming to he the wife of a decedent sought limited letters of administration under former section 2664 of the Code of Civil Procedure, in order that she might be relieved from giving the ordinary security for the faithful performance of her duties, and on such application falsely stated that the decedent left him surviving no next of kin, and also on a hearing before the surrogate gave willful false testimony as to the death of an alleged husband, the surrogate should revoke such letters under sections 3569-3571 of the Code pf Civil Procedure.</p> <p>Under the circumstances, the petitioner for the revocation of the letters, who is the general guardian of the infant children of the decedent, should not be appointed in the place of the alleged wife, but an administrator should be appointed who will act impartially.</p>

<p>Appeal by the plaintiff, James S. Gunn, from a judgment of the Supreme Court in favor' of the defendant, entered in the office of the clerk of the county of Erie on the 20th day of March, 1916, upon a dismissal of the complaint by direction of the court at the close of the case.</p> <p>The decision of the motion was reserved pending the submission of the case to the jury, which brought in a verdict for plaintiff in the sum of $3,000. An appeal is also taken from an order entered in said clerk’s office on the 20th day of March, 1916, dismissing the complaint upon the merits and setting aside the verdict of the jury.</p>

Motion by the defendant, Erie Railroad Company, for a reargument or for leave to appeal to the Court of Appeals in the matter of an appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 31st day of January, 1916, upon the verdict of a jury for $25,000, and also of an order entered in said clerk’s office on the 7th day of February, 1916, denying defendant’s motion for a new trial made upon the…

Appeal by the plaintiff, Concettina Macri, 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 13th day of May, 1916, dismissing the complaint upon the merits, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Costrenze Vivirito, 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 23d day of June, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Clarence H. Venner, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 18th day of May, 1916, upon the decision of the court dismissing the complaint on the merits after a trial at the Westchester Special Term, and also from an order entered in said clerk’s office on the 15th day of May, 1916, granting the defendants an extra allowance of $2,000.

Cross-appeals by the plaintiff, Young Men’s Lyceum of Tarrytown, and the defendant, National Ben Franklin Fire Insurance Company of Pittsburgh, Pa., from parts of 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 23d day of June, 1916, upon the verdict of a jury rendered by direction of the court, and also an appeal by the defendant from an order entered in said clerk’s office on the 8th day of…

<p>Appeal by the ¡New York Central and Hudson River Rail-, road Company from a resolution adopted by the common council of the city of Rochester on the 22d day of June, 1915, confirming the report of commissioners appointed to assess the damages in a proceeding to discontinue part of a street, which resolution was filed in the office of the clerk of the city of Rochester on the same day, and a certified copy of which was filed in the office of the clerk of the county of Monroe on the 16th day of July, 1915.</p> <p>Motion by the respondents Mary C. Kosterer and others to dismiss the appeal made at the March term, 1916, and postponed to be heard in connection with this appeal.</p> <p>Motion by the respondents Elizabeth Houston and others for leave to present to this court and have considered by it on the argument of this appeal, original records in the Monroe county clerk’s office alleged to show more fully than now appears in the printed papers, the existence of a private easement appurtenant to their respective lots for egress southward to Central avenue through the portion of Joiner street which has been closed, postponed by order of this court to be heard in connection with this appeal.</p>

<p>Workmen’s Compensation Law—when findings of Commission not reviewable— “previous disability” as used in subdivision 6 of section 15.</p> <p>Where no exception has been taken by either the employer or insurance carrier to a finding by the Commission as to the injury sustained by the claimant, resulting in the loss of eighty per cent of the vision of his left eye, and as to the award made, and the insurance carrier agreed at the hearing to make payment of the award, the correctness of the award is not before the court for review.</p> <p>Where the testimony as to the cause of blindness in the right eye was conflicting and disproved the existence of any condition disabling the claimant from working prior to the time of receiving the injuries complained of, the question whether-the expression “previous disability,” as used in subdivision 6 of section 15 of the Workmen’s Compensation Law, is limited to the result of injuries sustained in a hazardous employment, is not before the court.</p>

Appeal by the plaintiff, the Bicalky Fan Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of December, 1916, vacating and setting aside an order directing that this action be placed at the head of the day calendar for the first day of the Equity Term and postponing the trial until the final determination of the issues joined in the United States District Court for the…

Appeal by the Geneva Telephone Company and another 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 Ontario on the 2d day of November, 1916, granting the motion of the petitioner herein.

Appeal by the plaintiff, The People of the State of New York, from a judgment and order of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county'of Erie on the 11th day of February, 1916, sustaining a demurrer interposed by the defendant to an indictment charging him with maintaining a nuisance, dismissing the indictment and denying the application of the district attorney for the resubmission of the case to the grand jury.

Application by the relator for a writ of prohibition to restrain a justice of the Supreme Court from hearing and deciding motions for new trials in two actions in the Supreme Court.

<p>Appeal by the plaintiff, William E. Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 24th day of June, 1916, upon the decision of the court dismissing the complaint, a jury having been waived.</p>

Appeal by the plaintiff, David Kahn, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk'of the county of Warren on the 1st day of December, 1916, overruling a demurrer to a defense contained in the answer.

Appeal by the defendants, Edna Stern Salmon and another, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Schenectady on the 28th day of October, 1916, upon the decision of the court after a trial before the court without a jury. Judgment unanimously affirmed, with costs, on the opinion of Van Kirk, J., at Trial Term.

Appeal by the relator, the Equitable Trust Company of New York, from an order of the Supreme Court, made at the Rock-land Special Term and entered in the office of the clerk of the county of Rockland on the 15th day of January, 1917, denying its petition herein, Order affirmed on the opinion of Mr. Justice Tompkins, with ten dollars costs and disbursements.

<p>Insurance —Insurance Law, section 65, construed — when payment by agent of commissions in excess of salary not a violation of the statute — word “ such ” construed.</p> <p>The first clause of section 65 of the Insurance Law, prohibiting rebating and discriminations, forbids insured or agent to make any contract for insurance or agreement as to such contract other than as plainly expressed in the contract, and said clause is limited to insurance on property or risks limited within this State or against liability, casualty, accident or hazard that may arise or occur “ therein,” that is, within this State.</p> <p>The words “such insurance,” as used in said section, apply only to insurance on property or risk located within this State or against liability, casualty, accident or hazard that may arise or occur therein.”</p> <p>Hence, said section does not prevent an insurance agent employed under a written contract by the terms of which he was to receive a certain salary, and agreed to apply thereon all commissions earned and to pay to his employers commissions in excess of his salary, from paying said excess commissions, where the insurance placed by him consisted of marine insurance, which is expressly excepted from the operation of the statute, and of industrial, insurance at plants wholly outside this State.</p> <p>The word “ such ” when used in a contract or statute must, in order to be intelligible, refer to some antecedent, and will generally be construed to refer to the last antecedent in the contract, unless some compelling reason appears why it should not be so construed.</p>

Appeal by the plaintiffs, David E. Todd and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Mew York on the 24th day of April, 1914, dismissing the complaint on the merits upon the decision of the court after a trial at the Mew York Special Term.

<p>Landlord and tenant—lease construed—covenant by tenant to comply with ordinances and orders of municipality—fire escapes involving structural changes in building —when obligation to make changes does not rest upon tenant — eviction owing to failure of landlord to make structural changes—tenant not liable for rent — transfer of power from one municipal department to another.</p> <p>Although a lease required the tenant to comply with the orders and regulations of the Federal, State and city governments and the departments and bureaus thereof, and to comply with a,ll rules, orders and regulations of the Few York Board of Underwriters for the prevention of fires, at his own cost and expense, and also to make, at his own" cost and expense, repairs of every nature to the demised premises, the covenant does not require the tenant to comply with that part of an order of the fire commissioner of the city of Few York relating to the installation of fire escapes, etc., which involved structural changes in the demised building by inclosing the stairway from cellar to roof with a wall of fire-retarding material.</p> <p>Hence, although under the terms of his covenant the tenant may have been required to make some of the improvements ordered by the fire commissioner, where he refused to make said structural changes not called for by the covenant, and, on the landlord’s refusal to make said change was evicted by order of the fire commissioner, the landlord cannot recover the rent reserved in the lease for the period following the eviction.</p> <p>As the eviction was due partly to the landlord’s failure to comply with the order of the fire commissioner, as well as to the tenant’s failure in this respect, the landlord cannot recover rent.</p> <p>Although the charter of the city of Few York did not authorize the fire commissioner to make an order for said improvements until after the making of the lease, it is immaterial where the same power had theretofore been vested in the building department under the Building Code, for there was a mere transfer of the power from one municipal department to another.</p>

Appeal by the defendant, John J. Campbell, from an order and determination of the Appellate Term of the Supreme Court affirming a judgment of the Municipal Court in plaintiff’s favor.

Appeal by the defendant, Clarence E. Bickett, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 10th day'of June, 1916, upon the verdict of a jury. .

Appeal by the defendants, Ezekiel 0. Perry 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 Yates on the 20th day of March, 1916, upon the decision of the court, certain questions having been submitted to the jury.

Appeal by the defendant, The Ulster and Delaware Railroad Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Otsego on the 30th day of October, 1916.

Appeal by the plaintiff, Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of June, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of June, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary Neisner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February, 1917, granting, without terms, plaintiff’s motion for leave to serve an amended complaint.

Appeal by The City of New York from a determination of the Public Service Commissions of the State of New York for the First and Second Districts and from the order made in accordance therewith and entered in the office of the secretaries of said Commissions on or about the 20th day of May, 1915, as amended and resettled by an order entered on or about the 3d day of August, 1915, and from the determination of said Commissions made at that time.

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 York on the 23d day of June, 1916, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Kings County Lighting 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 8th day of January, 1917, appointing a referee to hear and determine the issues herein.

Appeal by the plaintiff, Amalgamated Industrial Corporation, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of February, 1917, denying plaintiff’s motion to continue pendente lite an injunction heretofore granted.

Appeal by the defendant, The Equitable Life Assurance Society of the United States, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of August, 1916, granting plaintiff’s motion for a bill of particulars.

Appeal by the defendants Isaac Chaitin 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 22d day of December, 1916, in so far as it denies their motion for a stay until the return of certain letters rogatory issued to take testimony in Germany tó be used on the trial of the action, and further denies their motion for a reargument.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1219 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, Maurice J. Burstein, 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 6th 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 28th day of October. 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Dellora R. Gates, individually, from part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of February, 1917, and from part of an order entered in said clerk’s office on the 29th day of January, 1917, as resettled by the prior order.

<p>Insurance — policy insuring automobile against theft construed — larceny of automobile through business transaction in which owner participated — loss not covered by policy — practice — demurrer to answer.</p> <p>On a demurrer to an answer for insufficiency the complaint may be attacked on the ground that it fails to state facts sufficient to constitute a cause of action.</p> <p>A policy insuring the owner of an automobile against theft, robbery or pilferage by any person or persons other than those in the employment, service or household of the insured, does not cover a common-law larceny of the automobile by trick or device.</p> <p>Hence, the insured cannot recover on such policy where he merely alleges and proves that he delivered the automobile to third persons for the purpose of sale and that they, through a conspiracy to steal automobiles, converted the car to their own' use and stole the same. The alleged larceny was under the form and guise of a business transaction conducted by the insured himself and was not within the terms of the policy.</p>

Appeal by the defendant, Repetti, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 17th day of October, 1916, reversing an order of the City Court of the City of Hew York and reinstating the verdict of a jury in plaintiff’s favor.

Appeal by the defendant, Massachusetts Bonding and Insurance Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 25th day of October, 1916, affirming a judgment of the City Court of the City of New York in plaintiff’s favor and further affirming an order denying defendant’s motion for a new trial.

<p>Pleading — complaint — breach of contract — failure of plaintiffs to allege performance or willingness to perform — presumption where time set for performance is not stated.</p> <p>A complaint founded on an alleged breach of a contract by the defendant under which the plaintiffs were to have the exclusive right to manufacture certain goods, which is defective in that “due ” performance on their part is not alleged as permitted by section 583 of the Code of Civil Procedure, cannot be sustained as one where non-performance by the plaintiffs is excused because the defendant breached the contract before the time set for performance, if there is nothing to show that the defendant repudiated the contract before said time.</p> <p>Where the particular time for performance by the defendant is not alleged it will be inferred that the refusal to perform was made at the time set for performance and not before that time.</p> <p>Under the circumstances it was necessary for the plaintiffs to allege that they were ready and willing to perform at the time of the defendant’s refusal to perform, and in the absence of such allegation a demurrer to the complaint should be sustained.</p>

Appeal by the defendant, Michael Nocenti Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1917, denying defendant’s motion to vacate an order for the examination before trial of one John J. Wise, alleged to be the managing agent of the defendant.

Appeal by the plaintiff, A. P. Youngblood, Inc., 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 17th day of November, 1916, and the 16th day of December, 1916, respectively, the first order staying the trial of this action until the determination of an action claimed to be pending against the defendant in Italy and the other denying plaintiff’s motion for a reargument upon…

Appeal by the plaintiff, Fidelity and Deposit Company of Maryland, 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 or about the 7th day of March, 1916, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, Otis Elevator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 29th day of November, 1916, upon the verdict of a jury for $334.50, and also from an order entered in said clerk’s office on the 8th day of December, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Albert Falck and another, as executors, etc., and by Jason Rogers and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1916, upon the report of a referee, with notice of an intention to bring up for review an interlocutory judgment herein entered upon the decision of the court after a trial at the New York Special Term.

<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 plaintiff, Henry C. S. Stimpson, as receiver, 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'14th day of June, 1916, dismissing the complaint upon the merits upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Lamar Hardy, as corporation counsel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of October, 1916, directing the issuance of a writ of mandamus commanding the appellant to execute a certificate certifying that the relator was the prevailing, party in a certain proceeding, and commanding him further to exercise his judgment as to the reasonable…

Appeal by the defendant, New England Equitable Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York oh the 9th day of November, 1916, sustaining a demurrer to a defense and counterclaim and granting plaintiff’s motion for judgment on the pleadings, and also from the judgment entered in said clerk’s office on the 10th day of November, 1916, pursuant to said order.

Appeal by the defendant, IT. S. Expansion Bolt 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 27th day of June, 1916, upon the decision of the court after a trial at the New York Special Term. The judgment awarded plaintiff an injunction and an accounting.

Appeal by the defendants, Hyman Shevitz and others, from a judgment of the Court of Special Sessions of the City of New York, rendered against them on the 8th day of March, 1916, convicting them of a violation of the Labor Law.

<p>Will—decree of probate as res adjudicata— trust—validity of provision for accumulation of income to pay off incumbrances—validity of trust sustained notwithstanding invalidity of one provision — trust limited upon person attaining given age.</p> <p>A decree of a Surrogate’s Court admitting a will to probate is conclusive as an adjudication that the will was validly executed and is the last will and testament of the decedent, but is not res adjudicaba as to the validity oí provisions thereof, which question was not necessarily involved in the probate proceeding.</p> <p>Where a testator gave all his property to his executor and executrix in trust to pay annuities to his widow and each of his children out of the net income and to create out of said income a sinking fund with which to pay off and discharge mortgages and other incumbrances, or to be used in the improvement of the property, the provision for the sinking fund is invalid but does not affect the validity of the provision for the benefit of the widow and children, the only effect being that the beneficiaries will be entitled to receive the whole net income from the beginning.</p> <p>Where a trust is limited upon a certain person attaining a given age it is to be construed as if it was in terms provided that the trust was to continue until the person upon whose life it is limited attains the given age or sooner dies,</p> <p>Hence a provision of the will that the corpus of the estate should be divided between the testator’s children “when my youngest child living at the time of my death shall arrive at the age of forty-five years ” does not limit the term of the trust by a fixed period of time so as to render the trust invalid.</p> <p>Shearb, J., dissented, with opinion.</p>

Appeal by the plaintiff, American Radiator Company, and by the defendants, E. F. Keating Company and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on or about the 21st day of July, 1916, dismissing the. complaint, upon the decision of the court after a trial at the New York Special Term. Judgment affirmed, with costs, on opinion of Shearn, J., at Special Term.

Appeal by the defendant, United States Fidelity and Guaranty 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 20th day of June, 1916, upon a decision of the court after a trial before the court without a jury.

Appeal by the plaintiff, Catherine M. Cannon, 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 5th day of October, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, Evelyn de Cordova, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of June, 1916, upon a dismissal of the amended complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the defendant, Illinois Surety Company, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of May, 1916, as resettled by an order entered in said clerk’s office on the 2d day of June, 1916, reversing a judgment of the City Court of the City of New York dismissing the complaint and directing judgment for plaintiff, and also from the judgment entered in the office of the clerk of said City Court on the 10th day of July, 1916, pursuant to said order' and determination.</p>

<p>Negligence—personal injuries caused by fall on icy steps — condition created by act of defendant—when notice to defendant immaterial — evidence constituting prima facie case of negligence — practice — appeal — failure to take formal exception to dismissal of complaint — motion for new trial upon the minutes.</p> <p>Where the complaint in an action to recover damages for personal injuries to the plaintiff, who slipped upon ice accumulated upon the entrance steps of a tenement house under the defendant’s control and care, is based, not upon the defendant’s having permitted a dangerous condition to exist, but rather upon the affirmative act of the defendant in creating a dangerous condition by washing the steps in freezing weather, the element of notice of the condition to the defendant is not involved. Although the defendant was endeavoring to clear the steps from snow which had fallen upon them by means of heated water, it was bound to foresee that leaving the water upon the steps in freezing weather would create a dangerous condition, and hence it was error to dismiss the complaint, there being a prima facie case of negligence.</p> <p>The Appellate Division will review the dismissal of the complaint, although there was no formal exception, if there was'a motion for a new trial upon the minutes which the court entertained and denied, for the motion could only have been based upon an exception which dissented from the ruling of the court.</p> <p>Scott and Smith, JJ., dissented.</p>

<p>Duress—action to recover moneys paid on threat of defendant to cause municipal license to be rescinded—pleading — complaint not stating cause of action.</p> <p>Action to recover moneys alleged to have been paid under duress. The complaint in substance alleged that the defendant is the owner of a saloon on a corner on which the plaintiff was duly licensed by the city of New York to maintain a newsstand, that no part of plaintiff’s stand was located upon or abutted on the defendant’s premises, but that the plaintiff for a period of twelve years paid a monthly sum of money to the defendant under the threat that if the money was not paid the defendant would cause the plaintiff’s license to be taken away and would cause him to be ousted from the location. Complaint examined, and held, to state mere conclusions and not facts showing actionable duress, and that the defendant’s motion for judgment on the pleadings should be granted.</p> <p>It was not sufficient merely to characterize defendant’s conduct as a threat, or to allege that the payments were made under duress. The complaint should state facts which constitute a legal basis for the charge of compulsion, or involuntary payment, so that the court can see that the pleader’s conclusion of law is justified.</p> <p>It is sometimes necessary to plead facts more br less evidentiary in order to avoid pleading mere conclusions.</p> <p>A mere statement of intention to resort to the courts or to public officials, however tmjustified, is not a threat in a legal sense.</p> <p>It seems, that even if the first payment by the plaintiff were made under duress, the subsequent payments extending over a period of nearly twelve years were not equally paid under duress, in the absence of allegations of fact from which it appears that each subsequent payment was made under compulsion, or that they were made under protest. Smith, J., dissented.</p>

<p>Pleading — complaint — action to recover for services actually rendered — master’s right to discharge not involved — complaint stating cause of action for reasonable value of services rendered.</p> <p>Where an employee after his discharge sues his employer, not for a breach of the contract of employment, but to recover for services actually rendered, the employer’s right to discharge is not involved, and the employee is entitled to recover at the agreed rate of compensation if the same was fixed, and if not, then for the value of the services rendered.</p> <p>Where the employer, by demurring to the employee’s complaint, admits the plaintiff’s allegations to the effect that he was to he paid for his services at the rate of fifty dollars per week only in case he was discharged because his services were not satisfactory, but that said sum was not in full payment of the plaintiff’s services if the employment were not continued for any other cause, and the plaintiff further alleges that his services were of a satisfactory and high class character, and that the ground of his discharge was not that his services were unsatisfactory, the defendant’s motion for judgment on the pleadings should be denied, for under sueh complaint the plaintiff is entitled to recover the reasonable value of his services up to the time of his discharge.</p> <p>Clarke, P. J., dissented.</p>

Appeal by the.defendant, Baltimore and Ohio Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Charles A. Collin and others, attorneys, 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 9th day of February, 1917, requiring them to turn over to the respondent the sum of $600 assets of the estate in their possession.

Appeal by the defendant, Moe Loeb, 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 March, 1916, upon the verdict of a jury for $750, and also from an order, entered in said clerk’s office on the 8th day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lucy, Lady Duff-Gordon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of January, 1917, denying defendant’s motion for judgment on the pleadings consisting of an amended complaint and a demurrer thereto.

<p>Injunction — suit to restrain action of Federal court in distributing assets in its possession — sufficiency of complaint and affidavits — jurisdiction of State court to restrain Federal court from proceeding in pending action.</p> <p>A complaint in a suit by the preferred stockholders of a railway company brought at a time when they were .prosecuting an action in the Supreme Court of this State for an accounting and damages against the lessee of their company, claiming to be unsecured creditors, and when the defendant trust company, as trustee, had obtained a j udgment on debenture bonds against the lessee company in the Federal court in another State, to collect which it had instituted proceedings in said court, which complaint, on information and belief, charges the defendant with a conspiracy to compel the plaintiffs to submit their claims as preferred stockholders to the determination of the Federal .court, examined, together with affidavits made on information and belief in support thereof, and held, to furnish no proof of the existence of a cause of action in equity entitling the plaintiffs to an injunction.</p> <p>Affidavits as to conversations with counsel for the lessee company are not competent evidence of the defendant trust company’s participation in the alleged conspiracy.</p> <p>The Supreme Court has no jurisdiction to restrain the Federal court from proceeding as it sees fit in a cause pending before it.</p> <p>An injunction granted in such suit which provides that the claim involved in a suit by the plaintiffs, pending in the Supreme Court, shall be excluded from and shall in nowise be affected by any order, rule or decree made by or in the Federal court, attempts to limit the freedom of the latter court in adopting such plan for the reorganization of the railroad company, or for the distribution of its assets as in its judgment seems best, and for this, among other reasons, should be vacated.</p> <p>As the injunction sought by the plaintiffs seeks to restrain the action of the Federal court and to dictate the form of its decree in distributing to the creditors the assets of the railway company in its possession, objections thereto cannot be validated by the claim that it operates on persons only, and those within the jurisdiction of the court.</p>

<p>Appeal by the defendants, Robert J. Rooney and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 23d day of August, 1916, upon the decision of the court after a trial at the Bronx Special Term, the facts having been stipulated.</p>

<p>Landlord and tenant—lien under Greater New York charter against property of owner for water charges — constitutional law—due process of law—consent of owner — primary liability of lessee — when holder not liable as surety.</p> <p>When an owner expressly consents to a tenant’s using water in a building supplied through pipes installed or continued by the owner for the purpose of connecting the building with the city’s water main, the owner assents to the city’s supplying water to the tenant for use in the building, and such assent must be deemed to be made with a view to the existing law.</p> <p>Hence, such property leased for business purposes in which the tenant was to operate and maintain an engine, boiler and elevators, and was to pay all water charges, is subject to a lien for water measured by a meter in favor of the city of Hew York, pursuant to the provisions of the charter, where the tenant fails to pay, although such charge is not a tax but a mere debt.</p> <p>The enforcement of such lien does not deprive the owner of property without due process of law.</p> <p>Although the tenant under the circumstances is liable to the city primarily for the water consumed, and the owner’s property is also liable under the charter, the latter cannot be held to be only liable as a surety so as to require his express assent in writing.</p> <p>Where two are liable, and one is said to be primarily liable, that does not . necessarily mean that the other is liable as a surety.</p>

Appeal by the defendant, Moses Schwartz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of November, 1916, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, William Fischer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1917, denying his motion to require defendant to make its answer more definite and certain, and to elect whether it will rely upon its counterclaim for reformation of the contract it relies upon, and also to separately state and number its defenses and counterclaims.

<p>Attorney at law disbarred — repudiation of agreement to reimburse bondsman.</p> <p>Attorney at law disbarred for inducing a person to execute a bail bond for his client under a promise to reimburse her in the event of a forfeiture of the bond and for filing a verified answer when sued by the bondsman after a forfeiture in which he alleged that his agreement to indemnify the plaintiff was without any consideration, thus repudiating his written Obligation.</p>

<p>Attorney at law disbarred — conversion of client’s money received for special purpose.</p> <p>Attorney at law to whom his client had intrusted moneys to be expended for the printing of papers on a contemplated appeal disbarred for converting said moneys to his own use and refusing to account therefor after he had discovered, by reviewing the evidence at trial, that there was no ground whatever for an appeal.</p>

<p>Motion by John Purroy Mitchel, as mayor, for an alternative writ of prohibition directed to James C. Cropsey, a justice of the Supreme Court, commanding him to desist from further proceedings under an order made by him pursuant to section 1534 of the charter of the city of New York (Laws of 1901, chap. 466), dated March 2, 1917, for the examination of said John Purroy Mitchel, mayor of the city of New York, and other city officials therein named.</p> <p>At the same time there was presented and argued before this court a motion to vacate the said order for the examination.</p> <p>Pursuant to chapter 777 of the Laws of 1911, the board of estimate and apportionment was considering a proposed contract with the New York Central railroad to remove the tracks of the railroad from the streets of the city at grade, and to effect many changes as to the location and character of the road from Dyckman street to Battery park. Plans and profiles and maps of the proposed work had been made, reports of committees received, a proposed contract drawn, the matter referred to a committee of the whole, and a public hearing advertised. Further proceedings were halted on January 15, 1917, by a preliminary injunction granted in a taxpayer’s action. Meanwhile, and pending the taxpayer’s action, and while the board is yet under said injunction, the order which is the subject of these proceedings was granted.</p>

Appeal by the plaintiffs, Adolph Wronker and another, as executors, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of said county on the 21st day of March, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiffs’ motion for a new trial made upon the minutes. The appeal was transferred from the Fourth Department to the Second Department.

<p>Attorney at law disbarred — failure to obey order in summary proceedings directing payment of moneys withheld from clients.</p> <p>Attorney at law disbarred for failing to obey an order of the Supreme Court entered in summary proceedings instituted against him by his clients to compel the payment of moneys withheld under unconscionable and void agreements of retainer.</p> <p>It is the duty of an attorney to obey forthwith an order directing him to pay over to his clients moneys wrongfully withheld from them, and not to wait until he is coerced into so doing by threat of imprisonment or by the menace of disciplinary proceedings, especially where such order has been passed upon and confirmed by the appellate courts.</p>

The defendant was convicted in the Court of General • Sessions of the City and County of New York on October 28, 1915, of the crime of murder in the first degree. On February 27, 1917, the judgment- of conviction was affirmed by the Court of Appeals.

<p>Public health — practice of medicine by membership corporation and unlicensed officer thereof — administration of cure for drunkenness — malicious prosecution—prosecution by medical society for illegal practice of medicine—probable cause — acquittal of plaintiff—burden of proof—evidence—failure to analyze ingredients of proprietary medicine — competency of lawyer advising criminal prosecution — warning to affiant of liability for perjury if affidavit be untrue.</p> <p>A business corporation may not in its own name practice medicine, that is to say, administer medicine in treating diseases or physical conditions, even though it does so upon the advice or prescription of a licensed physician in each individual case.</p> <p>It seems, that only membership corporations such as hospitals, infirmaries, dispensaries, etc., approved by the State Board of Charities and a justice of the Supreme Court, may practice medicine.</p> <p>It is equally a violation of the Public Health Law for the manager or officer of a membership corporation, who is not a licensed physician, to practice medicine in the name of the corporation, as by advertising an alleged cure for inebriety and administering remedies therefor to patients who come to such incorporated institution.</p> <p>For an officer of such corporation, not being a licensed physician, to advertise, prescribe and administer a so-called " patent ” remedy for inebriety, of the ingredients and nature of which he is ignorant, is practicing medicine in violation of the statute.</p> <p>On proof of the facts aforesaid the officer of such corporation should have been convicted of illegally practicing medicine and, although he was actually acquitted by the jury in a prosecution instituted by the department of a medical society having charge of the investigation and suppression of the practice of medicine by quacks and others, said society, having been informed of these facts and having warned the offender that his practice was illegal, had probable cause for the criminal prosecution as a matter of law, and hence a verdict rendered against said medical society in an action for malicious prosecution will be reversed and the complaint therein dismissed.</p> <p>Where the defendant in the action for malicious prosecution moved for a new trial upon the ground that the verdict against it was contrary to the law and to the evidence the question of probable cause may be reviewed by the Appellate Division.</p> <p>The burden of proving the want of probable cause rests upon the plaintiff in an action for malicious prosecution, and the fact of the plaintiff’s acquittal on a criminal charge is not evidence of want of probable cause.</p> <p>Evidence examined,, and held, that a statement made to the officers of the defendant medical society by a person who had been treated for inebriety by the plaintiff and information communicated by an investigator employed by it constituted, as a matter of law, probable cause for the criminal prosecution of the plaintiff.</p> <p>In the action for malicious prosecution it was error to exclude questions put on cross-examination to a physician employed by the corporation for the purpose of showing that he had never made an analysis to ascertain the ingredients of the medicine administered to inebriates.</p> <p>So, too, it was error to exclude evidence as to the legal knowledge and experience of the defendant’s lawyers whose advice it had relied upon in instituting the criminal prosecution.</p> <p>Moreover, it was error to exclude evidence to the effect that the defendant’s attorneys, before taking the affidavit of a patient treated in the plaintiff’s institution, had admonished him as to his liability for perjury if he made any untrue statement therein.</p> <p>Rich, J., dissented, with opinion.</p>

Appeal by the defendants, Commissioners of the Palisades Interstate Park, 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 7th day of December, 1916, denying their motion for judgment' on the pleadings and overruling their demurrer to the complaint.

Certiorari issued out of the Supreme Court and attested on the 20th day of April, 1916, directed to George W. Kirchwey, as agent and warden of Sing Sing Prison, commanding him to certify and return to the Supreme Court all and singular the proceedings had before Thomas Mott Osborne, as agent and warden of Sing Sing Prison, in dismissing relator from his position as storekeeper of said prison.

Appeal by the plaintiff, Frank Osborne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th day of December, 1916, reversing a judgment of the City Court of Buffalo herein in plaintiff’s favor and dismissing the complaint, and also from an order entered in said clerk’s office on the same day pursuant to which said judgment was entered.

Appeal by the plaintiff, Louis Ax, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 5th day of March, 1917, denying his motion for a commission to take testimony in the city of Amsterdam, Holland, and for a stay.

Appeal by the plaintiff, Ellis Ames Ballard, individually and as trustee, 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 13th day of November, 1916, upon a dismissal of the complaint' by direction of the court at the close of plaintiff’s case.

Appeal by the contestant, George F. Bache, as administrator, from an order and decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 11th day of October, 1916, admitting to probate the last will and testament of Laura V. Ross, deceased.

<p>Fraud — action for fraud in inducing purchase of bonds and in influencing plaintiff not to bring suit — pleading — sufficiency of comí plaint — failure to allege resulting damage.</p> <p>Where a plaintiff alleges that he purchased bonds of a firm of stockbrokers, consisting of three members; that said purchase was made upon their false representations in material matters affecting the value of said bonds which were worthless, and that plaintiff in making said purchase relied upon said representations and was thereby damaged, and in a subsequent paragraph alleges that after one of the defendants had left the firm the other defendants, for the purpose of further deceiving the plaintiff and of calming his fears as to his investment, made other false and fraudulent representations in respect of said bonds to induce the plaintiff not to bring suit, said further allegations are insufficient to constitute a second cause of action against the remaining members of the firm because of the failure to allege any damage resulting from said false representations. Hence, the complaint is not demurrable upon the ground that it states two causes of action affecting different parties defendant.</p>

<p>Municipal corporations — contract with city of Mew York—acceptance of final payment precluding contractor from making further claims against city — authority of comptroller of city to modify or waive provisions of contract — evidence — practice—effect of motion for directed verdict.</p> <p>A contract releasing the city of New York from all liability to a contractor upon his'acceptance of final payment, precludes the contractor, upon acceptance of said payment, from bringing action upon other claims, notwithstanding a provision in a general release assuming to reserve all right to make claim against the city for the matters included in the action. This, because the comptroller of the city who executed the release had no power to modify the contract or to waive any of its provisions.</p> <p>Evidence in an action by such contractor held insufficient to establish its claims, even if the objection based upon the contract should not prevail.</p> <p>The effect of a motion for a directed verdict is to submit to the court only those claims that have not been dismissed during the trial of the action prior to the tune of the hearing of the motion.</p>

Appeal by the plaintiff, The City of Yonkers, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 25th day of July, 1916, confirming the report of a referee, and also from an order entered in said clerk’s office on the 30th day of August, 1916, amending the prior order.

<p>Landlord and tenant — action for rent — constructive eviction — failure of landlord to run elevator as required by lease — evidence raising question for jury.</p> <p>Action by a landlord to recover rent, the defense being a constructive eviction by reason of the failure of the landlord properly to operate an elevator in the building as required by the lease. It appeared that the defendant, a tailor making expensive gowns for ladies, occupied rooms on the fourth and sixth floors of the building and owing to the fact that the elevator was repeatedly out of order and failed to run he lost certain wealthy customers who refused to endure "the annoyance of mounting the stairway. Evidence examined, and held, that it was error to direct a verdict for the plaintiff because it was for the jury to say whether the evidence given by the defendant, which was contradicted by that of the plaintiff, constituted a constructive eviction.</p> <p>The plaintiff was entitled to a direction of a verdict for the rent for the quarter during which the defendant removed from the premises, but not for the rent thereafter accruing.</p>

Appeal by the plaintiff, Sarah Kroin, 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 23d day of October, 1916, upon a dismissal of the complaint by direction of the court upon the pleadings at the opening of the case.

Appeal by the defendant, Leo Rovere, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1917, denying his motion to vacate and set aside the service of the summons as to him and to dismiss the complaint. The suit was brought in equity to establish a part interest in certain real property. The summons was subscribed by the plaintiff in person.

<p>Municipal corporations—Highway Law construed — obstruction to village street maintained for over six years — public right of way extinguished.</p> <p>Although a village street as originally opened and used gave access to a wharf on the Hudson river, when the defendant erected a gate fifteen feet from the river, which shut off all access to the wharf and for over six years kept the gate locked except during business hours and posted a sign stating that the ground was private and that trespassing was forbidden and admitted persons through the gate for business purposes only, the public easement over the part of the street beyond the gate became extinguished by virtue of section 334 of the Highway Law, even though the original act of the defendant was unlawful.</p>

<p>Banks and banking — relation between bank and depositor—liability of bank for payment of draft upon forged indorsement of payee — effect of subsequent indorsements by third party in possession of draft — effect of acceptance by drawer.</p> <p>Where a fire insurance company causes a “loss draft” to be drawn on its bank, payable “to the order of” an insured for a loss sustained, the bank has no right to charge the company with payment where the naihe of the payee has been forged, although the company without knowledge of the forgery accepted the draft and caused the same to be paid to a third party out of its funds on deposit with the drawee.</p> <p>Another bank upon obtaining possession of the draft and indorsing the same after the forged indorsement of the payee and in guaranteeing the ■ indorsements, did not become liable to the insurance company as said company having a complete remedy against the drawee, did not suffer damage from such acts.</p> <p>The insurance company by accepting the draft did not guarantee the indorsements thereon, but merely gave it validity as a direction to the drawee to pay the sum therein named to the order of the payee.</p> <p>The relation between a bank and its depositor is that of debtor and creditor, not of agent and principal.</p> <p>Money deposited becomes part of the bank’s general funds, and it impliedly contracts to pay the depositor’s cheeks, acceptances, notes payable at the bank and the like to the amount of his credit, but in discharging its implied obligation it pays its own money as a debtor, not its depositor’s money as an agent.</p>

<p>Appeal by the plaintiff, Mutual Real Estate Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yew York on the 24th day of October, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Appeal by Miriam Schiller 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 21st day of September, 1916, construing the will herein.</p>

Appeal by the defendant, Schwartz & Co., Inc., from part of 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 22d day of March, 1916, upon the verdict of a jury rendered by direction of the court after the first cause .of action set .up in the complaint had been dismissed.

<p>Evidence — action to reform, written lease—testimony showing mistake of stenographer.</p> <p>In an action involving the reformation of a lease by changing the word “ disposed ” to the word “ dispossessed,” upon the ground that a stenographer had erroneously^ written the former word although the latter word had actually been dictated, it was reversible error for the court to exclude testimony offered to show the word actually dictated where the objection to the evidence was specifically based solely upon the ground that it tended to vary the terms of a written instrument.</p> <p>The party seeking the reformation of the writing had the right to show that, owing to such clerical error, the writing did not express the real agreement of the parties.</p>

Appeal by the plaintiff, Jac. Bokenfohr Company, Ltd., from a determination and order of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on or about the 17th day of May, 1915, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, first district, dismissing the complaint.

Appeal by the defendant, McMullen, Snare & Triest, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 15th day of March, 19i6, upon the verdict of a jury for $6,000, 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>Insurance — Loyal Orange Institution of the United States of America — authority of supreme grand master to suspend subordinate lodge — right of suspended lodge to equitable relief—inadequate remedy under constitution and laws of order — injunction — evidence — validity of election of supreme grand master — notice of change of place of election — stipulation limiting issues — estoppel.</p> <p>Provisions of the constitution and general laws adopted for the government of the Loyal Orange Institution of the United States of America examined, and held, insufficient to authorize the supreme grand master to suspend a subordinate lodge and to authorize others to assume its charter rights.</p> <p>Suit by a subordinate lodge which has been so deprived of its rights to prevent those claiming under the authority of one, alleged to have been elected as supreme grand master, to organize, in the name of the plaintiff, another lodge. Evidence examined, and held, that a judgment in favor of the plaintiff should be affirmed;</p> <p>That the one claiming to act as supreme grand master was not legally elected.</p> <p>A contention by the defendant that it had been the custom in the order for the supreme grand master to exercise during the intervals between the sessions of the supreme grand lodge substantially all the powers conferred upon it, and among them the power to suspend or revoke the charters of subordinate lodges, is not available for the reason that the plaintiff was not shown to be in any way estopped by any prior invalid acts of a supreme grand master from ascertaining the invalidity of the acts affecting it.</p> <p>A stipulation that the only issue to be determined was the legality of the election of the supreme grand master, because of its indefinite character, did not prevent the determination of the question as to the authority of the supreme grand master, especially since the defendants were not misled thereby.</p> <p>The question of the authority of the supreme grand master under the constitution and general laws is one of law.</p> <p>As the plaintiff did not have an adequate remedy under the constitution and general laws of the order, it was entitled to resort to a court of equity.</p> <p>Where the original notice of a meeting of the grand lodge was signed by the supreme grand master and the supreme grand secretary, a notice of change in the place of meeting should be given under like authority and should be signed by the supreme grand master.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York entered in the office of said Surrogate’s Court on the 13th day of September, 1916, affirming an order confirming the report of the appraiser herein assessing the transfer tax upon this estate.

Appeal by the plaintiff, Thomas O’Rourke Gallagher, 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 19th day of February, 1917, denying his motion for a retaxation of costs.

Appeal by the defendant, Oscar Daniels Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of October, 1916, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 16th day of October, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, .¿Etna Accident and Liability Company, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 28th day of October, 1916, upon the decision of the court after a trial before the court without a jury.

<p>Will — construction—word “ children ” does not usually include grandchild — burden of proof— will construed.</p> <p>The term “ children ” used in a will does not include grandchildren or more remote descendants unless there is something in the will to show that the word was used in a broader sense, and one claiming that the term includes a grandchild, or issue, must establish from the will that justice,. or reason, or the structure of the devisee warrants it.</p> <p>A will creating separate trusts for the testator’s daughters, income to the use of each for life, in substance provided that upon the death of any daughter the trust for her benefit should end, and the corpus be distributed between her issue living at the time of her decease as she might direct by will, or if she failed to make such testamentary direction, then to be divided among the issue “per stirpes and not per capitaIf any daughter died without issue her surviving, it was provided that her share shall be distributed among her surviving brothers and sisters and the child or children of deceased brothers or sisters “per stirpes and not per capita.”</p> <p>Held, that neither justice, nor reason, nor the structure of the devise, nor the language of the testator justified a construction by which the term “child ” could be held to include a great grandchild.</p>

Appeal by the defendant, Joseph Pecoraro, from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 15th day of May, 1916, convicting him of the crime of abduction.

<p>Crime — registering bets on horse races contrary to section 986 of Penal Law — seizure of defendants’ papers without search warrant — when no violation of Civil Rights Law — unreasonable searches and seizures — constitutional law — conflict of laws — Federal decisions not applicable in this State — remedy for violation of civil rights — evidence — identification of defendants by wire tapping — admissibility of evidence obtained by wire tapping—evidence justifying conviction—power of court to review action of grand jury.</p> <p>Under the law of the State of New York documentary evidence which is relevant to the issue must be admitted in a criminal trial without inquiry as to whether it was seized in violation of section 8 of the Civil Rights Law which affirms the right of the People to be secure against unreasonable searches and seizures.</p> <p>The Federal decisions on this subject rendered under the Fourth Amendment to the Federal Constitution do not apply in this State, for the Federal provision limits only the powers of the general government.</p> <p>It seems, moreover, that if the provisions of the State Civil Rights Law have been violated the remedy is to punish the wrongdoer and not to change the law of evidence.</p> <p>In a criminal prosecution for violation of section 986 of the Penal Law relating to the registering of bets or wagers upon horse races, it is proper to allow a witness called by the prosecution to identify the defendants by the sound of then* voices ais heard over the telephone by tapping the wire, although at the time the witness listened he had never before heard the voices of the defendants and based his identification on hearing them speak afterwards.</p> <p>Evidence examined, and held, sufficient to justify the jury in finding that the identity of the defendants was established beyond a reasonable doubt.</p> <p>Evidence as to a crime obtained by the police by tapping a telephone wire should not be excluded upon the g'round that the police in obtaining the information violated sections 553 and 1433 of the Penal Law.</p> <p>Evidence examined, and held, to establish a violation of section 986 of the Penal Law.</p> <p>Betting in itself, although not lawful, is not, with the exception of betting-on a prize fight, a crime; but public and professional gambling has been made criminal.</p> <p>Mere proof that the defendants conducted in their establishment continuous betting on horse racing- is not sufficient to establish a violation of section 986 of the Penal Law, for it must also be shown that the defendants kept in their establishment books, papers, apparatus or paraphernalia ior the purpose of registering and recording the bets.</p> <p>When a case is presented to the grand jury without previous consideration by a magistrate the court may order an inspection of the minutes, and if it appears that an indictment has been found in violation of the law it should be dismissed.</p> <p>Evidence presented to the grand jury examined, and held, that the jury were justified in concluding that if unexplained or contradicted it would warrant a conviction, and hence that the indictment should not be dismissed.</p>

<p>"Voluntary unincorporated mutual life assurance association — liability of president under section 1919 of Code'of Civil Procedure in action based on contractual obligation.</p> <p>The by-laws of a teachers’ mutual life assurance association, a voluntary unincorporated association consisting of more than seven members, provided for the payment upon the death of a member of $500 to the assignee of said member, and for an assessment of fifty cents to be collected from each surviving member, and the only penalty prescribed for the failure to pay an assessment was forfeiture of membership. In an action by an assignee of a deceased member against the president of the association under section 1919 of the Code of Civil Procedure to recover the death benefit solely upon the theory of a contractual obligation created by the constitution and by-laws, the defendant pleaded a general denial, and alleged as a defense that the association had been dissolved and had gone out of existence.</p> <p>Held, that since there was no contractual obligation on the part of the members either jointly or severally to the beneficiaries of deceased members, no recovery can be had under said section of the Code of Civil Procedure, and that the complaint should be dismissed.</p>

<p>Guaranty and suretyship — action on guaranty for payment of goods — continuing guaranty—evidence.</p> <p>Where, in an action on a guaranty to recover an unpaid balance for goods purchased by the plaintiffs and sold to third parties at the request of the defendants, it appears that the written guaranty executed by the defendants to pay for said goods if the third parties should not pay, is ambiguous with respect tp whether it was intended as a continuing guaranty or only as a guaranty for the first shipment, and the plaintiffs claim that it was executed pursuant to negotiations by which they were led to believe that it was to be a continuing guaranty, and it is susceptible of that construction, and the evidence as to such negotiations is controverted in part by the defendants, the case should be submitted to the jury on such controverted evidence with respect to the negotiations preceding the execution of the guaranty.</p> <p>Since the guaranty was drawn by the defendants, if the parol negotiations preceding its execution were as claimed by the plaintiffs, they were justified in relying upon it as a continuing guaranty for the payment of any goods sold to the third parties.</p> <p>Scott. J., dissented.</p>

<p>Appeal by the plaintiffs, Charles C. Bull, as trustee, and others, from a.judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of August, 1915, dismissing the complaint on the merits, awarding a personal judgment in favor of the defendants on their counterclaim, and declaring a lien upon the premises involved in this action therefor.</p> <p>The judgment was rendered upon the report of a referee appointed to hear and determine the issues.</p>

Appeal by the plaintiff, Elin Horter, 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 February, 1917, denying her motion to punish the defendant for contempt of court in failing to pay alimony, and also from an order as resettled, entered in said clerk’s office on the 20th day of March, 1917, denying her motion for a reargument.

<p>Will — construction —when stock valued at par for purpose of distribution — construction tending to produce equality favored — income payable from death of testator — time of payment of general legacies — appeal by general guardian in litigation by special guardian unauthorized.</p> <p>A testator, after directing that his residuary estate be divided into seven equal parts, gave one part to his widow, two parts to his trustees for his two daughters, one part to each of his two adult sons, and the remaining two parts to his trustees for his two infant sons, and then further directed that the shares of stock in a certain company which he might own at the time of his death be distributed by his executors in kind, in lieu of the proceeds of the same in money, in payment of the shares of his residuary estate, and further directed “ that for the purposes of fixing the value and amount of my residuary estate in order to determine the amounts of the several shares into which I have directed the same to be divided, and making the distribution hereinbefore directed, that the said stock be considered and taken to be worth its par value, and shall be so distributed and received in lieu of a sum of money equivalent to its par value; it being my intention hereby that all the stock * * * shall be distributed by my executors in lieu of cash, in or towards the payment of the said shares herein given and bequeathed to my sons,” naming them, “before applying any of said stock or the proceeds thereof towards the payment of the shares of my residuary estate herein given to my said wife or to be held in trust for the benefit of my said two daughters respectively.”</p> <p>Held, that the testator intended that the value of his residuary estate should be determined in gross before distribution, and that in so determining the value, the stock should all be estimated at par, and,that the total should be divided by seven and each of the sons sevenths should be taken in stock.</p> <p>If a will is susceptible of two constructions, one of which will tend to inequality in the distribution of the estate between the children ol the testator and the other will tend to produce equality, the latter construction is favored.</p> <p>Income of legacies is payable from the time of the death of the testator, unless from the provisions of the will a contrary intent is to be inferred.</p> <p>The statute forbidding the payment of general legacies until after advertisement for claims or of the lapse of a year from the issuance of letters, did not preclude the ascertainment of the amount of the net residuary estate or the distribution thereof until after a year from the issuance of letters.</p> <p>The general rule that a will speaks as of the date of the testator’s death and will be construed as operating according to the then existing conditions unless a contrary intent be thereby shown, applied.</p> <p>Where infants are represented in a litigation by then- special guardians, appeals by the general guardian are unauthorized and should be dismissed.</p>

Submission of a controversy as to the disposition of the proceeds of policies, etc., in the Equitable Life Assurance Society of the United States upon the life of Frank B. Tesson, deceased, upon an agreed statement of facts pursuant to section 1279 of he Code of Civil Procedure.

Appeal by the defendant, Supreme Conclave Improved Order Heptasophs, 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 9th day of December, 1916, upon the verdict of a jury rendered by direction of the court, both sides having moved at the close of the case for the direction of a verdict.

Appeal by the plaintiff, Bessie Wheeler, as administratrix, from a judgment of the Supreme Court in favor of the defend-' ant, entered in the office of the clerk of the county of New York on the 13th 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, Findeisen & Kropf Manufacturing Company of New York, 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 19th day of March, 1917, reducing the amount of a writ of attachment and denying appellant’s motion to vacate said writ.

Appeal by the plaintiff, James Everard’s Breweries, 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 March, 1917, granting defendants’ motion to vacate an order appointing a receiver herein pendente lite.

<p>Appeal by the defendant, Floral Park Villa 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 14th day of December, 1916, upon the verdict of a jury rendered by direction of the court, and also from so much of an order entered in said clerk’s office on the 11th day of December, 1916, as directed a verdict in plaintiff’s favor and denied defendant’s motion for a new trial made upon the minutes.</p>

<p>Municipal corporations — negligence—injury to motorcyclist caused by bridlepath, bordering Pelham Parkway, city of New York—maintenance of said structure not negligence.</p> <p>The city of New York cannot be charged with negligence, resulting in an injury to a passenger on a motorcycle, merely because it maintained on each side of the asphalted roadbed of Pelham Parkway, a suburban road which is a part of the park system, two strips of loose and graveled earth from two to five inches below the level of the asphalt and designed to be used as bridlepaths.</p> <p>Nor can negligence be based upon the failure of the city to give notice of the point at which the bridlepaths began, especially where a complete lighting system has been provided at said locality.</p> <p>Page, J., dissented.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 3d day of October, 1916, affirming a prior order fixing a transfer tax.

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

<p>Appeal from a judgment", entered on a decision after a trial at Special Term.</p>

<p>Appeal from an order of the Special Term granting an injunction pendente lite.</p>

<p>Appeal from an order striking the cause from the Trial Term calendar.</p>

<p>Appeal from an order of the Surrogate’s Court, as resettled, granting a motion for the issuance of a commission.</p>

Judgment modified so as to provide that the deficiency judgment shall only be calculated at four and one-half per cent, as found to be due, and as so modified affirmed, without costs.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 25th day of May, 1916, in favor of the plaintiffs, and from an order entered in said office on the same day, denying its motion for a new trial.

Appeal by the defendant Hillside Bank from part of a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 10th day of May, 1916.

<p>Appeal from an order denying the plaintiff’s motion for judgment on the pleadings, sustaining defendant’s demurrer and dismissing the complaint.</p>

<p>Appeal from a judgment entered upon default.</p>

<p>Appeal from a judgment dismissing the complaint after a' trial at Trial Term.</p>

<p>Appeal from an order of the Supreme Court, made at Bronx Trial Term, denying the plaintiff’s motion to have this cause placed on the special calendar.</p>

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

<p>Appeal from part of an order, as resettled, continuing an injunction during the pendency of the action.</p>

<p>Motion for a reargument of an appeal from a judgment entered on a verdict and from an order denying a motion for a new trial.</p>

Appeal by defendants, Henry Hornblower and others, from an order denying their motion to strikeout paragraphs 15,16, 17, 20, 21,24 to 28, inclusive, and parts of paragraphs 18 and 19 of the complaint as irrelevant and redundant, and by plaintiff from so much of the order as requires him to make paragraph 20 more definite and certain.

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

Determination annulled, with fifty dollars costs and disbursements, and relator reinstated. The court is unanimous in the decision that the determination of guilt on the first specification is against the weight of evidence. The majority of the court is of opinion that the determination of guilt on the second specification rests solely on the evidence of a self-confessed perjurer, and is against the weight of evidence.

Judgment and order affirmed, with costs. Held: the trial court correctly held, in effect, that defendant’s motorman was not negligent in making an emergency stop of his car to avoid running down the child on the track, even though it resulted in throwing down and injuring plaintiff, a passenger on the car, unless there was some prior negligence of the motorman.

<p>Railroad — highway—fencing across street which Grosses right of way.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Albany county clerk’s office on the 9th day of June, 1916, and also from two orders entered on the same day.</p>