Volume 178 — New York Appellate Division Reports

<p>Eminent domain — municipal corporation — street opening, city of Hew York—amendment to charter allowing interest on awards to unknown owners is retroactive — claimant to such, award entitled to interest although, condemnation was instituted prior to amendment.</p> <p>Chapter 466 of the Laws of 1901, which amended section 1003 of the charter of the city of New York relating to the condemnation of lands for street openings in said city, by providing that on default of payment of awards made to unknown owners the city shall remain liable for such awards deposited with it with “interest thereon from a day one year after the date upon which title vested in The City of New York to the person or persons who may thereafter be found entitled to the same,” is retroactive and applicable to condemnation proceedings which were instituted before the amendment went into effect. . Hence where a person established his right to an award made to unknown owners he is entitled to interest according to the terms of said amendment.</p>

Appeal by the defendant, Nassau County Trust Company, from so much of 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 9 th day of August, 1916, upon the report of a referee as directs plaintiff, as trustee, to retain in its hands certain accrued income upon a trust fund.

Appeal by the plaintiff, George H. Diehl, Jr., 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 3d day of October, 1916, granting respondent’s motion for judgment on the pleadings consisting of a complaint and answer, and also from the judgment entered in said clerk’s office on the 19th day of October, 1916, pursuant to said order.

<p>Appeal by the plaintiff, Moro de Moro, 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 December, 1916, denying his motion to open a default and for leave to serve a demurrer.</p>

Appeal by the plaintiff, The Fifth Avenue Building 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 27th day of February, 1917, overruling its demurrer to certain defenses and counterclaims in the amended answer.

Appeal by Aaron P. Garrabrant, as executor, and another, from an order of the Surrogate’s Court of the county of New York, entered hi the office of said Surrogate’s Court on the 21st day of March, 1917, denying a motion to vacate an order resettling the decree herein entered upon the final settlement of the accounts of the executor and executrix.

<p>Municipal corporations — city of Mew York—violation of Sanitary Code — evidence—jurisdiction—transfer of case to Court of Special Sessions — Inferior Criminal Courts Act, section 44, as amended, construed.</p> <p>Prosecution of a defendant for the violation of section 124 of the Sanitary Code of the city of Mew York. Evidence examined, and held, sufficient to justify a conviction.</p> <p>Where in such a case it appears that the magistrate before whom the defendant was first arraigned did not undertake to hold a Court of Special Sessions, but sat merely as a committing magistrate, and as such held the accused to answer under section 208 of the Code of Criminal Procedure, it was unnecessary for said magistrate in order to transfer jurisdiction to the Court of Special Sessions to make an order remitting the case for trial to said court, as provided by section 44 of the Inferior Criminal Courts Act of the City of Mew York as added by chapter 531 of the Laws of 1915. Said section has no application when the magistrate merely sits as a committing magistrate.</p> <p>A city magistrate, merely because under certain circumstances he may become a Court of Special Sessions, does not thereby lose his power and authority as a committing magistrate, and when he sits as such his jurisdiction, power and duty are prescribed by chapter 7 of the Code of Criminal Procedure, section 188 et seq.</p> <p>If a single magistrate enters upon a trial as a Court of Special Sessions, under section 44 of the Inferior Criminal Courts Act, as amended, and after so doing sees fit for any of the reasons stated in that section to remit the trial to another Court of Special Sessions, whether held by one magistrate or by three justices, he must make an order to that effect in order to confer jurisdiction upon the court to which the case is remitted to proceed with the trial thereof.</p> <p>If, however, a city magistrate before whom a complaint is made does not undertake to hold a Court of Special Sessions, but sits merely as a committing magistrate, his powers and duties are prescribed by the Code of Criminal Procedure, and it is sufficient that he hold the defendant to answer. Thereupon the Court of Special Sessions, composed of three justices, will, upon information filed, and in a proper case, have jurisdiction to try the accused, or, if the crime charged be not triable before the Court of Special Sessions, the accused maybe tried upon indictment.</p>

<p>Pleading — action against master for personal injuries — defense alleging that Compensation Commission has disallowed claim—demurrer.</p> <p>A demurrer to a separate defense contained in the answer of an employer sued by an employee for personal injuries which alleges that the State Workmen’s Compensation Commission has determined that the plaintiff’s claim was not founded upon an accident and was disallowed should be sustained.</p> <p>De AnGtBLIS, J., dissented.</p>

Appeal by the plaintiff, Antonio Corico, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Allegany on the 21st day of November, 1916, overruling a demurrer to part of the answer and dismissing the complaint.

<p>Appeal by the defendant, Gorham Manufacturing 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 21st day of January, 1916, as amended by an order entered in said clerk’s office on the 27th day of January, 1916. The judgment was rendered upon the verdict of a jury. Defendant further appeals from an order entered in said clerk’s office on the 14th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Master and servant — "Workmen’s Compensation Law, State of New Jersey—action on said statute brought in courts of this State — failure of plaintiff to show compliance with foreign statute — preliminary determination by judge of Court of Common Pleas of New Jersey essential.</p> <p>The Workmen’s Compensation Act of the State of New Jersey, which confers a cause of action for the death of an employee who duly elects, to take under said statute and to relinquish his common-law rights and any other statutory rights of his dependents in case of his death, requires the claimant in a death ease, as a prerequisite to action on said statute, to have the amount of the weekly indemnity and the present value thereof first determined by a judge of the Court of Common Pleas of the State of New Jersey. Hence, the courts of this State will not entertain an action based on said statute where it is brought in total disregard of all of the provisions thereof relating to a preliminary determination by a judge of said foreign court of controversies respecting the facts and the right of the claimant to receive a gross sum.</p> <p>It seems, moreover, that even where such action maybe maintained in our courts, the plaintiff must show that he is a person who would be entitled to administration on the estate of the decedent in New Jersey.</p>

Appeal by the defendant, Ernest Honig, 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 22d day of May, 1916, affirming a judgment of the City Court of the City of New York in plaintiffs’ favor, and also affirming an order of said court denying defendant’s motion for a new trial. An appeal is also taken from the judgment and order so affirmed.

Appeal by the defendant, Manhattan Savings Institution, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of April, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of April, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Hyman D. Baker, 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 November, 1916, denying his motion for judgment on the pleadings, consisting of an amended complaint and answer.

Appeal by the defendant, Ignace I. Apfel, 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 November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of November, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Steam Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of December, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1915, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Leon H. Rouse, as president, 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 5th day of January, 1917, overruling their demurrer to the complaint.

Appeal in each case by the defendants, Popular Pictures Corporation and London & Lancashire Indemnity Company of America, from orders of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of -the county of Hew York on the 17th day of April, 1917, granting the motions of the plaintiffs in each case for judgment upon the special defense pleaded in the answers of the defendants.

<p>Judgment — execution — levy against accruing salary unauthorized — garnishment — third party order for examination in proceedings supplementary to execution—restraining disposition of property • pending examination.</p> <p>Although a fund representing salary earned, whether in the possession of the employer or of the employee, or of a third person, is not exempt from levy under execution and may be seized wherever found, a levy may not be made against the employer when the salary is not only not due but is only partially earned.</p> <p>The only way to reach an accruing salary is by garnishment proceedings under section 1891 of the Code of Civil Procedure.</p> <p>A third party order in supplementary proceedings may be issued against an employer directing an examination concerning its alleged indebtedness, and, pending such examination, restraining the disposition of any property belonging to the judgment debtor.</p>

<p>Equity—injunction — obtaining trade or business by fraud and deception.</p> <p>Where it is clearly established that an attempt is being made by one person to get the business of another by any means-that involves fraud or deceit, a court of equity will protect the honest trader and restrain a dishonest one from carrying out his scheme.</p> <p>Hence, where a dealer in gowns procures a person to misrepresent herself as a private customer and purchase gowns from another dealer of exclusive designs, and removes therefrom the trade mark and exhibits such gowns and copies thereof to its customers, representing them to be its own importation, not created by the dealer from which the original was purchased, it should be enjoined from exhibiting and selling such gowns.</p> <p>Such dealer, however, has a legal right to copy and to sell as its own creations the exclusive models designed by another, if the models or an inspection thereof are procured by fair means.</p> <p>Olarke, P. J., and Davis, J., dissented, with opinion.</p>

Appeal by the plaintiff, George Colon & Company, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Bronx on the 3d day of August, 1916, upon the decision of the court dismissing the complaint after a trial at the Bronx Special Term.

Appeal by the defendant, Henry Disston & Sons, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of June, 1916, upon the verdict of a jury for $1,250.

<p>Appeal by the defendant, Sea Beach Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of November, 1916, upon the verdict of a jury for $900.</p>

<p>Appeal by the plaintiff, James J. Nolan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 29th day of May, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Trust — apportionment of dividends on stock held by trustees between beneficiary and corpus — increase of value in corporate stock through accumulations of profits made by corporation—sale of stock by trustees to corporation itself—partial liquidation of corporate affairs —when life beneficiary entitled to apportionment of increased value of stock sold—trustees — commissions — effect of annual receipt of commissions — waiver.</p> <p>Ordinary cash dividends belong to the life tenant or beneficiary of an estate.</p> <p>Extraordinary dividends representing accumulated profits, whether distrib.uted in cash or in the form of stock, are to be apportioned between the corpus of the trust and the income, in the proportion in which the surplus thus distributed has been earned before or after the creation of the trust fund. This apportionment is made in order to preserve the integrity of the trust fund and at the same time conserve the rights of the life beneficiary.</p> <p>When a corporation is liquidated, its assets sold, and the proceeds distributed among its stockholders, an apportionment must be made between the capital of the trust fund and the income, and so much of the sum received by the trustee as represents profits accumulated since the creation of the trust must be attributed to income and paid to the life tenant; otherwise, there would result an increase in the corpus of the fund by accumulations of income, which, except for the benefit of inf ants, is against public policy and expressly condemned by statute.</p> <p>Where trustees who are also remaindermen hold one-half of the stock of a domestic business corporation and sell the same to the corporation itself at a time when the value thereof has more than doubled since the creation of the trust, owing to the fact that the corporation retained portions of its profits instead of paying them out by way of dividends, thus enhancing the corporate assets and the value of the stock, there has been in effect a partial liquidation of the corporation and the sum received by the trustees should be apportioned between the capital of the trust fund and the beneficiary under the aforesaid rule which obtains when a corporation is liquidated.</p> <p>The apportionment should be made in so far as the price received by the trustees on the sale of the stock to the corporation represents accumulated unrestricted profits earned since the creation of the trust. But any increase in the value of the stock not caused by the expenditure upon it of a part of the accumulated profits and any increase in the value of the good will are the legitimate and proper accretions of the corpus of the trust fund and in so far as represented by the price received from the sale of the stock should be accredited by the trustees to capital.</p> <p>Where the trustees deducted commissions on annual settlements of their accounts they are deemed to have waived any commissions to which they might be entitled in excess of the amount retained by them.</p> <p>Shears'and Davis, JJ., dissented, with opinion.</p>

Appeal by the defendants, John Farson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1916, upon the decision of the court after a trial before the court without a jury.

Appeal by Francis H. Ruhe 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 or about the 27th day of February, 1917, denying his motion to vacate the writ of commitment herein.

Appeal by the petitioner, Pantha Brown Berry, 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 26th day of February, 1917, denying the application of the petitioner to terminate a trust of personal property.

<p>Attorney at law—admission of non-resident attorney on motion revoked.</p> <p>Admission to the bar of this State of a Pennsylvania attorney, on motion revoked upon the ground that he had not been admitted to practice in the Supreme Court of Pennsylvania, which is the highest court of law in that State, and for fraudulent statement in his affidavit that he had practiced continuously in the courts of Pennsylvania since his admission, and for failure to state that he had been indicted in said State.</p>

<p>Husband and wife — alienation of affection — scienter of defendant essential — evidence not establishing cause of action — failure of defendant to testify.</p> <p>A plaintiff in an action to recover for the alienation of her husband’s affection, she having previously separated from him, is under the burden of proving scienter on the part of the defendant, that is to say, that she knew of the relation she was breaking up.</p> <p>Moreover, facts must appear from which it may be inferred that the woman defendant was the pursuer, not merely the pursued, and she does not become liable because she may have accepted the admiration of the plaintiff’s husband.</p> <p>As the wrong involves-moral turpitude, no presumption of guilt can be indulged, unless the facts cannot be otherwise reconciled.</p> <p>Evidence in such action examined, and held, that a judgment for the plaintiff should be reversed because of her failure to prove scienter on the part of the defendant.</p> <p>As the plaintiff had not proven a cause of action when she rested no inference against the defendant can be drawn because she was not sworn in her own defense, for she was not obliged to contradict or explain facts which were insufficient to establish her liability.</p> <p>Mills and Rich, JJ., dissented.</p>

Appeal by Charles H. Tyler and others from a décree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 4th day of April, 1916, overruling their exceptions to the report of the referee herein, confirming said report and adjudging that the appellants’ claims are not valid obligations against this estate.

Reargument of an appeal by the defendant, Atlantic Hygienic Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 4th day of March, 1916, upon the verdict of a jury for 15,500, and also from an order entered in said clerk’s office on the 14th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes. (See 176 App.

<p>Negligence — municipal corporations — duty of motorcycle policeman to use care when pursuing escaping automobile — injury to such officer by colliding with truck — evidence.</p> <p>A police officer on a motorcycle engaged in pursuit of an automobile, the operator of which has violated the speed regulations, must use ordinary care, although the speed ordinances do not apply to him when in the performance of his duty.</p> <p>Evidence in an action by such an officer for personal injuries sustained by colliding with defendant’s truck at a crowded street junction while in pursuit of a speeding car and proceeding at night at the rate of thirty-five miles an hour, examined and held, that a verdict in favor of the plaintiff was against the weight of the evidence, and that the complaint should be dismissed.</p>

<p>Corporations — pleading — sufficiency of complaint in action to compel directors to declare dividends fraudulently withheld from plaintiff in violation of express contract — authority of directors to determine amount of dividends — fraud — fiduciary relation of directors to stockholders — constructive fraud by directors — control of power and discretion of directors by agreement between themselves — Supreme Court — jurisdiction.</p> <p>A complaint which alleges that the plaintiff’s intestate and the two individual defendants had executed a written contract reciting that they owned all the capital stock of the defendant company in equal shares; that it was then worth a certain amount; that upon the death of any party to the agreement within five years his stock should become the absolute property of the other parties, the certificate to be retained by the personal representative of the deceased as security; that the survivor should pay therefor the amount stated in specified installments, and that pending payment “ all dividends that may be declared by the corporation and earned by virtue of the ownership of the certificate of stock,” etc., should be divided between the personal representative of the deceased and the survivors, in the proportion “ that their respective interests in the certificate in question bear to each other,” and which further alleges that after the death of plaintiff’s intestate defendants paid to plaintiff the first installment; that although since the time of the death of the plaintiff’s intestate the net earnings of the corporation have been very large, the defendants have refused to declare dividends in accordance with a scheme to withhold the earnings of the company until plaintiff’s stock shall be paid for and so defraud the plaintiff, states a cause of action.</p> <p>The authority of directors to determine what dividends shall be declared does not confer on them the power to commit a fraud.</p> <p>Directors hold a fiduciary relation to the stockholders.</p> <p>It is constructive fraud for directors to use their power for their own benefit. The exercise of the power and discretion of directors owning all the capital stock of a corporation may be controlled by valid agreement between themselves, where the interests of creditors are not affected.</p> <p>The Supreme Court has jurisdiction to compel the defendants, as directors, to declare dividends in order to prevent them from abusing their power to the injury of the plaintiff.</p> <p>Such an action may be maintained on the analogy of a suit for specific performance of the express contract between them.</p>

Certiorari issued out of the Supreme Court and attested on the 26th day of April, 1911, directed to James C. Cropsey, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police department of the city of New York.

Separate appeals by Kate Ludwig and another from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 23d day of May, 1916, denying probate to the instrument dated the 10th day of July, 1914, and offered as the last will and testament of Mary Hermann, deceased.

Appeal by the defendant, Laura Whitman, from a judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 25th day of March, 1916, affirming a judgment of the police justice of the village of Freeport, convicting the defendant of violating section 720 of the Penal Law.

<p>Appeal by the defendant, Garfield Worsted Mills, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of February, 1917.</p>

<p>Process — service of summons in this State on managing agent of foreign corporation — failure to use diligent efforts to serve officers.</p> <p>Where a foreign corporation, although not authorized to transact business in this State and not having designated a person upon whom service of process can be made, has an office in the city of New York where a sales manager transacts a continuous and permanent course of business, employing several agents to solicit and forward orders to it, which are filled from its plant in the foreign State, a summons in an action for services alleged to have been rendered may be served upon said sales manager as a “ managing agent; ” but said service is invalid where it appears that the plaintiff made no prior effort personally to serve in this State any of defendant’s officers mentioned in subdivision 1 of section 432 of the Code of Civil Procedure.</p> <p>Service of a summons upon the managing agent of a foreign corporation in this State can only be resorted to and made effectual as the commencement of an action against the corporation, in a court of this State, after diligent efforts to obtain personal service upon one of such officers therein has been made and failed.</p>

<p>Husband and wife — divorce — modification of decree as to custody, of child — evidence — effect of subsequent marriage of husband in foreign State — effect of subsequent marriage of wife — financial and social situation of parent — education of child — interest of child.</p> <p>Upon a reference on a motion for the modification of a decree of divorce as to the custody of an infant, unlimited investigation into the antecedents of the parties and their respective families during the period of their differences which culminated in their separation and final divorce, aside from the guilt of the defendant proven in the divorce action, does not tend to establish that as to moral and intellectual fitness, or in parental affection, either party in comparison with the other is unworthy to have the custody of the child, in whole or in part, but merely tends to prolong the reference.</p> <p>It is error on such a reference for the referee to exclude evidence establishing defendant’s guilt in the divorce action and showing its character as gross and continued, and not casual, temporary and exceptional.</p> <p>As a general rule, the custody of children of divorced parties, especially of the only child, will be given to the innocent party.</p> <p>The remarriage in another State of the defendant in a divorce action, contrary to the decree of divorce of the court of this State, does not impair his fitness to have or share in the custody of his only infant child, but where such marriage is to a concededly respectable and worthy woman, with whom he has lived an entirely exemplary life, it may to some extent increase his fitness.</p> <p>The remarriage of the plaintiff in a divorce action to an entirely worthy and respectable man does not diminish her just claim to the custody of her infant child.</p> <p>The fact that the defendant in a divorce action was financially able to provide his nine-year-old daughter and only child with better educational advantages and social opportunities than the mother could furnish where she lived, is not a sufficient ground for depriving her of the custody of the child.</p> <p>Where a divorced father has agreed to pay $500 per month for the maintenance, support and education of his nine-year-old daughter until she becomes fourteen years of age, and the court has ordered that she be allowed to visit with the father at a distant place at frequent intervals, the father’s request that his daughter have private instruction should be granted by the court, as attendance at any school, public or private, with such frequent interruptions would be utterly impracticable.</p> <p>Although the interest of the child is the paramount consideration upon the question of its custody, it is not the exclusive consideration, and the natural right of the parent is an impo taut factor, especially where it has not been forfeited by gross misconduct.</p>

Appeal by the defendant, Clarence Lawson, from a judgment of the County Court of Rockland county, rendered against him on the 22d day of October, 1915, convicting him of the crime of robbery in the first degree, and also from an order denying his motion to set aside the verdict and for a new trial, and in arrest of judgment.

Appeal by the defendants, Metropolitan Trust Company of the City of New York, as administrator, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of July, 1916, upon the decision of the court after a trial before the court without a jury. And also from two orders entered in said clerk’s office on the 28th day of July, 1916, and the 11th day of August, 1916, respectively.

Appeal by the defendant, Anne Kennedy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 6th day of July, 1916, upon the report of a referee appointed to hear and determine the issues.

.Appeal by the defendant, Addison Johnson, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 10th day of October, 1916, upon the decision of the court, a jury having been waived. The action is to recover for a breach of defendant’s covenants of seizin, quiet enjoyment and warranty, in his deed made May 20, 1902. Such deed granted lots 6 and 7 as shown upon a map referred to.

<p>Pleading — Justice’s Court — proceedings liberally construed — action against express company for ■ loss of goods — allegations on contract and in tort — waiver of tort — election of remedies — surplusage.</p> <p>If it is doubtful whether an action is brought in tort or on contract, every intendment is in favor of construing the complaint as setting forth a cause of action on contract on the theory that the tort has been waived. Proceedings in a Justice’s Court being informal, are to be liberally construed with a view to substantial justice.</p> <p>If a defendant is in doubt as to the nature of the cause of action it should appear before the justice and take proper steps to protect its rights.</p> <p>When the complaint is so uncertain that its exact meaning is not apparent, and it might be held to sound in tort or in contract, the court can compel an election by the plaintiff as to the theory upon which he will proceed. When a plaintiff serves a verified complaint with the summons in a Justice’s Court, and upon the return day appears in court and asks judgment under the provisions of the Code of Civil Procedure permitting judgment to be taken only in an action upon contract, he thereby makes his election. Where such a complaint alleges that the defendant express company undertook to carry goods for and deliver them to the plaintiff, and that it failed to deliver them as agreed, and further alleges on information and belief that the goods were lost through the negligence of the defendant, the court was justified in determining that the action was upon contract.</p> <p>The latter allegation as to the negligence of the defendant may be disregarded as surplusage.</p>

Certification by the State Industrial Commission to the Appellate Division, Third Department, of the following question: “ Was the said Charles White, the claimant herein, engaged in a hazardous employment within the' meaning of the Workmen’s Compensation Law at the time he received the personal injuries for which the award was made ? ”

Appeal by Maude Van Denburgh, as administratrix with the will annexed, from a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said Surrogate’s Court on the 5th day of October, 1916, allowing the claim of respondent against the estate.

Appeal by the defendant, Village of Dannemora, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 21st day of October, 1916, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the 26th day of October, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Boyd McDowell and others, as executors, from an order of the Surrogate’s Court of the county of Chemung, entered in the office of said Surrogate’s Court on the 22d day of April, 1916, directing that a supplemental citation issue and certain remaindermen be brought into the proceeding, also from a decree of said Surrogate’s Court, entered in the office thereof on the 17th day of November, 1916, settling the accounts herein, and also from a subsequent decree of said Surrogate’s Court entered in the office thereof on the 2d day of January, 1917, modifying the former decree.Appeal, by John G. McDowell and others from parts of the decree herein entered in the office of the Surrogate’s Court of the county of Chemung on the 2d day of January, 1917.</p>

Appeal by the relator, The New York Central Railroad Company, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 25th day of October, 1916, permitting the Ulster and Delaware Railroad Company ■ to intervene in this proceeding.

<p>Appeal by the defendant, The Town of Bethlehem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 1st day of September, 1916, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 11th day of September, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Charles R. Fleischmann, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 31st day of August, 1916, overruling a demurrer to the complaint.

<p>Appeal by the defendants, George D. Hewitt and others, from so much of an interlocutory judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Jefferson on the 24th day of July, 1916, as adjudges that the respondents are the owners in fee of the premises described in the complaint.</p> <p>The judgment was rendered upon the decision of the court after a trial at the St. Lawrence Special. Term and decreed the sale of certain real property in partition.</p>

Appeal by the defendant, American Fidelity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of June, 1916, upon the verdict of a jury.

Appeal by the defendants, William Wardell 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 Cayuga on the 3d day of November, 1915, upon the decision of the court after a trial before the court without a jury, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 29th day of March, 1915.

Appeal by the defendants, Charles B. Towns Hospital 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 Nassau on the 28th day of March, 1916, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Transit Development Company, from a judgment of a Court of Special Sessions held by a city magistrate of the city of New York rendered on the 23d day of October, 1916, convicting the defendant of violating section 8a of article 2 of the Labor Law. (See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 8a, added by Laws of 1913, chap. 740, as amd., by Laws of 1914, chaps. 388, 396, and Laws cf 1915, chaps. 321, 357, 648.)

<p>Appeal by the plaintiff, Fred R, Butterfield, from a decision and judgment of the Court of Claims, entered in the office of the clerk of said court on the 8th day of June, 1916, dismissing his claim.</p>

Appeal by the defendant, The City of Buffalo, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of said county on the 31st day of October, 1916, upon the verdict of a jury for $1,350, and also from an order entered in said clerk’s office on the 13th day of November, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office- of the clerk of the county of Erie on the 13th day of October, 1916, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Eminent domain — elimination of grade crossings, city of Utica — right of adjoining owner to damages — mandamus to compel condemnation — effort to purchase easements is prerequisite.</p> <p>By virtue of section 99 of the Second Class Cities Law a landowner in the city of Utica is entitled to damages consequent upon the change of grade -in the city street made to eliminate a railroad grade crossing.</p> <p>But a peremptory writ of mandamus commanding the commissioner of public works of the city to institute condemnation proceedings to determine the damages sustained by a landowner by reason of such change of grade should not issue until said commissioner has made an effort to acquire the rights by purchase pursuant to the provisions of section 92 of the Railroad Law, for it is only in case that he is unable to effect such purchase that he may proceed to condemnation.</p> <p>Appeal bythe defendant, Harry R. Hayes, as commissioner, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 16th day of December, 1916, granting a peremptory writ of mandamus commanding the defendant to institute condemnation proceedings to determine the amount of damages sustained by the relator by reason of the change of grade of Pleasant street in the city of Utica, adjoining the lands of relator so as to eliminate the grade crossing of that street by the tracks of the New York, Ontario and Western Railroad Company, pursuant to an order of the Public Service Commission.</p>

<p>Negligence — injury by steam shovel — alleged intoxication of operator — evidence not justifying recovery.</p> <p>Action to recover for personal injuries caused by the operation of a steam shovel, the defendant’s liability being predicated upon the intoxication of the employee who was operating the machine. Evidence examined, and held, that a judgment for the plaintiff should be reversed because plaintiff’s evidence as to the intoxicated condition of the defendant’s servant was inherently improbable and unworthy of credence and because the evidence to the contrary was overwhe ming.</p>

Appeal by the defendant, R. F. Stevens Company, Inc., from a judgment of the Municipal Term of the Court of Special Sessions of the City of New York, borough of Brooklyn, Part II, rendered against it on the 22d day of January, 1917, convicting it of violating section 8a of article 2 of the Labor Law, in operating a factory for pasteurizing and bottling milk on Sunday, in that it required one Daniel Callaghan to work in the pasteurizing department, without posting and. filing…

Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from that part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of February, 1917, amending two prior orders so as to grant defendant’s motion for a new trial on the ground of newly-discovered evidence, which prescribes as a condition for the granting thereof the following provision, viz.:…

<p>Workmen’s Compensation Law — admissibility of hearsay evidence as to accidental injury — evidence as to death of superintendent of construction on barge canal, resulting from peritonitis caused by fall — presumption.</p> <p>Hearsay evidence as to whether or not a decedent had suffered an accidental injury sufficient to warrant an award under the Workmen’s Compensation Law is admissible in the discretion of the State Industrial Commission.</p> <p>Where the death of a superintendent of construction of a section of the barge canal resulted from acute peritonitis, which might have been caused by the rupture of the appendix, and there was no eye witness of the happening of the alleged accident, and it was not confirmed by any marks upon the skin or by other external sign, and the sole evidence of its occurrence was found in the employer’s first report of the injury and in the hearsay evidence of the wife, son and attending physician of the deceased that he said that his foot slipped while he was attempting to climb out of the prism of the canal, and that he fell down the bank, striking his abdomen, causing severe pain, and that he told his wife that “ something-broke inside,” the State Industrial Commission was justified in finding that the deceased sustained an accidental injury sufficient to warrant the making of an award.</p> <p>The presumption created by section 21 of the Workmen’s Compensation Law was not overcome by substantial evidence.</p>

Appeal by the defendants, Sherwood Shoe Company and another, from an award of the State Industrial Commission, entered in the Albany office of said Commission on the 9th day of November, 1916.

<p>Conservation Law — levy and collection of moneys expended by Conservation Commission in fighting fires — mandamus to compel supervisor to pay over such moneys to Conservation Commission — constitutional, law — parties entitled to raise constitutional question.</p> <p>Where a board of supervisors proceeding under the Conservation Law has levied the sum claimed by the Conservation Commission to be due from the town for the expenditures made by the Commission in fighting fires in said town, and such money has been duly collected and paid over to the supervisor, he may be compelled by a writ of peremptory mandamus, issued on the application of the Attorney-General, to pay over such moneys to the Conservation Commission.</p> <p>A constitutional question may be raised only by a person whose rights are involved.</p> <p>The supervisor being a mere custodian of moneys raised in regular form for a particular purpose, has no authority to question the propriety or the legality of the expenditures underlying the levy and collection of the taxes.</p> <p>Questions as to the liability of the town for expenditures made by the Conservation Commission in fighting fires should have been raised in connection with the assessment and levy of the tax.</p>

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

Appeal by the plaintiff, Augustus Mayer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 25th day of September, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Canal Law, section 146, construed — action by laborer on bond of contractor — time of commencement of action.</p> <p>The provision of section 145 of the Canal Law, requiring a contractor’s bond that the contractor shall pay “ at least once each month,” is for the benefit of the laborer, and the provision that “ no action shall be maintained against the sureties unless brought within thirty days after the completion of the labor ” is for the benefit of the surety, and such provisions must be construed and harmonized with reference to the manifest purpose of each.</p> <p>Although a laborer may maintain an action once in each month for his compensation, he is not required to do so. All that a surety can require is that the action shall be instituted within thirty days after the completion of the labor.</p>

Appeal by the plaintiff, George W. Groves, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 6th day of October, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case. On December 10, 1915, the plaintiff as party of the first part made a written contract with the defendant as party of the second part to said contract.

Appeal by the defendant, The Order of United Commercial Travelers of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 24th day of May, 1916, upon the decision of the court after a trial before the court without a jury.

<p>Workmen’s Compensation Law — when employee, injured while installing engine for paper manufacturer, not engaged in a hazardous employment.</p> <p>Where a person in the business of moving heavy machinery was engaged by a paper company carrying on a hazardous business within the meaning of group 15 of section 2 of the Workmen’s Compensation Law, to install an engine, he was not engaged in a hazardous employment within said provision of the statute, nor is he entitled to avail himself of the provisions of group 42 of said section, which specifically includes the installation of “ engines or heavy machinery.”</p> <p>The paper company did not carry on the occupation of installing engines or heavy machinery for a pecuniary gain within the meaning of subdivision 5 of section 3 of the statute.</p>

Appeal by the claimant, Philip Pavia, from a decision of the State Industrial Commission, made on the 27th day of July, 1916, denying his- application for leave to withdraw his claim for compensation herein.

Appeal by Boomhower Grocery Company and another from an award of the State Industrial Commission, made on the 22d day of November, 1916, affirming a prior award made on the 13th day of June, 1916.

<p>Workmen’s Compensation Law — hazardous employment — weighing hides constituting cargoes unloaded from vessels — accidental injury — injury to employee from anthrax germs while handling hides.</p> <p>An employee engaged in weighing hides on piers, which hides constitute cargoes or parts of cargoes unloaded from vessels, is engaged in a hazardous employment within the meaning of group 10 of section 2 of the Workmen’s Compensation Law.</p> <p>Such an employee who, while handling dirty and diseased hides, was infected by anthrax germs through an abrasion in his hand, previously sustained while handling hides covered with wet salt, sustained an accidental injury within the meaning of subdivision 7 of section 3 of the statute.</p> <p>Moreover, because of the previous abrasion on the hand of the employee, the disease or infection caused by the anthrax germ may be deemed “ such disease or infection as may naturally and unavoidably result from such injury within the meaning of the statute.”</p>

Appeal by the plaintiff, Outcault Advertising Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 24th day of May, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Clinton D. Riegel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 6th day of September, 1916, upon the decision of the court dismissing the complaint on the merits after a trial before the court, a "jury having been waived.</p>

Appeal by the defendant, The State of New York, from an order and determination of the Court of Claims, entered in the office of the clerk of said court on the 22d day of May, 1916, awarding claimant the sum of $465.

Appeal by the defendant, Louis M. Ream, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Rensselaer on the 14th day of November, 1916, resettling a prior order entered in said clerk’s office on the 30th day of October, 1916, setting aside and vacating and declaring void and of no effect the judgment herein, entered on the 16th day of January, 1912, annulling a marriage between the parties.

Appeal by the defendants, Spencer G. Prime and John F. O’Brien, appearing specially, 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 Essex on the 4th day of February, 1916, vacating and setting aside a stipulation and agreement heretofore made herein and the judgment heretofore entered in this action and declaring void and canceling of record certain deeds, and also from an order entered in said…

<p>Conservation Law — violation of section 185 — action to recover penalty for refusal to exhibit hunting license — pleading — complaint— failure to allege exception in statute.</p> <p>A complaint in an action to recover a penalty for a violation by the defendant of section 185 of the Conservation Law, in refusing to exhibit his hunting license is insufficient, where it does not allege that the defendant was not one óf the persons excepted by the statute from the duty of procuring a license.</p> <p>As the statute limits the requirement for a license to persons who are not the owners or lessees of farm land and in possession of the same, if the defendant was in fact the owner or lessee of farm land on which he was hunting and in possession of the same, he was not bound to have the license at all and could not be subject to the penalty prescribed. Kellogg, P. J., and Lyon, J., dissented.</p>

<p>Insurance — action on fire insurance policy — defense — fraud — discrepancy between itemized statement of loss and plaintiffs’ inventory and sales book — verdict not against weight of evidence — instructions — question as to amount of recovery.</p> <p>In an action to recover upon a standard fire insurance policy issued by the defendant, the defense of fraud was interposed and it was claimed that the itemized statement of the goods damaged and destroyed by the fire did not harmonize with the plaintiffs’ inventory and sales book, nor with the inventory made by the defendant, but the evidence showed practically as many and as far-reaching errors against the plaintiffs’ interests as against those of the defendant.</p> <p>Held, that with the presumption in favor of honest and fair dealing, it cannot be said that the verdict in favor of the plaintiffs is against the weight of the evidence.</p> <p>As the plaintiffs sued to recover only the defendant’s portion of the total insurance, defendant’s request that the jury be asked to determine the total amount of the loss, does not raise the question of amount of recovery, especially since there was no exception directly to the charge of the court that if the defense of fraud was not established the plaintiffs were entitled to the full amount of the policy.</p>

Appeal by the defendant, Bernard J. Farrell, 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 Schoharie on the 31st day of October, 1916, denying his motion to change the place of trial herein from Schoharie county to Rensselaer county.

Appeal by the Albany Guardian Society and Home for the Friendless from so much of a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 27th day of November, 1916, as ’directs the testamentary trustee to transfer and pay over to Frederick C. Watson, as administrator, certain moneys.

<p>Appeal by the defendant, The Hilton-Dodge Transportation Company, from an award of the State Industrial Commission, entered in the office of said Commission on the 11th day of September, 1916.</p>

<p>Appeal by the defendant, George W. Perkins, as president, from an order of the County Court of Albany county, entered in the office of the clerk of said county on the 6th day of January, 1917, affirming a judgment of the City Court of Albany, and also from the judgment entered in said clerk’s office on the same day pursuant to said order.</p>

<p>Appeal by the defendants, G. M. Wood, Jr., and another, from an award of the State Industrial Commission, made on the 14th day of March, 1916.</p>

Appeal by the defendants, Morton Amusement Company, Inc., 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 Erie on the 25th day of May, 1916, upon the verdict of a jury for $1,500. ' The appellant appeals from the whole of said judgment including the part thereof which dismissed the complaint upon the merits as against the defendants, Charles Shaffer and another, and also from an order entered in…

<p>Appeal by the defendant, The Lehigh Valley 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 Monroe on the 20th day of July, 1916, upon the verdict of a jury for $10,150, and also from an order entered in said clerk’s office on the 22d day of June, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Johanna Boland, from an order of the County Court of Onondaga county, entered in the office of the clerk of said county on the 19th day of December, 1916, affirming a judgment of the Municipal Court of the City of Syracuse in plaintiff’s favor and also from the judgment entered in said clerk’s office on the 19th day of December, 1916, affirming said Municipal Court judgment pursuant to the order appealed from.</p>

Appeal by the defendants, William H. Wellington Knipe and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1917, continuing an injunction pendente lite restraining the alleged violation of a restrictive covenant.

Appeal by the plaintiff, The Frohman Amusement Corporation, from a judgment of the Supreme Court in favor of the defendant, enteréd in the office of the clerk of the county of New York on the 11th day of November, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Husband and wife — failure of husband to support wife — conviction as disorderly person — interlocutory decree of divorce and separa- , tion agreement no bar to proceeding.</p> <p>An interlocutory judgment for absolute divorce does not terminate the marriage of the parties, and they remain husband and wife until the entry of the final decree.</p> <p>A wife who has obtained such interlocutory judgment, but has not entered final judgment is not debarred from instituting a proceeding- under section 685 of the charter of the city of New York against her husband as a disorderly person because of his failure to support her.</p> <p>Neither is such proceeding debarred because the parties had previously entered into a formal separation agreement in which the husband agreed to pay a certain sum for the wife’s support, if he has failed to fulfill his agreement.</p>

Appeal by the defendants, Grace Felix Lesster 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 27th day of April, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1916, denying defendants’ motion for a new trial made upon the minutes.

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 7th day of December, 1916, reversing a prior order , fixing the transfer tax herein.

Appeal by the plaintiff, Frederic Foyle Nugent, 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, denying his motion to dismiss the fourth counterclaim contained in the amended answer of the respondent and overruling his demurrer thereto.

<p>Sale — delivery of goods after time set therefor — waiver of time limit set for performance —■ subsequent refusal of vendor to deliver balance of goods.</p> <p>Although goods to be delivered under a written contract of sale were, by the terms of the contract, to be taken by the vendee "within six months, where as a matter of fact the time limit was not insisted upon by either party and the vendor, after the expiration thereof, delivered installments of the goods which were accepted by the vendee, there was a waiver of the time limit, and the vendor when sued for a subsequent refusal to complete the contract cannot escape liability for the breach on the theory that it was at liberty to repudiate the contract at any time subsequent to the expiration of the six months’ period and to demand a higher price for the balance of the goods.</p> <p>Where the continuance of the performance of a contract is permitted after the expiration of the period of performance, the party who might have elected to insist upon the performance within the time agreed upon is deemed to have waived the time for performance and if he thereafter desires to limit the time for performance it is incumbent upon him to give notice requiring performance within a reasonable time. Such rule is binding equally upon vendor and vendee.</p>

Appeal by the defendants, Theodore S. Holbrook 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 17th day of February, 1917, overruling the separate demurrers of certain of the defendants to the complaint.

Appeal by the plaintiff, The Creamery Package Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 26th day of January, 1917, upon a decision of the court dismissing the complaint on the merits after a trial before the court without a jury. The action was brought to recover damages -resulting from the alleged conversion of a silo.

Appeal by the defendant, Nanning V. Lasher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 2d day of October, 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 7th day of December, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Will — construction — when terms “nephews and nieces’’ do not include grandnephews and grandnieces — gift by implication.</p> <p>The terms “ nephews and nieces ” in their primary and ordinary sense do not include grandnephews and grandnieces or more remote descendants unless there is something in the will to show that the words were used in the broader sense.</p> <p>Where a will by express terms in different clauses gives property to the “ nephews and nieces ” of the testatrix, and the language used is not of a doubtful or uncertain effect, the other parts of the will cannot be resorted to to determine the meaning of said words.</p> <p>Provisions of a will examined, and held, that it was the intention of the testatrix to use the terms “ nephews and nieces ” in their primary and ordinary ' sense, and that said terms did not include the children of a deceased nephew.</p> <p>In order to support a gift by implication, the inference from the will of the intention must be such as to leave no hesitation in the mind of the court and to present no other reasonable inference.</p>

Appeal by the defendant, William J. Baker, from a judgment of the County Court of Warren county, entered in the office of the clerk of said county on the 18th day of September, 1916, upon the decision of the court after a trial before the court without a jury. The action was brought to recover possession of fifteen sheep or the value thereof, together with damages for the alleged wrongful detention of the same by the defendant.

Appeal by the plaintiff, The Hagedorn-Merz Co., from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Sullivan on the 29th day of May, 1916, denying plaintiff’s motion for an order striking out the portion of the answer herein which denies “ each and every other allegation contained in said complaint, except as hereinafter admitted, qualified or explained ” as frivolous and for judgment on the pleadings.

Appeal by the plaintiff, Katz Underwear Company, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Sullivan on the 29th day of May, 1916, denying a motion to strike out paragraph “ second of the answer as frivolous and for judgment on the pleadings.

<p>Insurance — life insurance — Insurance Law, section 92, construed — sufficiency of notice of forfeiture — reference to right to paid-up policy — limitation of action to enforce agreement for reinstatement of policy after forfeiture.</p> <p>It was not intended by section 92 of the Insurance Law to require a specification in a notice of forfeiture of a privilege that did not exist in the insurance policy, and, hence, an omission of a reference in the notice to a right to a paid-up policy is immaterial where there was no such right under the policy in question.</p> <p>The effect of the provision of said section that “No action shall be maintained to recover under a forfeited policy unless the same is instituted within two years from the day upon which default was made in paying the premium, instalment, interest or portion thereof, for which it is claimed that forfeiture ensued,” is that where the policy has in fact been forfeited and it is claimed that the insured has become entitled to have it reinstated by reason of a subsequent agreement or otherwise, the agreement to reinstate it must be made effective by a decree of the court reinstating the policy, or else the action to enforce it on the theory that by the agreement it became reinstated, notwithstanding the forfeiture, must be commenced within the time specified in the statute.</p> <p>It was competent for the Legislature to prescribe a statutory limitation with respect to the bringing of actions on policies thereafter forfeited.</p>

Appeal by the defendant, The Underpinning and Foundation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of May, 1916, upon the verdict of a jury for $5,500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Steinway & Sons, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1917, granting plaintiff’s motion for judgment on the pleadings, consisting of a complaint, an amended answer and a demurrer thereto.

Cross-appeals by the plaintiffs, William Knight and others, and by the defendant, The Delaware and Hudson Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of September, 1914,-upon the report of a referee appointed to hear and determine the issues.

<p>Appeal by the plaintiff, Frank H. Hubbard, 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 7th day of December, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the plaintiff, Eugene Lamb Richards, as Superintendent of Banks, from so much of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 24th day of June, 1915, as dismisses the complaint upon the merits as against the defendants Louis I. Baron and others upon the decision of the court after a trial at the New York Special Term, and also from so much of the final judgment entered on…

Appeal by Gertrude L. Amend from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 12th day of December, 1916, adjudging that the trust contained in the fourth paragraph of the will of said deceased is valid and effective and also directing the executors to transfer to themselves as trustees certain stock.

<p>Appeal by the plaintiff, William. M. O’Connor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1916, denying his motion for judgment on the pleadings consisting of a complaint and the answer thereto.</p>

<p>Disciplinary proceedings instituted by the County Lawyers Association.</p>

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

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

<p>Attorney at law suspended for conversion of moneys delivered to him" for use in paying referee’s fees — circumstances not excusing misconduct — intent to repay, no excuse.</p> <p>Attorney at law suspended from practice for converting to Ms own use moneys paid to Mm to be deposited with a referee in payment of the' latter’s fees and disbursements, so as to secure the delivery of the referee’s report.</p> <p>Failure to so apply such money is not excused by the fact that a doubt existed in the mind of the attorney and Ms associate as to the soundness of the referee’s conclusions, and by the fact that pending disciplinary proceedings had disrupted Ms business and left Mm in a higMy agitated state of mind.</p> <p>Under no circumstances is an attorney warranted in using Ms client’s money as Ms own, and an intent to repay is no excuse for such misconduct.</p>

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

<p>Corporations — right of directors and officers to compensation — excessive salaries — right of directors to declare dividends as salaries — judgment creditor’s action against directors — consideration for issuance of stock — disbursements not in violation of Stock Corporation Law, section 66, where corporation solvent — extent of liability of directors for impairment of capital stock in violation of Stock Corporation Law, section 28.</p> <p>It is not unlawful for the sole stockholders of a corporation, who are also its directors, to take from its earnings a reasonable amount for their services, aside from their failure to pay in and retain unimpaired the capital stock.</p> <p>Even when excessive salaries have been voted to themselves by said directors, but in good faith and without intent to defraud creditors, they may be allowed to retain such part thereof as will reasonably compensate them for their services for the performance of which others might have been employed.</p> <p>In an action by a judgment creditor of a corporation who had sold property of the corporation on which he held a chattel mortgage, the interest on which had not been paid, resulting in a deficiency judgment, brought under sections 90 and 91 of the General Corporation Law to compel the officers and directors to account to a receiver to be appointed on the theory that disbursements of money made by the defendants to themselves, as salaries, which for that reason were voidable at the instance of the corporation, may be avoided by its creditors on the ground that the capital of the corporation was thereby impaired in violation of section 28 of the Stock Corporation Law, a judgment cannot be sustained under section 55 of the Stock Corporation Law, although the stock was issued without consideration, because a violation of said section was not alleged and the complaint was not so amended, and for the further reason that the liability of each of the defendants on that theory would be limited by section 56 of the Stock Corporation Law to the capital stock received by him.</p> <p>The issuance of capital stock in consideration of services to be performed in the future is unauthorized by section 55 of the Stock Corporation Law.</p> <p>A judgment in such an action cannot be sustained under section 66 of the Stock Corporation Law on the theory that all disbursements subsequent to default in paying interest on the plaintiff’s mortgage after demand were in violation of the provisions of said section, where the company was not financially embarrassed when it made default.</p> <p>Under chapter 354 of the Laws of 1901, amending what is now section 28 of the Stock Corporation Law, the liability of directors on the ground that the capital of the corporation has been impaired is confined to the loss sustained by the corporation or its creditors by the wrongful declaration and payment of dividends.</p> <p>Page, J., and Clarke, P. J., dissented, with opinion.</p>

<p>Corporations — when indorsee of check drawn by treasurer of corporation payable to his own order is put on inquiry as to treasurer’s authority — liability of corporation on check drawn by treasurer payable to his own order — duty of bank having deposit of corporation to inquire as to the authorization of treasurer to draw checks — negligence of corporation in failing to audit canceled checks.</p> <p>Where the treasurer of a corporation, by a resolution of its board of directors, was “ empowered to execute contracts or other obligations, sign or endorse cheeks, notes or drafts, and otherwise perform the usual duties pertaining to the office of treasurer,” and a copy of said resolution was on file with the bank where the corporation had its account, and on May fifth of the same year the treasurer applied at the office of a steamship company for a passage ticket on one of its steamships to sail August thirteenth, for a party of several persons, and made a deposit, and on June fifteenth delivered to the steamship company in payment of the balance for the ticket a cheek of the corporation for $500 drawn upon its bank by himself as treasurer, payable to his own order and indorsed by him to the order of the steamship company, and said company did not make any inquiry of the corporation as to the business and purpose for which said check was used by its treasurer, further than to make a prompt presentation thereof to the bank upon which it was drawn, and no demand for the return of the money represented by said cheek was made upon the steamship company until May 16, 1916, said company was put on inquiry as to the treasurer’s authority to negotiate the cheek in payment of his personal indebtedness, not because it was payable to his own order, but because the circumstances clearly indicated that the transaction was for his personal benefit and because said company participated in the diversion by using the check in its own business and for its profit.</p> <p>But since the corporation permitted its canceled checks to be returned to the treasurer who drew them, and since if they had been properly audited the diversion would have been discovered in time to enable the company to cancel the ticket, the corporation, its negligence having enabled the dishonest treasurer to perpetrate the fraud, must stand the loss.</p> <p>A bank is not bound to inquire for the authorization of the treasurer of a corporation to draw the corporation’s check to his own order when there is on file with it a resolution of the board of directors of such corporation giving the treasurer the usual general authority to draw and indorse checks.</p> <p>Where there are any circumstances indicating that a check is being used or is intended to be used for the officer’s personal benefit, or where the bank in any way participates in the diversion to its own benefit, the duty of inquiry exists, but the rule should not be unreasonably extended so as to clog business, especially since corporations may easily protect themselves by strictly limiting the authority given to draw and indorse their checks.</p>

Appeal by the defendant, Anna S. Sees, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 20th day of October, 1916, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 28th day of October, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Margaret A. Thompson, 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 24th day of January, 1917, granting defendant’s motion for judgment on the pleadings, consisting of a complaint and the answer thereto.

Appeal by the defendant, Cross & Brown 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 Suffolk on the 4th day of December, 1916, overruling a demurrer to the complaint.

Appeal by the plaintiff, Jacques Lebaudy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of December, 1916, fixing the lien of the respondent, plaintiff’s former attorney, at the sum of $6,730.

Appeal by the plaintiff, Burns Bros., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of November, 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 20th day of November, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Trust — deed transferring stock to trustees for benefit of corporation — trust period not measured by lives — unlawful suspension of power of alienation — grantor entitled to decree declaring deed void and requiring trustees to account for dividends, etc.</p> <p>A deed whereby the owner of stock of a mining corporation conveyed the same in trust to be held by the trustees for the benefit of the stockholders of the corporation, to be disposed of from time to time by a vote of the directors, the dividends thereof to be paid into the treasury of the corporation, unless the same should become insolvent or bankrupt, with power in the trustees to vote upon said stock in their absolute discretion, the dividends, however, in case of the insolvency of the corporation, to be applied as the trustees in their discretion might deem to be for the best interests of the stockholders, with a right in the trustees to sell the stock in their discretion and to apply the proceeds as aforesaid, creates a trust which imposes active duties upon the trustees, and they were not a mere channel of conveyance to vest an absolute property in the beneficiary.</p> <p>Hence, where the duration of said trust is not measured by lives there is an unlawful suspension of the power of alienation beyond the period allowed by the statute, and the grantor is entitled to a decree declaring the deed null and void and requiring the trustees to deliver the stock to him together with dividends which have been received by them.</p>

Motion by the defendant, The New York Edison Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the rendition of a verdict in plaintiff’s favor by direction of the court upon a trial at the New York Trial Term in April, 1916.

Cross-appeals by the plaintiff, Henry F. Schwarz, as trustee, and by the defendant Samuel Silk, 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 April, 1917, resettling a prior order and directing a receiver of the rents and profits in a foreclosure action to pay over certain rents to a tenant and refusing to allow the tenant to attorn to the receiver and collect and…

Appeal by the defendant, Mirror Films, Inc., from a determination and order' of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 14th day of February, 1917, reversing a judgment in the Municipal Court of the City of New York for the third district, borough of Manhattan, in favor of the defendant and granting judgment for the plaintiff.

<p>Appeal by the defendants, Donald H. Elder 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 Queens on the 28th day of December, 1916, upon the verdict of a jury for SI,000, and also from an order entered in said clerk’s office on the 5th day of March, 1917, denying defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the City of New York from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of July, 1916, as disallows a deduction from the award of any assessment levied against the property of petitioner not taken.

Appeal by the defendants, Patrick J. Shelley and others, in each of the above actions, from determinations and orders of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Kings on the 29th day of December, 1916, affirming in each case the judgment of the Municipal Court of the City of New York, borough of Brooklyn, third district, in plaintiff’s favor.

Appeal by the defendant, Samuel Simon, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 18th day of December, 1916, convicting him of the crime of grand larceny in the second degree.

Appeal by the defendant, Philadelphia and Reading Coal and Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of November, 1916, sustaining a demurrer to certain defenses contained in the answer.

Appeal by the defendants, Cyrus Y. Washburn and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of October, 1916, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 2d day of November, 1916, denying defendants’ motion for a new trial made upon the minutes.

<p>Ships and shipping — distinction between liability of wharfinger for merchandise and where he rents wharfage privilege — when wharfinger not liable for theft of motor boat — evidence —■ custom of other wharfingers.</p> <p>The liability of a wharfinger quoad merchandise, a familiar kind of bailment, is quite different from the liability of a wharfinger charging “ wharfage,” which latter is like rent — a compensation for the use and occupation of a pier or bulkhead.</p> <p>Thus, the owner of a marine dock or basin is not liable for the theft of a motor boat where the owner merely rented the privilege of mooring the craft in the basin and fastened it with a padlock of which he kept the key and where he was accustomed to take the boat from the basin whenever he desired without notifying the defendant of his departure or return, especially so where the complaint merely alleges a demand and refusal after the launch had been stolen, and does not plead any fault or negligence of the defendant.</p> <p>In such action defendant’s proof of usage in other yacht basins was competent on the issue of an implied contract.</p>

<p>Appeal by the defendant, Hannibal J. de Mesa, 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 Dutchess on the 23d day of April, 1917, denying a motion to change the place of trial from Dutchess county to New York county for the convenience of witnesses and to promote the ends of justice.</p>

<p>Will construed — gift to widow for life with remainders to nephews and nieces — when remainders not vested but contingent upon remaindermen surviving widow — foreclosure — distribution of surplus.</p> <p>A will by which the testator gives his estate to his widow for life and at her death directs his property to be converted into cash and the proceeds divided between Ms nieces and nephews and the survivor or survivors of them, share and share alike, and to their “ heirs and assigns forever,” does not give to the Meces and nephews a vested remainder in the realty during the lifetime of the widow.</p> <p>As there was a direction to pay or divide the estate at a future time there was no immediate gift, and the vesting of the remainders in the beneficiaries does not take place until the time of the division arrives.</p> <p>The nfie against a construction wMch will disinherit heirs is usually applied to those nearer in blood than grandnephews and grandMeees and rests upon the presumption that the testator intends a bounty to Ms descendants.</p> <p>Hence, the descendants of nephews and Meces who died before the widow are not entitled to share in a distribution of surplus arising on a sale on foreclosure.</p> <p>The will will be construed as aforesaid although the testator devised to “ the heirs and assigns ” of the nephews and Meces.</p>

<p>Appeal — trial — when dismissal of complaint should not be made upon merits — debtor and creditor — suit to set aside fraudulent conveyances — evidence — mortgage upon property conveyed executed after conveyance. — evidence of fraudulent intent — lis pendens — cancellation of notice.</p> <p>An appeal does not lie from a decision of the court, but only from the judgment which carries it into effect.</p> <p>But on appeal from an “ order ” which dismisses the complaint for failure of proof at trial the court may treat the appeal as one taken from a judgment.</p> <p>Where a complaint was dismissed at .the end of the plaintiff’s case it was error for the court to make findings of fact upon issues as to which the defendants had the burden of proof and which were not tried.</p> <p>The judgment should be one of nonsuit where the defendants moved to dismiss the plaintiff’s case without announcing that they rested, and no findings of fact or determination on the merits should have been made.</p> <p>In a judgment creditor’s action to set aside a conveyance alleged to have been fraudulent it was error for the court to exclude evidence offered by the plaintiff to show that after the conveyance the defendants gave two chattel mortgages to other parties on the property conveyed. This because proof of contemporaneous conveyances, no matter to' whom made, is always relevant to an issue of fraudulent conveyance.</p> <p>Evidence of the circumstances under which conveyances are made and the consideration paid therefor, is also relevant on the issue of fraudulent intent.</p> <p>In granting the nonsuit it was error to cancel the plaintiff’s notice of pendency of action before the time to appeal had expired or pending the appeal, for in such action the notice can only be canceled by order of the court upon payment into court, or upon giving the security required by section 1674 of the Code of Civil Procedure.</p>

Appeal by the defendants, Walter Keys and others, as assessors, from part of the 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 1st day of June, 1917, adjudging certain realty exempt from taxation.

Separate appeals by the defendants, Julius M. Cohen, as owner, and Frank Klein, as contractor, from a judgment of the' Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Westchester on the 10th day of June, 1916, upon the decision of the court after a trial at the Westchester Special Term, in an action to foreclose a mechanic’s hen.

<p>Negligence — liability of orphan asylum for negligence resulting in choice of incompetent, unskillful and careless servants — trial — failure of counsel in opening to refer to essential allegations of complaint — erroneous nonsuit.</p> <p>The general principle protecting public institutions such as orphan asylums from liability in actions for negligence does not include their negligence resulting in the choice of incompetent, unskillful and careless servants.</p> <p>The fact that in an action against such an institution the counsel for the plaintiff in his opening omitted to refer to allegations that the defendant in disregard of its duties negligently, carelessly and recklessly hired and furnished to the plaintiff incompetent, unskillful and careless superintendents, agents, teachers, guides and employees and that plaintiff’s injuries were sustained by reason of such negligence, recklessness and wrongful conduct of the defendant, does not warrant the dismissal of the complaint.</p> <p>But, it seems that, if counsel had stated that he had abandoned said charge or had admitted that he could not establish it or if such change of attitude had been elicited by inquiry of the court or of his opponent or in consequence of the affirmative assumption of the latter, then the complaint might properly have been dismissed.</p>

Appeal by the defendant, Central Railroad of New Jersey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d 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 31st day of May, 1916, denying defendant’s motion for a new trial made upon the minutes. • '

Appeal by the defendants, Charles R. Price and another, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 18th day of June, 1915, confirming the report of commissioners of appraisal herein, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 3d day of June, 1914, determining that plaintiff is entitled to take defendants’…

<p>Public officers — vacancies—when term of sheriff chosen at special election commences to run — mandamus — term “ on or about ” defined.</p> <p>The term of a sheriff chosen at a special election to fill a vacancy commences to run from the daté of his election, notwithstanding the provision of section 180 of the County Law that there shall continue “To be elected in each of the counties a sheriff, * * * four coroners, * * * who shall respectively hold their offices for three years from and including the first day of January, succeeding their election.”</p> <p>Said provision of the County Law does not refer to an officer chosen to fill a vacancy, whether at a special or general election, but to the term of an officer chosen in regular course at a general election in November. It contemplates the beginning of the political year as prescribed by section 6 of article 10 of the Constitution.</p> <p>The paramount aim of the Constitution and the statutes is to secure the filling of vacancies in elective offices by election at as early a day as is practicable.</p> <p>Hence, where an under sheriff was chosen sheriff at a special election on January twenty-third, received his certificate on or about January thirtieth, and on February sixth swore to his oath of office, which was filed on February seventh, the day after his undertaking was officially received, and, in an application for a peremptory writ of mandamus to compel the audit of the payroll for his salary as under sheriff and acting sheriff, alleged in his affidavit that “ on or about the fifth day of February, 1917, your petitioner, as acting sheriff of said county of Queens, duly certified the payroll,” an order denying said writ should be affirmed as his affidavit is not sufficient to establish that he certified the payroll on February fifth so as to exclude February sixth, when he took the official oath and his bond was received, or February seventh, when the oath was filed.</p> <p>The term “ on or about ” is with regard to time a relative term sufficiently definite in certain connections but rendering the statement which it modifies insufficient for purposes to which definite accuracy is requisite.</p>

<p>Discovery of books and papers of corporation — when proper in action to recover percentage of profits due for services.</p> <p>An employee of a corporation who brings an action at law to recover a certain percentage of its net earnings as compensation is entitled to a discovery and inspection of its books containing its business transactions within the period embraced within the cause of action, which tend to establish its net profits for said period.</p> <p>The fact that the plaintiff demanded judgment for such sum in excess of a certain amount which an accounting may determine him entitled to, does not change the action from one at law to one in equity. Nor does the fact that the contract was denied deprive the plaintiff of his right to a discovery.</p>

Motion by the plaintiff, Benjamin F. Woody, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint at the opening of a trial before a court and jury at the Kings County Trial Term in February, 1917.

Appeal by the plantiff, Anthony Lorenzo, as administrator, 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 19th day of March, 1917, dismissing the complaint by direction of the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 14th day of March, 1917, setting aside the verdict of the jury in plaintiff’s favor for $1,500, dismissing…

<p>Appeal by Helena Caroline Wilson, individually and as executrix, and another, from an order of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 20th day of April, 1917, confirming a previous order fixing the transfer tax herein.</p> <p>Mr. John P. Moebus died July 23, 1916, leaving personal property held jointly with his wife — a checking account in both names in the Mount Vernon Trust Company, and eight mortgages running to both the husband and wife. They also held land at Mount Vernon, as tenants by the entirety, valued at $10,300. Other land at Yonkers had been thus held, but when Mr. Moebus died there was outstanding a written contract of May second, which covenanted to give the purchaser a conveyance of same on or before May 1, 1917, at a net price of $5,300.</p> <p>Section 220, subdivision 7, of the- Tax Law (Consol. Laws, chap. 60 [Laws of 1909, chap. 62], added by Laws of 1915, chap. 664), as amended by Laws of 1916, chapter 323, which took effect April 26, 1916, is as follows:</p> <p>“ Whenever property is held in the joint names of two or more persons, or as tenants by the entirety, or is deposited in banks or other institutions or depositaries in the joint names of two or more persons and payable to either or the survivor, upon the death of one of such persons the right of the surviving tenant by the entirety, joint tenant or joint tenants, person or persons, to the immediate ownership or possession and enjoyment of such property shall be deemed a transfer taxable under the provisions of this chapter in the same manner as though the whole property to which such transfer relates belonged absolutely to the deceased tenant by the entirety, joint tenant or joint depositor and. had been bequeathed to the surviving tenant by the entirety, joint tenant or joint tenants, person or persons, by such deceased tenant by the entirety, joint tenant or joint depositor by wiff.”</p> <p>The appraiser treated all the foUpwing joint items, both realty and personalty, as taxable at their full amounts:</p> <p>Mortgages.................................. $46,428 44</p> <p>Cash in Mount Vernon Trust Co.............. 2,783 45</p> <p>Land as tenants by the entirety................ 10,300 00</p> <p>Total.................................. $59,511 89</p> <p>All the above had vested in the husband and wife before April 26, 1916, the date of this statute. The Surrogate’s Court confirmed a valuation of the whole estate, after proper deductions, at $77,403.66, upon which was computed a tax of $1,198.07. Besides questioning the interpretation of this provision of the Tax Law, appellants contest the constitutional power to tax estates by the entirety which at the enactment of such statute had already vested.</p>

Appeal by the plaintiff, Board of Health of New Rochelle, from a judgment of the County Court of Westchester county, entered in the office of the clerk of said county on the 29th day of December, 1916, reversing a judgment of the City Court of New Rochelle and dismissing the complaint, and also from the order pursuant to which the judgment was entered.

<p>Public officers — removal of county officer by Governor — costs of defense — County Law, section 240, construed.</p> <p>The provisions of section 240 of the County Law making the reasonable cost and expense in proceedings before the Governor for the removal of a county officer upon charges a county charge only applies where the county officer has made a successful defense to the charges against him.</p> <p>Where the proceeding results in the removal of a county officer by the Governor for official misconduct, he is not entitled to charge the costs of his defense against the county.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 14th day of February, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, John W. Eckman, 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 Chautauqua on the 9th day of April, 1917, limiting an order previously obtained by him for the examination of the individual defendants before trial.

Appeal by the plaintiffs, John R. Hardin and another, as trustees, 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 6th day of June, 1916, upon the report of a referee appointed to hear and determine the issues.

Motion by the defendant, The Liverpool and London and Globe Insurance Company, Limited, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the rendition of á verdict in plaintiff’s favor by a jury at the Erie Trial Term in May, 1916.

<p>Real property — grant to one where consideration paid by another — moral obligation of grantee to reconvey limited by duty to make good loss suffered by tenants through negligence — transfer with intent to defraud judgment creditor.</p> <p>Where the purchaser of apartment houses paid the consideration and took title in the name of his cousin, who was his housekeeper and who paid no consideration, but agreed to manage -che property, and, after paying to the purchaser a certain amount of the rents, retained the balance, and the said cousin, after the commencement of an action against her for injuries caused by her negligence as owner and landlord, reconveyed the premises to the purchaser, the only consideration being a moral obligation, said transfer should be set aside on the ground that it was made with intent to defraud the judgment creditor.</p> <p>The moral obligation of the owner of the. title to reconvey was limited by her duty to make good the loss suffered by tenants through her fault as landlord while she held title.</p>

<p>Appeal by the defendant, G. & M. Improvement 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 16th day of June, 1916, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment enjoined the completion of certain buildings in Underhill avenue on the ground that they were erected in violation of a restrictive covenant and directed the removal of the part thereof actually constructed.</p>

Appeal by the defendants, Robert K. Mickey 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 Nassau on the 16th day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s .office on the 8th day of December, 1916, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, William S. Pollitzer, 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 6th day of. March, 1917.

Appeal by the plaintiff, Joseph H. Doud, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 18th day of January, 1917, upon the decision of the court dismissing the complaint on the merits after - a trial before the court without a jury.

Appeal by Brooklyn Trust Company as committee, and another, from parts of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 26th day of May, 1916, settling the accounts herein and directing distribution of the estate.

<p>Attorney-at-law disbarred — aiding judgment debtor to conceal property.</p> <p>Attorney-at-law disbarred for participating in an attempt of his client, a judgment debtor, to conceal from the creditor on an examination in supplementary proceedings property belonging to the judgment debtor by taking and keeping it in his possession during the examination, by allowing his client to testify falsely without objection or protest and by claiming privilege when interrogated under oath concerning the transaction.</p>

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

Appeal by the defendants, Clarissa Treadwell Dexter and others, from parts of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 6th day of July, 1916, upon the report of a referee appointed to hear and determine the issues.

<p>Will — probate contested on grounds of fraud and undue influence — evidence not justifying verdict for contestants — evidence — past transactions showing family history.</p> <p>Appeal from a decree of the Surrogate’s Court denying probate of a will upon the ground that the execution thereof was procured by fraud, deceit and undue influence. The testatrix left her estate to her daughters and gave to her sons only nominal bequests upon the ground stated in the will that they had, during her husband’s lifetime, received ample advancements from Mm, etc. Evidence examined, and held, absolutely insufficient to support a finding of fraud or undue influence by the jury, and that the decree of the surrogate should be reversed and the will admitted to probate.</p> <p>In such proceeding in the Surrogate’s Court it was error to take evidence otherwise clearly inadmissible, upon the theory that it would place upon ! the record the whole Mstory of the family of the testatrix.</p>

<p>Carrier — liability for loss of goods — bill of lading construed — agreement limiting liability of carrier — Interstate Commerce Law construed.</p> <p>Where a bill of lading covering the entire shipment of merchandise from Japan to the State of New York, and thus including transit across the continent by the defendant railroad, expressly provided that the goods are valued by the shipper at not exceeding $100 per package and that “ the liability of the Companies therefor ” in case of loss shall not exceed $100 per package, the shipper cannot recover in excess of that sum where the goods were destroyed while being transported by the defendant in this country, even though it is admitted that the real value of the goods was greatly in excess of that stated.</p> <p>As the agreement was a “ through bill of lading ” its terms as to value were intended to apply to any of the successive carriers, including the defendant.</p> <p>Although an interstate shipment, whether originating in this country or abroad, is controlled so far as concerns that portion of the transportation which is interstate, by the Interstate Commerce Law, and the rules, form of contract and classification established in pursuance of that law, nevertheless said law and the schedules filed thereunder do not forbid a limitation of the carrier’s liability such as is contained °in the bill of lading aforesaid. In fact the 3d section of the uniform bill of lading allows a lower valuation of goods to be agreed upon.</p>

<p>Assignment — when assignee of beneficiary in will entitled to proceeds of lands taken by eminent domain — will — power of sale construed — when condemnation of lands equivalent to sale by testamentary trustees.</p> <p>Submission of a controversy upon an agreed statement of facts pursuant to the Code of Civil Procedure. The plaintiff, a creditor of a beneficiary under a will and as assignee of her interest in moneys which were the proceeds of lands of the estate taken by eminent domain and held by the executors, claims to be entitled to the share of the assignor and asks ■ that the executors be required to pay over the same. The defendant executors contend that, under the terms of the will, the plaintiff’s assignor could only become entitled to the proceeds of the land in case they were voluntarily sold by the trustees under a discretionary power given by the will, and that the taking of the lands by eminent domain was not such sale as vested the assignor with any interest in the proceeds.</p> <p>Held, that the taking of the lands by eminent domain was in fact a sale within the meaning of the will which, as construed by the court, entitled the assignor to share in the proceeds without restriction and that the only discretion conferred upon the executors related to the price and terms of sale.</p> <p>When the proceeds of the lands taken by eminent domain were received by the testamentary trustees in cash they became personal property and subject to distribution under the terms of the will.</p> <p>Latjghmn, J., dissented.</p>

Appeal by the defendant, Luna Amusement Company, from a judgment of the Court of Special Sessions of the City of New York, Part Two, entered in the office of the clerk of said court on the 11th day of January, 1917, convicting it of violating subdivision 2 of section 161 of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36], as amd. by Laws of 1915, chap. 386).

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 13th day of October, 1916.

<p>Mortgage — deduction of amount of mortgage from purchase price paid by grantee — assignment of bond to executors to secure payment of debt to estate — when mortgagee not entitled to cancellation of mortgage —- promise to pay debt of another founded upon valuable consideration — when mortgagee takes subject to such promise.</p> <p>Where a remainderman entitled to lands under a will mortgaged his remainder to the executors to secure a bond held by them and as to which for a valuable consideration the remainderman had agreed to indemnify and hold harmless the obligor on the bond, a purchaser of the mortgaged premises who paid to his grantor, the remainderman, only the difference between the purchase price and the amount of the mortgage and who took subject to the mortgage, is not entitled to have the instrument canceled or to a decree requiring the executors to collect a sum due to the estate from the mortgagor by means of his personal note given to them, rather than by enforcing the bond secured by the mortgage, which bond the executors held by an assignment.</p> <p>Such a decree would enable the mortgagee and his assigns to acquire the lands for less than the purchase price, as the amount of the mortgage debt had been deducted.</p> <p>The mortgagee has no standing to contend that there was no privity between the mortgagor and the obligor of the bond or the executors, for a person for a valuable consideration may agree to pay the debt of another and to secure such payment may mortgage his lands.</p>

Appeal by the defendant, George J. O’Brien, 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 16th day of October, 1916, upon the verdict of a jury for $600.

Appeal by the defendant, S. S. Stafford, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of February, 1916, granting a preliminary injunction, and also from an interlocutory judgment entered in said clerk’s office on the 29th day of February, 1916, overruling a demurrer to the complaint.

Appeal by the plaintiff, Margaret Burke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 20th day of December, 1916, upon the verdict of a jury rendered by direction of the court after a special verdict had been received, and also from an order entered in said clerk’s office on the 14th day of December, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James H. Brand, 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 March, 1917, granting defendant’s motion for alimony pendente lite and counsel fee.

<p>Public health — municipal corporations — Sanitary Code, city of New York — invalid provision that owners of proprietary medicines shall register ingredients with board of health — ordinance not ratified by Legislature — power of court to protect trade secret — regulation requiring person to give evidence against himself for use in criminal proceeding — police power.</p> <p>While the department of health of the city of New York has power to enact a sanitary code, regulations made by it are open to attack on the ground of unreasonableness if they have not been specifically ratified by the Legislature. But a regulation enacted by the Legislature, or specifically ratified by it after enactment by the hoard of health, cannot be attacked upon the ground aforesaid.</p> <p>Section 117 of the Sanitary Code adopted by the board of health of the city of New York and not ratified by the Legislature, which in effect requires manufacturers of proprietary or patent medicines either to print the formula of the medicine upon the package, or, if not so printed, to register the ingredients in the department of health where the information is to be regarded as confidential and not open to inspection by the public or any persons other than the official custodian of said records and such persons as may be authorized by law to inspect the same, is invalid upon the ground of unreasonableness.</p> <p>This, because the formula when kept as a trade secret is property which, in a proper case, may be protected by the court against an unauthorized disclosure, which is possible under the provisions of said Sanitary Code.</p> <p>It seems, however, that it is not a valid objection to a law or ordinance properly within the scope of police power that its enforcement may incidentally injure or destroy a profitable business.</p> <p>The court may declare said ordinance invalid although it relates only to the sale of medicines within the city of New York so that the proprietors of such medicines can deal freely elsewhere, for they are entitled to protection against even a partial interference with their business if unlawfully threatened.</p> <p>As the purpose of said ordinance is to secure information upon which to base prosecutions for violations of the law forbidding the sale of certain habit-forming drugs, it is also invalid upon the ground that it requires a person to furnish evidence against himself for use in a criminal prosecution, it being admitted that, in the ease at bar, the medicines of the plaintiffs contain no such ingredients in unlawful quantities.</p> <p>The ordinance may be declared, invalid upon the ground aforesaid even though some of the owners of the proprietary medicines are corporations.</p>

Appeal by the plaintiffs, Morris J. Frank and another, 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 29th day of December, 1916, as amended by an order entered in said clerk’s office on the 19th day of February, 1917, in so far as said determination and order reverses a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Seventh District, in plaintiffs’…

Appeal by Theodore F. Hicks and others, as executors, 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 28th day of March, 1917, affirming a prior order fixing the transfer tax herein.

Appeal by the defendants, Eduardo Correa 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 19th day of March, 1917, granting plaintiffs motion for judgment on the pleadings.

Certiorari issued out of the Supreme Court and attested on the 16th day of December, 1916, directed to Oscar S. Straus and others, constituting the Public Service Commission of the First District of the State of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in connection with the application of the relator to issue certain bonds.

Appeal by the defendant, William J. Bums, from a judgment of the Court of Special Sessions of the City of New York, Part VI, rendered against him on the 26th day of January, 1917, convicting him of violating subdivision 3 of section 553 of the Penal Law.

Appeal by the plaintiff, Thaddeus Davids Company, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of October, 1916, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in plaintiff’s favor.

<p>Landlord and tenant — action for rent — defense — partial eviction.</p> <p>Where, in an action under a written lease to recover the rent of a store, it ■ appears that the tenant, although he had not rented the garret or stairway leading thereto, had been given the privilege of using the same, the fact that the landlord subsequently, upon rearranging the store, changed the means of access to the garret; but in no way disturbed the tenant’s use thereof, ■ does not effect a partial eviction of the defendant so as to constitute a defense to the action.</p>

Appeal by the plaintiff, William F. Behrmann, as substituted trustee, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 17th day of July, 1916, upon the decision of the court after a trial before the court without a jury-

Appeal by the defendant, Samuel Milch, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, Part IV, entered in the office of the clerk of said court on the 29th day of May, 1916, convicting him of an attempt to commit grand larceny in the first degree.

Appeal by the defendants, Wilheknina M. Bonhag and another, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 15th day of May, 1917, denying their motion to vacate a receivership in foreclosure.

<p>Appeal from a judgment of the Supreme Court dismissing the complaint after a trial at Trial Term, and also from an order denying a motion for a new trial.</p>

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

Appeal by the plaintiff from so much of an order of the Supreme Court as requires it to serve a bill of particulars stating in detail the amount of damage it has suffered by reason of its claim that its business was destroyed.

<p>Crime — selling indecent literature.</p>

Appeal by the defendant from an order of the Supreme Court denying his motion for judgment on the pleadings consisting of a complaint and demurrer.

<p>Appeal from certain portions of an order of the Supreme Court, as resettled, directing the plaintiff to serve a bill of particulars.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 11th day of May, 1916, dismissing his complaint.

<p>Disbarment — conviction for a felony.</p>

<p>Appeal from a judgment of the Supreme Court in favor of the defendants entered upon the decision of the court after a trial without a jury.</p>

<p>Appeal from an order denying the defendants’ motion for leave to amend answers.</p>

<p>Appeal from a judgment of the Supreme Court dismissing the complaint upon, the defendant’s motion after a trial at Trial Term, and also from an order denying the plaintiff’s motion for a new trial.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Bangs on the 18th day of October, 1916, in favor of the plaintiff.

Appeal by the defendant from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 18th day of October, 1916, affirming a judgment of conviction rendered in the First District Magistrate’s Court, in the borough of Brooklyn, city of New York.

Certiorari issued out of the Supreme Court on the 2d day of August, 1916. Determination of the Public Service Commission confirmed, with fifty dollars costs and disbursements. All concurred, except Kellogg, P. J., who dissented in memorandum, in which Lyon, J., concurred.

Judgment and order affirmed, with costs, on the opinion of Rudd, J., at Trial Term (Reported in 97 Misc. Rep. 127). All concurred, except Kellogg, P. J., who dissented in memorandum.

Appeal by the defendants, William Brady and John Welch, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Greene in favor of the plaintiff on the 24th day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1916, denying the defendants’ motions for a new trial made upon the minutes. Judgment and order affirmed, with costs.

<p>Appeal from a judgment of conviction of the County Court of Jefferson county, rendered on the 8th day of November, 1916.</p>

Judgment and order affirmed, with costs. All concurred, except Foote, J., who dissented, and Merrell, J., who dissented in a memorandum.