Volume 179 — New York Appellate Division Reports

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 5th day of February, 1917, affirming a prior order fixing the transfer tax herein.

Appeal by the plaintiffs, Annie Cullen and others, as executrices, 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 11th day of April, 1917, staying the trial herein until plaintiffs bring in the representative of Margaret Phillips, named as a defendant but not served, who died about the time of the commencement of the action.

<p>Appeal by the defendant, George H. Bell, as commissioner of licenses of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1917, granting plaintiff’s motion for an injunction pendente lite enjoining and restraining him from in any manner interfering with plaintiff’s exhibition of a moving picture film entitled “ Birth Control,” and from in any manner revoking or threatening to revoke the license heretofore issued by him to one Anhalt as licensee of the Park Theatre at Columbus Circle and Fifty-ninth street, borough of Manhattan, New York, and from in any manner revoking or threatening to revoke the license of any licensee in whose theatre said motion picture film may be exhibited or may be advertised to be exhibited.</p>

Appeal by the defendants, The Exchange National Bank of Seneca Falls 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 Seneca on the 30th day of June, 1915, upon the decision of the court after a trial at the Seneca Special Term.

<p>Appeal ' by the defendant, Massachusetts Bonding and Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1917, overruling its demurrer to the first cause of action alleged in the amended complaint.</p>

Appeal by the plaintiff, Louis Neuer, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Kings on the 30th day of October, 1916, reversing a judgment of the Municipal Court of the City of New York, borough of Brooklyn, fourth district, and dismissing the complaint upon the merits.

Appeal by Theodore W. Myers, as executor, from ah order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 1st day of February, 1917, requiring the executor to pay forthwith the sum of $215.58, the amount of the transfer tax imposed on the cash value of the interest of the beneficiaries of the five per cent class under the will, with interest at ten per cent from the 3d day of April, 1893.

Appeal by the defendants, Ludwig Vogelstein 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 3d day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of November, 1916, denying-defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Theatre 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 April, 1917, denying its motion to strike out the fourth amended complaint herein, on the ground that it does not comply with the orders permitting its service.

Appeal by the^plaintiff, Henry L. Hunter, Inc., from an order of the Appellate Term of the Supreme Court in favor of the defendant, entered in thé office of the clerk of the county of New York on the 25th day of October, 1916, affirming a judgment of the City Court of the City of New York, dismissing the complaint.

Appeal by the plaintiff, Albert Hoffman, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1917, correcting the interest in a verdict by reducing the amount from eighty-one dollars and fifty-one cents to thirty-seven dollars and forty-seven cents and reducing the judgment accordingly.

Appeal by the defendant, Dilltown Smokeless Coal 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 11th day of June, 1917, denying its motion to vacate and set aside the warrant of attachment heretofore issued herein.

Appeal by the defendant, Wharton, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of November, 1916, upon the verdict of a jury, and also from an order entered in .said clerk’s office on the 1st day of December, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Leo Simon and another, from an order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of December, 1916, affirming; a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in plaintiff’s favor, and also, as stated in the notice of appeal, from the original judgment of the Municipal Court entered in the office of…

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th 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 25th day of October, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Limitation of actions — presumption of payment of judgment after twenty years — scheduling of said judgment in bankruptcy rebuts the presumption and acknowledges the indebtedness — action on judgment after discharge in bankruptcy of judgment debtor — pleading — failure to duly schedule judgment by stating creditor’s address as unknown — collateral attack on discharge — burden of proof.</p> <p>A debtor by listing a judgment in his bankruptcy schedules acknowledges the same as a subsisting obligation and rebuts the conclusive presumption under section 376 of the Code of Civil Procedure that said judgment has been paid.</p> <p>The fact that in an action on such a judgment the plaintiff has not in his reply set up the schedules in bankruptcy as an acknowledgment of the debt does not prevent him from availing himself of the acknowledgment on the trial, where all the facts are pleaded by the defendants.</p> <p>Stating the residence of a judgment creditor as unknown, without some evidence of due diligence to ascertain the address, does not constitute a due scheduling of the debt so as to effect its discharge.</p> <p>An allegation that a claim is not discharged because not fully scheduled is not a collateral attack on the discharge, for by the terms of the Bankruptcy Act the discharge does not operate upon claims unless they are duly scheduled.</p> <p>In an action upon a judgment the burden of establishing that it has been discharged in bankruptcy rests upon the defendant.</p>

Appeal by the plaintiff, William W. Niles, 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 4th day of May, 1917, granting the motion of the respondent to strike out certain allegations of the complaint as redundant and scandalous and requiring plaintiff to redraft and serve an amended complaint.

<p>Principal and agent — sale — purchase by agent for undisclosed principal — estoppel — remedies of seller — replevin.</p> <p>In an action to replevy certain furniture it appeared that it was purchased and charged to the account of one G. and delivered to the defendant where G. received and signed for it; that upon the defendant’s failure to pay for the furniture the plaintiff made demand upon G. for payment, who gave an order on the defendant directing him to deliver the furniture, and that said order was not honored, and thereafter G. executed a bill of sale to the plaintiff.</p> <p>Held, on all the evidence, that the complaint should be dismissed, because there was an absolute sale and title passed to the defendant upon delivery to him;</p> <p>That G. was merely acting as agent for the defendant, an undisclosed principal;</p> <p>That while the plaintiff has the right to sue either the agent or the principal for the purchase price upon discovering the agency, the transaction being in fact a sale, G. can only be held accountable on the ground of estoppel, he having made the purchase on his own credit.</p> <p>It was error to send the case to the jury to determine whether evidence by G. of a sale to the defendant or evidence offered by the defendant to show that G. agreed to purchase the furniture and deliver it to him'in payment of an indebtedness was true, because either theory would result, as a matter of law, in the dismissal of the complaint.</p> <p>A subsequent bill of sale executed by G., the agent, was without effect and gave no title to the plaintiff.</p>

<p>Appeal by the plaintiff, Francis Sherwood Male, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1916, granting respondent’s motion for judgment on the pleadings, consisting of an amended complaint and demurrer thereto, and dismissing the amended complaint, and also from the judgment entered in said clerk’s office on the 16th day of March, 1916, dismissing the amended complaint pursuant to said order.</p>

Appeal by the defendant, Aaron Hecht, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of January, 1917, denying his motion for judgment on the pleadings, consisting of a complaint and answer.

Appeal by the contestant, Alfred P. Roth, from a judgment of the Supreme Court in favor of the claimant, entered in the office of the clerk of the county of Bronx on the 23d day of October, 1916, pursuant to an order confirming the award of arbitrators, and also from the order entered in said clerk’s office on the 20th day of October, 1916, confirming said award.

Appeal by the defendant, Selina Lucille Dewey, individually and as executrix, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 2d day of May, 1916, upon the decision of the court after a trial at the New York Special Term, except such parts as settle the account of the plaintiff, direct payment of its commissions and grant costs and allowances.

<p>Railroads — negligence — injury to minor, who had climbed signal structure, from contact with electric wires on pole maintained by another company — evidence — assumption of risk — trespassers — licensees — attractive nuisance.</p> <p>In an action for personal injuries received in the State of Connecticut it appeared that the defendant had erected a metal signal structure within its right of way, including a railed platform twenty feet high reached by a ladder which was necessary for the use of defendant’s servants; that inclining toward said structure was a wooden pole used by another railway, the crossarms of which supported electric wires of high and dangerous voltage, and that the plaintiff, a boy between eleven and twelve years of age, climbed the ladder to the platform and while waving his arms came in contact with one of the wires on the wooden pole and was injured.</p> <p>Evidence examined, and held, insufficient to sustain a verdict for the plaintiff.</p> <p>The plaintiff assumed all risks of danger incident to the then condition of the premises.</p> <p>The court does not distinguish between mere trespassers or bare licensees.</p> <p>The defendant was entitled to have the court instruct the jury “ that they cannot predicate a verdict upon the proposition that this was an attractive __ nuisance or attractive thing and attracted any child up there.”</p> <p>The plaintiff was bound to establish active negligence.</p>

Appeal by the relator, Stephen Cantoni, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 2d day of December, 1916, denying his application for a writ of mandamus.

<p>Appeal by Ulrich Wiesendanger, as sheriff, by the warden of the county jail of Westchester county, and by the People of the State of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of March, 1917, sustaining a writ of habeas corpus discharging the relator from custody.</p> <p>The relator was convicted by the Court of Special Sessions of the city of Yonkers, under section 899 of the Code of Criminal Procedure, of being a disorderly person, in that he did abandon his wife and children without adequate support, etc. He was committed to the county jail in default of an undertaking in the sum of $500, to pay $10 a week. The appeal sought to be taken from the judgment was never perfected, and was dismissed. A new commitment was issued by the County Court in conformity with its order dismissing the appeal, which commitment was of the same effect as that of the court below. The relator, while in custody upon the commitment, applied to the County Court to modify the commitment by changing the direction as to the amount to be paid by him and to be secured by the undertaking, so as to reduce it to $5 a week. The commitment was so modified; relator gave an undertaking conditioned in accordance with the requirements of the modified commitment, and was released. Thereafter the County Court caused the relator to be brought before it pursuant to a subpoena. The County Court, after talcing the testimony of the relator’s wife and sons, and the testimony of the relator, decided and stated that the said weekly sum had been improvidently reduced without full knowledge of all the circumstances, upon representations which were shown by such testimony to be incorrect, stated that it was of opinion that the relator was able to pay the sum of $10 a week; and thereafter the court, of its own motion, made an order and a commitment pursuant thereto, whereby the relator was ordered to enter into an undertaking in the sum of $500 conditioned for the payment of $10 a week for the support of his wife and children, and in default thereof to stand committed to the Westchester County Jail for a term not exceeding six months. Pursuant thereto, a commitment was issued to the sheriff of the county of Westchester to take the relator into custody and to detain him until he should file such security, in default whereof the relator should be committed to the county jail for a term not to exceed six months. The sheriff made return to the writ that the said relator was detained by him pursuant to the commitment last mentioned.</p>

Motion by the respondent to resettle an order of the Appellate Division, Second Department, reversing the judgment herein, which order was made on the 8th day of June, 1917.

<p>Bills and notes — suit to recover proceeds of checks of corporation used by president to pay individual debt — duty of person receiving such checks to make inquiry — effect of inquiry which would have resulted in establishing president’s authority to use corporate funds.</p> <p>Where, in an action brought by a corporation to recover the amount of cheeks drawn by its president and used by him to pay a personal indebtedness to the defendants, it appears that the president delivered a number of cheeks of the plaintiff to the defendants, which were credited by them on the president’s personal brokerage account, and that the defendants, owing to the form of the cheeks, were put upon inquiry as to' the president’s right so to use the funds of the corporation, they are bound by whatever such an inquiry would have disclosed to them.</p> <p>A judgment for the defendants is justified where the proof showed that since its incorporation the plaintiff had made the practice of paying the president’s individual debts by cheeks drawn upon the corporation account; that the president and his wife owned practically all the capital stock and that no attempt had ever been made by the plaintiff to distinguish between the corporate funds and personal funds of its president, who was accustomed to deposit his personal money in the name of the corporation. This, because, if an inquiry had been made by the defendants as to the president’s authority to use corporate funds, they would have been justified in believing that he was authorized so to do.</p> <p>Dowling and Page, JJ., dissented.</p>

Appeal by the defendant, The President and Trustees of the Village of Ossining, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of July, 1916, upon the decision of the court, a jury having been waived.

<p>Appeal by the defendants, Elisabeth S. Crafts and others, from part 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 16th day of November, 1916, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the defendant, Louis R. Adams, 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 7th day of April, 1917, adjudging him in contempt of court for failure to pay alimony and counsel fee.

<p>Appeal by the defendant, Columbia Machine Works and Malleable Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for' breach of a contract of employment providing for the employment of plaintiff for a period of one year “ provided your services are satisfactory to us.” Plaintiff alleged that he was wrongfully discharged before the expiration of the year.</p>

<p>Appeal by the plaintiff, Emile Dugas, 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 April, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the plaintiff, Daniel J. Speck, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1916, setting aside the verdict of a jury in plaintiff’s favor and granting a new trial, except in so far as said order denies the defendant’s motion to dismiss the complaint.

<p>Appeal by the plaintiff, Sarah Jacobs, 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 4th day of April, 1917, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and having waived the attendance of the jury.</p> <p>An appeal is also taken, as stated in the notice of appeal, from the decision of the court.</p>

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

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of March, 1916, referring a claim for damages to the commissioners of estimate and assessment in this proceeding.

Appeal by the plaintiff, Patrick Ryan, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of New York on the 31st day of October, 1914, upon the verdict of a jury, and also from an order entered . in said clerk’s office on the 29th day of October, 1914, denying plaintiff’s motion for a new trial as to the verdict for defendant on an item for sheeting and foundation timbers and to set aside the court’s direction dismissing the…

<p>Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of March, 1916, as resettled by an order entered in said clerk’s office on the 6th day of April, 1916.</p> <p>The judgment appealed from was rendered upon the decision of the court dismissing the complaint upon the merits after a trial before the court without a jury.</p>

Appeal by the defendant, New York Mutual Benevolent Society, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 28th day of December, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of April, 1917, denying defendant’s motion for a new trial made on the ground of newly-discovered evidence.

<p>Appeal by The City of New York and others from parts of 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 11th day of November, 1914, confirming an award of commissioners in street closing proceedings, with notice of an intention to bring up for review certain other orders in the proceeding.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 6th day of January, 1917, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendants, Mary It. Winberry 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 Rock-land on the 20th day of September, 1916, upon the decision of the court after a trial at the Rockland Special Term.

<p>Appeal by the defendant, John Deinhardt, from a judgment of the County Court of Queens county, rendered against him on the 30th day of June, 1916, convicting him of the crime of grand larceny in the first degree, and also from an order entered in the office of the clerk of said county on the 13th day of July, 1916, denying his motion for a new trial, and a second order denying his further motion in arrest of judgment.</p>

Appeal by the defendants, Lawson Purdy and others, as commissioners, 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 13th day of December, 1916, reducing an assessment on real estate.

Appeal by the petitioner, Herbert S. Sisson, as State Commissioner of Excise, from 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 24th day of April, 1917.

Appeal by the plaintiff, Nye Schneider Fowler Company, from so much of the order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Dutchess on the 24th day of February, 1917, as denies its motion for judgment on the pleadings as to certain alleged separate defenses. Appeal by the defendant, P. J. Barnes, from so much of said order as strikes out the first and second defenses in his answer.

Appeal by the defendant, H. C. Bohack Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of May, 1916, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, New York Municipal Railway Corporation and another, 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 22d day of June, 1916, in so far as the same confirms the report of the commissioners of appraisal with respect to one parcel and orders compensation made to the respondent for the taking thereof.

Appeal by the defendants, James 0. Winston 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 Ulster on the 12th day of March, 1913, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion for a new trial made upon the minutes. This appeal was transferred to' the Second Department from the Third Department.

<p>Negligence — liability of manufacturer of wooden bedstead to third person for injuries sustained by its collapse — judgment on pleadings — practice — judicial notice.</p> <p>As a general rule an action for negligence cannot be maintained by a third person against the manufacturer of an article not in and of itself imminently and inherently dangerous.</p> <p>An ordinary wooden bedstead is not an article which is reasonably certain to place life and limb in perE when negligently constructed or which of itself in the use to which it is intended to be put gives any warning of dangerous circumstances attending its use, and the manufacturer is not charged with knowledge of danger in its contemplated use “ not merely possible but probable.”</p> <p>Hence, where in an action to recover for personal injuries aUeged to have been sustained through the negligence of the defendant in the improper and negligent construction of a bed which eoHapsed whEe the plaintiff was lying upon it and about to be delivered of a chEd, it was aHeged that the defendant was negligent in failing to use sufficiently strong strips of wood oh the inner sides of the sidepieces which formed a support for the slats and did not properly fasten the same and said pieces gave way aEowing the plaintiff to drop to the floor, defendant’s motion for judgment on the pleadings was properly granted.</p> <p>The court in such a ease, aided by the aEegations of the complaint, may take judicial notice of the construction of the bed.</p> <p>A motion for judgment on the pleadings where an answer is interposed is to be treated as though made at the opening of the trial and the practice on such motion is analogous to that upon a demurrer.</p> <p>Jenks, P. J.,.and Thomas, J., dissented.</p>

<p>Appeal by the contestants, Mary E. Merklin and another, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 25th day of January, 1917, admitting to probate the will of Hugh Kenney, deceased.</p>

<p>Appeal by William F. Webb and Lillian M. Kennedy from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 28th day of September, 1916, judicially settling the accounts herein.</p>

Appeal by the corespondent, Walter T. Hazrick, from a judgment of the Supreme Court in favor of the plaintiff and against the corespondent, entered in the office of the clerk of the county of Kings on the 13th day of December, 1916, upon the decision of the court after a trial at the Kings County Special Term.

<p>Appeal by Edward C. Sayre and others from a decree of the Surrogate’s Court of the county of Suffolk, entered in the office of said Surrogate’s Court on the 6th day of November, 1916, admitting to probate and construing the will herein.</p> <p>The will in substance directs the executor to convert all testator’s estate, real and personal, into money; it gives the proceeds to the union free school district of Southampton, to be used by the board of education of said district, or officers performing like functions, for the payment of teachers’ wages forever, “to be controlled, invested and paid over for the benefit of said district by trustees in the manner and under the conditions hereinafter provided and set forth;” it appoints the appellant Harri M. Howell the first trustee and provides for substituted trustees on his decease.</p> <p>The will then directs the trustee to pay for the benefit of the district, to the treasurer “ or the officer performing the duties of that officer,”' in each year a sum to be fixed by the board of education not to exceed $1,500 in any one school year, and to deduct from that amount any school taxes assessed against the fund. It provides that it is not the testator’s intention to lessen the burden of taxation, but that the teachers shaH. be the best obtainable, and that the surplus moneys raised by taxation, and which would have been required for teachers’ wages but for the bequest, shall be expended for buildings, apparatus and betterments. The testator then provided a method of securing such results, by requiring the trustee to withhold further' payment until satisfied that an amount equivalent to the payment under the will had been expended in buildings, apparatus and betterments.</p> <p>The surrogate construed these provisions as constituting an absolute gift direct to the union free school district No. 6 of the town of Southampton. He decreed that the executor sell the land and turn the funds over to the trustees of said district, from which the executor and next of kin appeal.</p>

Appeal by the plaintiff, Jacob M. Simon, 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 29th day of May, 1917, denying his motion to strike the cause from the calendar and ordering it on trial. When the case was noticed for trial by the other defendants and placed on the calendar, defendant Kaplan had not been served with the summons.

<p>Bills and notes — action by indorser against prior indorser — defense that note was fraudulently filled out in violation of agreement — evidence as to transactions in absence of plaintiff admissible to establish agreement — burden of proof — effect of words “ part renewal” preceding indorsement — when bank charged with notice of limited indorsement.</p> <p>Where in an action on a promissory note made to the order of the defendant as payee and indorsed by him and by the plaintiff, the complaint alleges that the maker procured the discount of the note at a bank; that it was not paid on maturity; that due notice of dishonor was given to the indorsers; and that plaintiff, the last indorser, paid the full amount to the bank and thereupon became the owner and the holder thereof, and the answer alleges in substance that at the time the note was made the bank was the holder of another note in which the same party was one of the makers and which was indorsed by the parties to this action in the same order; that as such note was coming due a prior indorser induced the defendant to place his indorsement upon a blank note on the representation that it would, with the same makers, payees and indorsers, be used to renew a portion of the note then in the bank; that the said indorser unlawfully filled out the said note in the manner set forth in the complaint and procured the bank, contrary to the indorsement of the defendant, which was preceded by the words “ part renewal,” to accept it, thereby depriving the defendant of the security of responsible prior indorsers, it was reversible error to refuse to allow the defendant to prove that his signature was procured on the promise that the note would be filled up with the same indorsers as before, although the plaintiff was not present at the time of the transactions or conversations.</p> <p>If the defendant had been permitted to prove the circumstances under which he gave his indorsement, he would have established a defect in the title and the burden of proof would have shifted to the plaintiff to show that his title was that of a holder in due course.</p> <p>Under the circumstances, the words “ part renewal ” preceding the defendant’s indorsement charged the bank with knowledge that there was a limitation upon the use of the indorsement, which was sufficient to put it upon inquiry.</p>

Appeal by the defendant, The New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of January, 1917, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 13th day of December, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Alice Arrella Butler, an infant, by Mary Butler, her guardian ad litem, from a judgment of the County Court of Oneida county, entered in the office of the clerk of said county on the 13th day of December, 1916, upon the decision of the court decreeing foreclosure of a mortgage and directing the sale of the mortgaged property.

Appeal by the defendants, Edward A. Cahoon and others, as assessors,' from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 23d day of March, 1916.

Appeal by the defendant, Martin May, from a judgment of the County Court of Ontario county rendered against him on the 18th day of March, 1914, convicting him of the crime of petit larceny, and also from an order entered in the office of the clerk of the county of Ontario denying defendant’s motion for a new trial and in arrest of judgment. An appeal is also taken from the decision of the county judge overruling the demurrer to the indictment.

<p>Municipal corporations — rules of municipal civil service commission, city of Buffalo — eligibility for examination for promotion in police department.</p> <p>The municipal civil service commissioners of the city of Buffalo had power to adopt a rule that as a condition of eligibility to enter a promotional examination in the police department, the person desiring promotion must have been continuously employed for the specified period of twelve months immediately preceding such examination in a next lower position, the duties of which are such as would naturally and properly tend to fit him for the duties of the position to which he seeks promotion.</p> <p>Such rule is not contrary to a rule adopted by the common council providing that vacancies in the positions of captains and lieutenants shall be filled by appointment of a member of the force, for such rule does not mean that all members of the-force are entitled to take the examination but only such as are permitted to do so under reasonable rules promulgated by the civil service commission.</p> <p>Moreover, the civil service commission is not required to adopt the classification made by the common council, although the government and discipline of the police department is to be prescribed by said council.</p> <p>The application of a detective sergeant to enter the examination for the position of captain, without having been a lieutenant should be denied.</p> <p>But a patrolman who has been detailed as a desk sergeant and who has not been doing patrol duty immediately preceding the examination, should not be deprived of his right to take the examination for the promotion to which he would have been entitled if he were doing patrol work, and a rule excluding desk sergeants is invalid.</p>

<p>Decedent’s estate — descent and distribution of property — when cousin not entitled to real or personal property as against sole surviving half sister of decedent — Decedent Estate Law construed.</p> <p>Where a woman dies leaving a sister of the half blood by a common father, but no ancestors or descendants, all her personal property goes to the half sister under section 98 of the Decedent Estate Law, and a daughter of her maternal aunt has no share therein, and hence is not entitled to intervene in probate proceedings for the purpose of contesting the decedent’s will.</p> <p>Moreover, under the circumstances, said daughter of the maternal aunt of the testatrix takes no share of the decedent’s real estate which came to her from her mother, and section 90 of the Decedent Estate Law relating to real estate which came from an ancestor and excluding from inheritance those who are not of the blood of such ancestor has no application. This, because the decedent’s áster of the half blood and the daughter of the maternal aunt are not related in the same degree to the decedent.</p> <p>A sister of the half blood is a sister within the meaning of section 87 of the Decedent Estate Law, and the rule of inheritance relating to ancestral estates excluding relatives not of the blood of the ancestor, applies only in the case of such a sister where there is another relative of the blood of the ancestor related in the same degree to the decedent as the sister.</p> <p>The court, however, confines the decision to the precise situation involved in the case at bar.</p>

<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 6th day of April, 1917, upon a dismissal of the complaint by direction of the court upon the pleadings and the opening.</p>

Appeal by the plaintiff, William McKay, from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 2d day of May, 1917, dismissing the complaint and directing judgment in favor of the defendant for costs on the ground that plaintiff has another and prior action pending in this court for the same cause.

<p>Attorney and client — action to recover for professional services rendered — when grantee of lands involved in action of ejectment not liable for attorney’s compensation — right of client to discharge attorney.</p> <p>Where, pending an appeal from a judgment for defendants in an action of ejectment, the defendants by a warranty deed conveyed the premises to a third person who was not a party to the action, the grantee cannot be held liable for professional services rendered by the defendants’ attorney in conducting the appeal, upon the theory that she was bound by an implied contract to pay, where there is no pretense that she in any way retained the attorney or gave any direction in respect to the case.</p> <p>The benefit conferred upon the grantee by the success of the defendants on appeal did not make her hable for the attorney’s compensation, for she was protected in her title by her grantors’ covenant of peaceable possession.</p> <p>Moreover, she cannot be made hable for attorney’s fees, where there is no proof that her acquisition of title increased the attorney’s labors and he did only what he was required to do under his original retainer by the grantors.</p> <p>Said grantee cannot be made hable upon the ground that she failed to reply to a letter of the attorney stating that he would look to her for compensation, for she was a stranger to him and to the htigation and owed no duty to reply.</p> <p>A chent may discharge his lawyer with or without reason at any time and the lawyer can recover only the value of the services rendered. Mebbell, J., dissented, with memorandum.</p>

Appeal by the defendant, Marcellus and Otisco Lake 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 Onondaga on the 16th day of February, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered -in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Insurance — fire insurance — action on renewal of policy — pleading — amendment of complaint so as to allege parol agreement by defendant’s agent to keep plaintiffs insured — validity of said parol agreement — Statute of Frauds — unilateral contract — charge by court as to duty of agent to find plaintiffs after their removal to another vicinity.</p> <p>Where, in an action against a fire insurance company upon an alleged renewal of a policy issued by it, it appeared that the plaintiffs purchased</p> <p>' the property through the duly authorized agent of the defendant who had express authority to “ countersign and issue policies of insurance and renewals in the city of Depew and vicinity;” that said agent told plaintiff that he would renew the policy every three years and send it to him; that said agreement was carried out by the defendant for a period of twelve years, and at the trial the court was of the opinion that the plaintiffs’ proof failed to establish the issuance of the renewal policies, it was proper to allow an amendment of the complaint so as to allege a parol agreement to keep the plaintiffs insured in the defendant company.</p> <p>In view of the character of the business of defendant’s agent, and the fact that he had previously delivered renewal policies, the plaintiff was justified in assuming and believing that he spoke in the name. of the defendant, and his oral agreement to keep the policy renewed is binding on the company.</p> <p>Said oral agreement is not void under the Statute of Frauds upon the ground that by its terms it was not to be performed within one year from the making thereof, as there is nothing in the contract fixing any particular time for its performance by the defendant.</p> <p>Said contract is not void upon the ground that it is unilateral.</p> <p>The plaintiffs having removed from Depew and vicinity, the court was justified in charging that the agent should have done more than simply ascertain that the plaintiffs had moved to Buffalo.</p> <p>Foote, J., dissented.</p>

<p>Appeal by the plaintiff, Assets Realization Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 27th day of November, 1916, upon the verdict of a jury rendered by direction of the court dismissing the complaint, and also from an order entered in said clerk's office on the same day granting defendant an extra allowance of costs in the amount of $954.46.</p> <p>The action is to recover of defendant $21,200, with interest from September 28, 1908, upon a guaranty agreement as follows:</p> <p>“ Whereas, it has been thought desirable by the officers and directors of the Metropolitan Rank, a banking corporation created and existing under the laws of the State of New York, that the said bank shall go into voluntary liquidation.</p> <p>“ And Whereas, such officers and directors have requested The German Bank of Buffalo, New York, to undertake such liquidation, and in order to induce said German Bank so to do have agreed to furnish to said German Bank a guarantee against loss, as set forth, in the agreement of liquidation, dated August , 1901,</p> <p>“Now, therefore, in consideration of the premises and of one dollar to us and each of us in hand paid by The German Bank, the receipt whereof is hereby acknowledged, we, the undersigned, all of Buffalo, New York, do hereby covenant and agree each for himself and not for the other, to and with the said The German Bank that we will at all times hereafter keep and save harmless and indemnify the said The German Bank of from and against all loss, damage or injury which it may in any manner sustain by reason of any and every advance which it may make pursuant to the aforesaid agreement, and of and from all costs or expenses that may in any manner grow thereout.</p> <p>“ This indemnity, however, shall not render any one of the subscribers hereto hable for a greater sum than that set opposite his own name hereunder.</p> <p>“ Witness our hands and seals this 10th day of August, 1901.</p> <p>$1,000 00 “ JOSEPH KAM [l. s.]</p> <p>18,700 00 “ JACOB DITCHER</p> <p>21,200 00 “ P. W. ROTH.</p> <p>3.500 00 “ MOSES SHIRE [l. s.]</p> <p>2,000 00 “ ANTHONY NEUPERT [l. s.]</p> <p>1,000 00 “ JNO A. KESSEL [l. s.]</p> <p>1,000 00 “ HENRY P. HOUCK [l. s.]</p> <p>1,000 00 “ C. GROBEN</p> <p>5,300 00 “ HENRY W. WENDT</p> <p>2.500 00” “ CLARENCE M. HOWARD</p> <p>This agreement was executed concurrently with an agreement between the Metropolitan Bank and the German Bank, which provided for the advancement by the German Bank to the Metropolitan Bank of sufficient money to pay the depositors of the MetropoEtan Bank, amounting to $782,000, for the pledge to the German Bank of all the assets of the MetropoEtan Bank as security for its advances for the Equidation of the affairs of the MetropoEtan Bank by the German Bank with the assistance of the officers of the MetropoEtan Bank, for the transfer of the depositors’ accounts from the MetropoEtan Bank to the German Bank, so far as that could be accomplished, and for the discontinuance of the banking business of the MetropoEtan Bank. A copy of this agreement is printed in full in the report of the case of Assets Realization Co. v. Howard (211 N. Y. 432-435). Each of the persons who signed the guaranty agreement was a director of the MetropoEtan Bank and was a stockholder to the amount set opposite the signature of each. They were not, however, all the stockholders.</p> <p>In part performance of the liquidation agreement the German Bank did advance the money necessary to pay the depositors, did take possession of all the assets of the MetropoEtan Bank, and did proceed with the Equidation from August 10, 1901, to December 21, 1904, when, in an action by the Attorney-General brought for its dissolution, it was adjudged to be insolvent, its charter was annuUed, its assets directed to be distributed, and one Albert J. Wheeler was appointed its permanent receiver. Prior to that time the German Bank had paid the depositors and for that purpose had advanced $795,232.48.</p> <p>The nominal or face value of the assets of the MetropoEtan Bank which it took into its possession was over $1,000,000. From these assets it had reaEzed $671,831.26, and the face value of the remaining assets still unliquidated was over $350,000.</p> <p>Prior to this judgment of dissolution and on July 16, 1903, the German Bank recovered a judgment by default against the MetropoEtan Bank for $237,271.77, which sum was claimed to represent the amount it had advanced to pay depositors, with interest thereon, less the sum it had reaEzed from the assets, together with a note of the MetropoEtan Bank of $50,000, which it had discounted prior to August 10, 1901, and the $20,000, which it was to receive for its services by the terms of the Equidation contract. At this time there remained a considerable amount of the assets of the Metropolitan Bank unliquidated. The object which the German Bank had in view in the recovery of this judgment seems to have been to lay the foundation for an action by it against the stockholders of the Metropolitan Bank to enforce their statutory and constitutional liability in case the remaining assets proved insufficient to pay the balance due to it. At the time of the appointment of Wheeler as receiver of the German Bank, he took possession of all its assets, together with the remaining unliquidated assets of the Metropolitan Bank. He realized from some of these assets, brought an action to recover of the stockholders of the Metropolitan Bank on account of their supposed liability to the German Bank to make good to it for the deficiency in assets to reimburse it for its advances, and finally sold the remaining assets, together with this supposed cause of action against the stockholders, to the plaintiff in this action. Thereupon this plaintiff continued to realize as much as it could from the remaining assets until September 9, 1908, when it sold the then remaining assets at public sale, thus, as it claims, completing the liquidation.</p> <p>After the purchase by plaintiff of the assets of the German Bank, it procured itself to be substituted as plaintiff in the action which the receiver had brought against the stockholders of the Metropolitan Bank, and prosecuted that action, which was finally disposed of by the Court of Appeals in June, 1914, as appears from the report of the case at 211 New York, 430. The conclusion reached was that the liquidation agreement between these two banks was not intended to and did not create a liability on the part of the Metropolitan Bank to pay to the German Bank any deficiency in the amount of the assets taken over by the German Bank to reimburse it for its advances.</p> <p>The present action was begun in September, 1914.</p>

Appeal by the defendant, Jefferson Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on-the 18th day of January, 1912, upon the report of a referee.

<p>Husband and wife — annulment of marriage — fraud based upon concealment by defendant that she was an epileptic — evidence — voluntary cohabitation precluding annulment — waiver of allegations of force and duress.</p> <p>Where, in an action for the annulment of a marriage upon the ground of force, duress and fraud based upon the fact that at the time of such marriage defendant was an epileptic and that she concealed such infirmity from the plaintiff, and upon the claim that the defendant threatened to Mil the plaintiff unless he married her, it appears that the parties voluntarily cohabited subsequent to the marriage, the alleged force and duress must be deemed to have been waived.</p> <p>A finding in such an action that the plaintiff was induced to marry the defendant through deception, concealment or misrepresentation on defendant’s part, held, to be against the weight of the evidence, and moreover, as it is conclusively shown that plaintiff voluntarily cohabited with defendant as his wife, with full knowledge of the facts constituting the alleged fraud upon him, he is precluded from obtaining an annulment upon that ground.</p>

<p>Appeal by the defendant, Aage Gusmer, 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 10th day of November, 1916, upon the decision of the court after a trial at the New York Special Term, enjoining the defendant and directing an accounting.</p>

Appeal by the defendant, The Universal Machinery Corporation, Limited, from part of the 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 22d day of May, 1917, resettling an order made on the 3d day of May, 1917, granting defendant’s motion for a commission to take the deposition of Oscar Charles Selbach at London, England, as a witness on behalf of defendant, upon the following condition:…

Appeal by the plaintiffs, Continental Securities Company and another, and by American Surety Company, surety on their bond, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of March, 1917, confirming the report of a referee appointed to assess injunction damages for counsel fees, legal expenses, etc.

Appeal by William C. Egerton, contestant, from an order and decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 21st day of July, 1916, admitting to probate the will of Sarah A. Egerton, and construing its provisions. ' Deceased died December 18, 1915.

Appeal by the plaintiff, James H. Dahm, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bongs on the 27th day of September, 1916, upon the decision of the court sustaining defendant’s demurrer to a complaint for slander and dismissing the complaint. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.

Appeal by the plaintiff, Mayer S. Ginsburg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of January, 1917, upon the decision of the court dismissing the complaint after a trial at the Westchester Special Term. The action was brought to obtain an injunction and damages.

Appeal by the defendant, Mack Manufacturing Company, from part of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Dutchess on the 7th day of June, 1916, upon the decision of the court after a trial before the court without a jury. The judgment limited the appellant’s recovery herein to a claim against the trustee in bankruptcy of the chief contractor, the Bridgeport Construction Company.

Appeal by the defendant, Bankverein Suisse, from, so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of April, 1917, as authorizes the sheriff to retain property of the defendant which he had attached, until his poundage has been paid. The order further discontinued the action and discharged the attachment.

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 Steuben on the 27th day of April, 1916, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 5th day of May, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Roy P. M. Davis, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the 13th day of February, 1913, upon the report of a referee appointed to hear and determine the issues.

<p>Certiorari — when writ will not lie — act of board of supervisors in appointing commissioner of elections designated by county chairman not judicial — determination of right to hold public office — action in nature of quo warranto exclusive remedy — refusal of Attorney-General to bring action not assumed.</p> <p>Where two parties, each claiming to be chairman of a Republican county committee, certify a candidate for appointment as commissioner of elections, pursuant to section 194 of the Election Law, the board of supervisors in passing upon both designations, which are regular in form, and' in appointing one of said candidates, acts in a purely administrative and not judicial capacity, and, hence, certiorari to which the person holding the office has not been made a party is not a proper remedy to review the appointment.</p> <p>If the appointee is to be ousted from office, it must be through a direct action to which he is a party.</p> <p>The title to a public office should not be questioned collaterally and can only be determined in an action in the nature of quo warranto, which remedy is exclusive.</p> <p>It cannot be assumed that the Attorney-General will refuse to bring an action of quo warranto thereby leaving the petitioners without a remedy.</p> <p>A writ of certiorari will only lie for the review of determinations of judicial tribunals and of other tribunals when engaged in the exercise of powers of a judicial nature.</p> <p>Kruse, P. J., and Db Anqems, J., dissented, with memorandum.</p>

Appeals by the Lobsitz Mills Company and another, from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of January, 1917, denying motions to vacate the orders for the examination of the appellants herein in supplementary proceedings under section 299 of the Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62).

<p>Attorney and client — right of client to settle with adversary after judgment recovered — rights of attorney under contract entitling him to percentage of recovery — tender by client of one-half of settlement and taxable costs and payment thereof into court.</p> <p>Notwithstanding a contract of retainer between attorney and client giving the former a certain percentage of any recovery, the client retains complete control of the litigation, and he may at any time for any reason which seems satisfactory to him, however arbitrary, discharge his attorney and settle with his adversary as he thinks best, and in such case the attorney may recover only the reasonable value of the services rendered.</p> <p>The above rule obtains as well after the chent’s claim has ripened into judgment' as before.</p> <p>Thus, although an attorney having a right to one-half of any recovery under his contract of retainer had recovered judgment for his client, and an appeal therefrom was pending, the client had a right to settle with the defendant in that action for an amount less than the judgment recovered and the attorney was only entitled to half the amount for which settlement was made, together with the taxable costs.</p> <p>A judgment for the attorney for half the amount of the verdict recovered will be reversed, where the client after the settlement for a less amount, tendered one-half thereof together with taxable costs to the attorney and on his refusal to accept it paid the same into court.</p> <p>Evidence examined, and held, not to show any fraudulent intent on the part of the client in settling the action for a less amount than the judgment recovered.</p>

Appeal by the defendant, Frederick F. Proctor, 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 16th day of November, 1916, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Emily M. Keenan, as executrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 3d day of January, 1916, upon a decision of the court after a trial at the Saratoga Special Term.

Appeal by the defendants, Boorum & Pease Company and another, from two awards of the State Industrial Commission, entered in the New York city office of said Commission on the 23d day of January, 1917, and the 1st day of March, 1917, respectively, in connection with which the Commission certifies the following questions: “ (1) Should the compensation in this case be based on the average daily wage or salary of other employees of the same class as claimant, engaged in similar…

Certiorari issued out of the Supreme Court and attested on the 23d day of January, 1917, directed to Charles S. Wilson, as Commissioner of Agriculture of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in revoking the license issued to the relator under section 55 of the Agricultural Law.

Appeal by T. G. Patterson, Inc., and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 15th day of March, 1917.

Cross-appeals by the relator, The New York Central and Hudson River Railroad Company and by the defendant, The State Board of Tax Commissioners, and the intervenor, the City of Poughkeepsie, from orders of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of February, 1917, confirming the reports of a referee in certiorari proceedings to review certain special franchise assessments of the relator…

Appeal by the defendant, Natural Carbonic Gas Company, • from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 22d day of January, 1917, granting plaintiffs an extra allowance of costs.

<p>Appeal by William H. Frost, as administrator with the will annexed, from a decree of the Surrogate’s Court of the county of Chemung, entered in the office of said Surrogate’s Court on the 19th day of October, 1916, judicially settling his accounts herein.</p>

Appeal by the defendants, Julian P. Eydiup and others, 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 Schenectady on the 10th day of August, 1916, upon the decision of the court after a trial before the court without a jury in an action to foreclose a mechanic’s lien.

<p>Appeal by the defendant, Royal Indemnity Company, from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Chemung on the 2d day of April, 1917, granting plaintiff’s motion for a further bill of particulars and precluding defendant from giving evidence on the trial of such matters unless the bill of particulars is served as directed.</p>

<p>Appeal by the defendant, Ocean Accident and Guarantee Corporation, Limited, from an order of the Supreme Court, made at the Tioga Special Term and entered in the office of the clerk of the county of Chemung on the 2d day of April,-1917, denying its motion to change the place of trial from Chemung county to Dutchess county.'</p>

Appeal by the defendant, Leo Urban, from a judgment of the County Court of Wyoming county, entered in the office of the clerk of said county on the 16th day of December, 1915, convicting him of the crime of robbery in the first degree, and also from an order entered in said clerk’s office on the 27th day of December, 1916, denying his motion to correct the record of his conviction.

<p>Appeal from decree of Surrogate’s Court — practice — service of copy of decree with notice of entry — Code Civil Procedure, section 2756, construed.</p> <p>Since the amendment to section 2756 of the Code of Civil Procedure made by chapter 443 of the Laws of 1914, relating to the time within which appeals must be taken from a decree or order of the Surrogate’s Court, the service of a copy of a decree with notice of entry by a party who desires to appeal therefrom but did not enter said decree is not sufficient to set running the thirty days within which his appeal must be taken. In order to set the thirty days’ limitation running against him, a copy of the decree with notice of entry must be served upon the party intending to appeal therefrom by the other party who wishes to limit the time, and if the appeal be taken within thirty days of such service, it is timely,. although the appellant had previously served the decree and notice upon her opponent.</p> <p>Appeal by Addie Potts Flatauer, 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 5th day of June, 1917, denying a motion to require the attorneys for the executrix herein to accept service of a notice of appeal served by the appellant.</p>

<p>Surrogate’s Court — application for leave to intervene in proceeding to obtain approval of proposed contracts of administrator — claim of ownership of property which is subject-matter of proposed contract — application to intervene denied — jurisdiction of surrogate and limitation thereon.</p> <p>Where an administrator petitions the Surrogate’s Court for the approval of certain proposed contracts which he deems to be for the benefit of the estate, a person who claims to have been a purchaser from a prior administrator of part of the securities involved in the proposed contracts has no standing to intervene in the proceeding, or any right to a hearing.</p> <p>Nor has such third person a right to intervene to contest the jurisdiction of the Surrogate’s Court to approve the contract, for, if in fact the surrogate has no jurisdiction, no order that he may make in the premises will be of any controlling force or binding upon the third party.</p> <p>Wherever there is a want of authority to hear and determine the subject-matter of a controversy, an adjudication upon the merits is a nullity and does not estop even an assenting party. Moreover, the question of jurisdiction may be raised directly or collaterally whenever the power of the court to render the decision is brought in question.</p> <p>The Surrogate’s Court being of limited statutory jurisdiction has no power over the subject-matter of the controversy between the representative of the estate and said third person who seeks to intervene.</p> <p>The amendment to section 2510 of the Code of Civil Procedure enlarging the jurisdiction of the Surrogate’s Court to “ determine all questions, legal or equitable, arising between any or all of the parties to any proceeding,” etc., did not transform that court into one of general jurisdiction in law and equity, but only empowers it to deal with matters relating to the estate of a decedent.</p> <p>Thus, the question as to whether a prior administrator transferred certain property of the estate to one who seeks to intervene as aforesaid, does not relate in any manner to the property of the estate, but involves an issue as to whether a sale has been made, which is not a matter within the jurisdiction of the surrogate and which is, moreover, a controversy subsisting between living persons.</p> <p>The legality of the transfer of the property of the decedent must be tested in some direct proceeding brought for that purpose, as the surrogate has no jurisdiction.</p>

Appeal by the defendant, James M. Andrews, 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 6th day of March, 1917, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 7th day of March, 1917, denying defendant’s motion for a new trial made, upon the minutes.

Appeal by the plaintiff, Samuel Orunsten, from a judgment of the County Court of Albany county, entered in the office of the clerk of said county on the 21st day of February, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also an appeal is taken from the order of nonsuit.

<p>Railroad — negligence — injury to steam roller by passing freight train—• evidence not justifying recovery— when station agent has no authority to give assurance that trains are not approaching — railroad furnishing car placed upon siding gives no implied license to block main line — when engineer not bound to foresee that main track may be blocked by proximity of steam roller — appeal.</p> <p>Where a steam roller which the plaintiff was loading upon a freight car on a siding for the purposes of transportation was struck and injured by an unscheduled freight train moving on the main track, a recovery cannot be based upon the fact that the defendant’s station agent assured the plaintiff that no train was coming which would interfere with the process of loading the steam roller upon the ear, if the agent had nothing whatever to do with the operation of trains and his office contained no telegraph through which orders for the operation of trains were transmitted.</p> <p>The defendant by placing a ear upon a siding to be loaded with the plaintiff’s steam roller did not give an implied license to the plaintiff to block the main track.</p> <p>Nor was the engineer of the defendant’s locomotive bound to anticipate the presence of a steam roller upon or so near the main track that his engine would collide with it, owing to the fact that the plaintiff’s employees had miscalculated the amount of clearance which should have been left. Where no reversible error was made by the trial court and that court would have been justified in dismissing the complaint, it did not enlarge the plaintiff’s rights by submitting the questions of negligence and contributory negligence to the jury.</p> <p>Kellogg, P. J., and Lyon, J., dissented.</p>

Appeal by the defendant, Ford Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga 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 4th day of November, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Workmen’s Compensation Law — failure of insurance carrier to file notice of intention to cancel policy—-when respective liabilities of insurance carriers will not be determined on appeal from an award — jurisdiction of Industrial Commission and of Appellate Division.</p> <p>Where an insurance carrier under the Workmen’s Compensation Law did not file in the office of the State Industrial Commission a notice of intention to cancel its contract of insurance, as required by the statute, and no notice of an intention to cancel the policy was given to the employer, the State Industrial Commission, finding by its records that the policy was in effect, had a right to charge a proportion of liability to a claimant against said insurer, although another company had insured the employer after the bankruptcy of the latter.</p> <p>Where the amount of the award of the claimant and his right thereto are unquestioned, the Appellate Division on an appeal by said insurer from the award will not determine the respective obligations of the two insurers to pay the award, for that is a question between them which is not within the jurisdiction of the State Industrial Commission, nor within the jurisdiction of the Appellate Division on an appeal from the award. The award is primarily against the employer and as the insurance carriers have contracted to assume the liability of the employer, the question as to how they are to share this liability is of no consequence to either employer or employee, nor has the Industrial Commission jurisdiction over the question.</p>

Appeal in the first case by the defendants, Irving S. Edsall and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 29th day of November, 1916, in so far as it directs the payment of $100 to the State Treasurer.

Certiorari issued out of the Supreme Court and attested on the 9th day of September, 1916, directed to Martin Saxe, and others, composing the State Tax Commission, and the State Tax Commission, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in fixing the franchise tax of the relator for the year ending October 31, 1913,

<p>Tax — assessment of street laid out and opened over right of way of railroad company — special franchise tax upon railroad crossings over city streets — effect of non-completion of bridges over highway at time of assessment.</p> <p>A street laid out and opened across a right of way owned and occupied by a railroad company is not subject to a special franchise assessment.</p> <p>Where a railroad company owns franchises necessary for the construction and operation of its railroad and for increased facilities, among which were franchises to construct and operate bridges carrying the tracks over certain highways, the mere fact that the work was not completed at the time of an assessment did not deprive said company of its franchises so as to prevent their assessment, although said fact may have had some bearing upon their value.</p> <p>The power and authority given to the Board of Railroad Commissioners to consent to the change of location and the increase of the facilities of the railroad company constituted in effect an amendment of its chartered powers.</p> <p>Said company, having joined with the city in the petition for the elimination of the grade crossings and having accepted benefits under the order of the Board of Railroad Commissioners, may not be heard to say that it was not the owner of the franchises thus bestowed.</p>

<p>Appeal by the defendant, William P. Dixon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 14th day of October, 1916, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 19th day of October, 1916, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Tax — transfer tax — amount imposed on estate by Federal Estate Tax Act of 1916 should not be deducted in assessing State transfer tax — nature of Federal act of 1916 — said tax not unconstitutional on the ground that it is not in proportion to census — distinction between tax upon property and tax upon transfer thereof.</p> <p>The Federal estate tax imposed by title 2 of the United States Revenue Act approved September 8, 1916, should not be treated as an expense of administration in determining the amount of the State transfer tax, or deducted from the assets of the estate prior to assessing the State tax.</p> <p>The tax imposed by said Federal act is upon the transfer of a net estate and not upon the separate succession to the property of eaeh legatee or distributee, as was the ease under the former act of 1898.</p> <p>Said Federal act of 1916 is not in contravention of the clause of the Federal Constitution providing, “ no capitation or other direct tax shall be laid unless in proportion to the census,” for the tax is imposed, not upon the net estate itself, but upon the transfer thereof.</p> <p>The fact that a tax is to be paid out of property does not render it a tax on property.</p> <p>A tax when imposed on the method or privilege of acquisition is a transfer tax.</p> <p>Qucere, as to whether in determining the amount of the net estate for the purpose of assessing the Federal tax the sum paid on account of the State transfer tax should be deducted from the gross estate.</p> <p>Kellogg, P. J., and Woodward, J., dissented.</p>

Separate appeals by the defendant, American Molasses Company of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 28th day of February, 1917, denying defendant’s motion for a bill of particulars, and also from an ex parte order of a justice of the Supreme Court, entered in said clerk’s office on the 22d day of March, 1917, vacating and setting aside a prior order for the…

Appeal by the defendants, Dwight Divine & Sons and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 6th' day of February, 1917.

Appeal by the defendants, Moehle Lithographic Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 1st day of December, 1916.

<p>Grime — hunting without a license — sufficiency of information — failure of information to state that defendant was not within statutory exemption — failure of defendant to object to information upon said ground.</p> <p>A judgment convicting the defendant of hunting without a license, in violation of section 185 of the Conservation Law, will not be reversed on the theory that the information did not charge a crime in that it did not allege that the defendant was not within the exceptions specified in said section, where the defendant waived the alleged insufficiency of the information by appearing, pleading, and proceeding with the trial with the sole objection that the information was insufficient because it was made “ on information and belief and hearsay,” and where it clearly appears that the defendant knew with what offense he was charged and for what crime he was being tried.</p> <p>Woodward and Sewell, JJ., dissented, with opinion.</p>

Appeal by the defendant, John F. McIntyre, 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 denying his motion for judgment on the pleadings.

Appeal by Louis Bendet 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 August, 1916, vacating executions issued pursuant to section 1391 of the Code of Civil Procedure directing the sheriff to levy against the salary due and owing and to become due and owing to Abraham Gussow to satisfy a judgment which the appellant had duly obtained against him.

Return of an order to show cause why an absolute order of prohibition should not issue commanding the respondents, The People of the State of New York and James A. Delehanty, to desist and refrain from taking any further proceedings in an action in the nature of quo warranto brought by The People of the State of New York on the relation of James A. Delehanty and by said Delehanty against John F. McIntyre at an extraordinary Trial Term of the Supreme Court appointed to be…

<p>Appeal by the contestants, Jerusha Strong and another, from an order of the Supreme Court, entered in' the office of the clerk of the county of Schenectady on the 6th day of July, 1916; directing a verdict herein in favor of the proponent, after the jury had disagreed, and also from a decree of the Surrogate’s Court of the county of Schenectady, entered in the office of said Surrogate’s Court on the 7th day of July, 1916,-admitting said letter and codicil to probate, pursuant to the said order.</p>

Appeal by the defendants, Ellintuch & Yarfitz and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 28th day of September, 1916.

Appeal by the defendants, Hetzler Bros, and another, from six separate awards of the State Industrial Commission in favor of the claimant, entered in the office of said Commission prior to December 11, 1916.

Appeal by the defendant, St. Regis Paper Company, and by Jesse S. Phillips, as Superintendent of Insurance of the State of New York and liquidator of The First Mutual Liability Insurance Company of New York, from an award of the State Industrial Commission made on the 3d day of January, 1917.

<p>Workmen’s Compensation Law — injuries caused by assault — when payments made by assailants to person injured should be deducted from amount of award.</p> <p>Where a person employed as a paperhanger was assaulted and severely injured by members of a labor union because he would not go upon a strike and the assailants were given a suspended sentence and paroled in a criminal proceeding upon the condition that they make a certain payment to the complaining witness and make certain weekly payments so as to make good the loss of work which the complainant suffered by reason of the assault, the amounts so paid should be applied to reduce the employer’s liability under the Workmen’s Compensation Law where the person assaulted agreed to accept the compensation awarded by the Industrial Commission in lieu of any right or cause of action which he might have, and assigned and set over to the Commission, for the benefit of the State insurance fund, his right, title and interest in any cause of action for the injury against any person, as he was required to do by section 29 of the Workmen’s Compensation Law.</p> <p>The payment made to the person injured by the assailants was not a fine in a criminal action payable to the People, and the award should have been made only for the difference between the amount allowed by the Commission and the payments which had been made by the assailants up to the time the award was made.</p>

<p>Workmen’s Compensation Law — injury resulting in partial disability through loss of a portion of bone from finger tips — when award for permanent disability unauthorized — erroneous award based on probable earning of infant when he shall reach majority — injury to infant under sixteen years of age employed.in violation of Labor Law — illegal employment no defense to employer or insurance carrier.</p> <p>Where it clearly appears that an employee who was injured while stamping sheet metal lost only one-fourth of an inch of the bone of an index finger and one-eighth of an inch of the bone of a second finger and the fingers had practically the normal fleshy projections at their ends, it was error for the Industrial Commission to make an award based on a permanent partial disability. The disability was only partial and the award should have been sixty-six and two-thirds per centum of the difference between the claimant’s average weekly wage and his wage earning capacity during the continuance of the partial disability.</p> <p>Where the claimant at the time of his injuries was about fourteen years of age and the disability was only partial, it was error for the Industrial Commission to base an award upon the probable increased compensation of the claimant when he shall arrive at his majority. Had the disability been permanent a different question would be presented.</p> <p>Where the carrier’s contract of insurance required it to pay, in the manner provided by the Workmen’s Compensation Law and all amendments thereto, all obligations for compensation imposed by such law upon the employer, and the law itself was made a part of the contract of insurance, the insurer cannot escape liability upon the ground that the employment of the claimant was in violation of section 93 of the Labor Law which prohibits the employment of children under sixteen years of age on metal or paper cutting machines. This is so, although the policy only covered employees “ legally employed,” if it was stated that nothing, in the policy should be construed as excluding an employee who might be entitled to compensation under the statute.</p> <p>The fact that the claimant was employed in violation of the Labor Law furnishes no defense to payment of compensation to either the employer or insurance company.</p>

<p>Appeal by the defendants, Bowen Manufacturing Company and another, from an award of the State Industrial Commission, entered in the Albany office of said Commission on the 28th day of February, 1917.</p>

<p>Trespass — complaint alleging interference by defendants with plaintiff’s moving picture business — allegations stating single cause of action.</p> <p>A complaint in an action by the owner of a moving picture business against college students, which alleges in the 1st and 2d paragraphs the ownership of the theatre and its location in the village where the defendants attend college, and in the 3d, 4th and 5th paragraphs alleges certain unlawful acts by the defendants on specified days, followed by a general allegation of a preconceived purpose to destroy the plaintiff’s business, states but one cause of action.</p> <p>The allegations show one primary right of the plaintiff and one wrong done by the defendants through many different trespasses, and there can be but one recovery. Each day’s trespass does not constitute a separate, distinct and independent transaction.</p>

<p>Appeal by the American Surety Company of New York, surety upon the bond of Harry Pinchefski, as general guardian of Jacob Pinchefski, an infant, from a decree of the Surrogate’s Court of the county of Schenectady, entered in the office of said Surrogate’s Court on the 27th day of July, 1915, judicially settling the accounts herein.</p>

Appeals by the relator, John L. Walsh, and by the intervenors, Republican County Committee of the County of New York 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 11th day of August, 1917, denying in part an application for a peremptory writ of mandamus compelling the board of elections to print the names of candidates for certain judicial offices on the official…

Appeal by the defendants, McCarthy & Townsend and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 2d day of November, 1916.

Appeal by the defendant, New York Life Insurance Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of said county on the 7th day of January, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Certification by the State Industrial Commission of a question to the Appellate Division, Third Department.</p>

Appeal by the plaintiff, Lena Donohue, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Fulton on the 21st day of April, 1917, directing plaintiff to serve a bill of particulars.

Separate appeals by the Central Trust Company of New York, as trustee, appearing specially, and by Pacific Improvement Company, appearing specially, from an order of the Supreme Court, made at the Allegany Special Term and entered in the office of the clerk of the county of Allegany on the 21st day of May, 1917, which authorized and directed Frank Sullivan Smith, as receiver, to issue in exchange, at par, for like certificates maturing June 1, 1917, his certificates of…

Appeal by Herbert S. Sisson, as State Commissioner of Excise, and another from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of September, 1917, directing the issuance of a peremptory writ of mandamus requiring the appellants to accept the relator’s application and issue to her a liquor tax certificate to traffic in liquors in the town of Evans in the county of Erie.

Appeal by the defendants, Josephine E. Jones and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 30th day of August, 1916, upon the decision of the court after a trial at the Yates Equity Term.

<p>Depositions — commission to Holland — vacation of stay of proceedings pending execution and return of commission.</p> <p>Where, in an action by an assignee of a merchant in Holland to recover damages for the agreed price of goods sold for shipment in this country, it appears that the cause of action accrued some eight months before the present war began; that the action was not begun for nearly two years after it accrued; that, although the answer contains denials which, if persisted in, will make it necessary for plaintiff to prove the making of the contract and the shipping of the merchandise, the real and only controversy is as to whether or not the goods so shipped were of merchantable quality; that plaintiff’s order for a commission to Holland was so amended as to grant a stay of proceedings with leave to defendant to move to vacate in case the execution and return of the commission should be unreasonably delayed, and that the plaintiff has taken no steps to procure the issuance of the commission and the settlement of the interrogatories, and seeks to have the stay continued until after the end of the war, a motion to vacate the stay may be granted under the circumstances, if the defendant will stipulate that the contract was made as alleged in the complaint, and that the defendant refuses to accept delivery solely by reason of the condition of the goods; otherwise, the motion will be denied.</p>

<p>Elections — application to review action of inspectors of primary election — examination of ballots — marks invalidating ballots.</p> <p>Ballots are void where erasures appear upon the face thereof.</p> <p>Where a voter places the figure 2 in the voting square before the name of a candidate numbered 20, and then superimposes a cross mark upon it, the ballot is void.</p> <p>A ballot which contains an extra cross mark outside of the voting square and not in front of the name of any candidate is void.</p> <p>Á ballot containing the figure 4 in the voting space so numbered, and a cross mark superimposed thereon, and also containing a hair line or involuntary mark in another voting space, is void.</p> <p>A ballot containing an ink mark on the border thereof which might have been placed there in the process of counting and canvassing should not be declared void where it does not appear that the voter himself placed said mark upon the ballot.</p> <p>A ballot containing a solid black diamond mark in the voting square is void. A ballot having a curved horizontal mark in the voting space in front of the name of the candidate is void.</p> <p>A half cross in a voting square invalidates a ballot.</p> <p>A short line in one voting space, probably the commencement of a cross mark, invalidates the ballot, although the voter made a' proper mark in another space.</p> <p>A ballot having a smudge opposite a voting space, which may be interpreted to be a thumb mark, the cross mark in front of the candidate’s name being left firm and clear, and the smudge being to the left of said mark and not interfering with it, is not void.</p>

<p>Attorney at law disbarred — solicitation of contributions to finance investigation knowing there was no chance of success — title to property of Trinity Church in the city of New York.</p> <p>Attorney at law disbarred for taking part in soliciting contributions indiscriminately towards defraying Ms expenses of alleged investigations made and to be made by Mm as to the validity of the title to the property owned by Trimty Church in the city of New York, although he knew that there was no chance of success, and had no new information and was unable to advance any theory upon which probable success could be based, wMch had not already been advanced to and been disposed of by the courts. History of litigation as to title to property of Trinity Church stated.</p>

Appeal by the defendant, Standard Steel Sections, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 2d day of May, 1916, upon the decision of the court after a trial at the Bronx Special Term.

Appeal by the plaintiff, Samuel Sisskin, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of March, 1917, reversing a judgment of the City Court of the City of New York, entered in the office of the clerk of said court on the 1st day of December, 1916, and further reversing an order of said court and dismissing the complaint.

Appeal by the defendant, Standard Shipbuilding Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of September, 1917, denying its motion to require plaintiffs separately to state and number their causes of action.

Appeal by Suffolk County Trust Company, as guardian, 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 June, 1917, determining the lien of the respondent in a certain action, and also from an order entered in said clerk’s office on the 6th day of August, 1917, amending said order, and also from an order entered in said clerk’s office on the 10th day of August, 1917,…

<p>Deposition — examination of defendant before trial — scope of order.</p> <p>An order for an examination of a defendant before trial should not direct an examination concerning the matters which are relevant to the issues in the action and are stated in the plaintiff’s affidavit. The examination should be confined to the issues upon which the plaintiff has the affirmative.</p>

<p>Motion by the defendant, Federal Terra Cotta Company, for a reargument or for leave to go to the Court of Appeals.</p>

Appeal by the defendant, May 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 20th day of September, 1917, denying its motion to vacate the service of the summons and complaint herein.

Appeal by the defendant, the Board of Education of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 7th day of February, 1916, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of March, 1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Attachment — requisites of moving papers — conclusions of fact insufficient — attachment vacated.</p> <p>An affidavit in support of an attachment must contain evidence from which the court can determine that the ultimate facts stated in the pleading can be substantiated.</p> <p>, Moving papers upon which an attachment was granted examined, and held, insufficient to support the attachment which should be vacated in that no facts were stated showing that the plaintiff’s assignor made the necessary tender to the defendant charged with breach of contract to deliver goods, or showing the assignor’s readiness, willingness and ability to pay for the goods, which were necessary allegations to the cause of action, the affidavit in this respect containing mere conclusions of fact. Moreover, the attachment should be vacated where the assignor’s contract was made with the defendant’s agent and the only proof of such agency was an agreement that all sales made by the agent should be approved by the defendant and the moving papers contained no proof that the assignor’s contract was ever so approved.</p>

Appeal by the plaintiff, Joseph Leifer, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of January, 1917, reversing a judgment of the City Court of the City of New York and dismissing the complaint.

Appeal by the defendants, The City of New York 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 4th day of December, 1916, upon the verdict of a jury for $2,250, and also from orders entered in said clerk’s office on the 27th day of November, 1916, and the 2d day of December, 1916, respectively, denying defendants’ motions for a new trial made upon the minutes.

Appeal by the defendants, The City of New York 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 4th day of December, 1916, upon the verdict of a jury for $500, and also from orders entered in said clerk’s office on the 27th day of November, 1916, and the 2d day of December, 1916, respectively, denying defendants' motions for a new trial made upon the minutes.

' Appeal by the petitioner, Max Greenwald, 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 denying his application for a peremptory writ of mandamus to compel the board of elections to accept the independent certificate of nomination, nominating Norbert Blank for justice of the Municipal Court, Borough of The Bronx, Second District.

Appeal by the defendant, H. M. Goldstein Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of December, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of December, 1916, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, United States Mortgage and Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Fannie J. Goepel, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of New York on the 13th day of February, 1913, upon the verdict of a jury rendered after the court had granted defendant’s motion to dismiss the first cause of action set' forth in the complaint, so far as it concerned profits which plaintiff claimed to have lost.

<p>Contract — account stated — rendition of monthly statements of account—Statute of Limitations — when statute begins to run — addition of interest to monthly statements.</p> <p>Where a firm of brokers rendered a statement to a customer of balances due from the customer after transactions between them had ceased and the statement was received, examined and retained by the customer without exception, there was an account stated which gave rise to a cause of action for the entire balance due which is independent of the original cause of action on the account if the Statute of Limitations had not rim against any of the items of the account constituting the original transaction.</p> <p>But the broker by continuing to send such monthly statements did not, by including monthly interest as it accrued, continue to keep the account alive as against the six-year Statute of Limitations which began to run from the date the account was first stated.</p>

<p>Principal and agent — broker’s action for commissions — evidence not justifying recovery.</p> <p>Broker’s action for commissions claimed to have been earned by procuring a purchaser for real estate. The action is brought against the defendant personally, he being the president and chief stockholder of a corporation which held title to the lands. On the trial it appeared that although the plaintiff’s original agreement was made with the defendant he subsequently learned that the title to the lands was in the corporation, that it was in the hands of a receiver and that a sale could not be effected unless consent of creditors could be obtained. The lands were never sold to the customer produced by the plaintiff owing to the fact that the sum offered by him was insufficient to satisfy the creditors and the lands were subsequently sold by the corporation to another person. On all the evidence, held, that the plaintiff was not entitled to recover in that the services performed were in negotiating a sale of the premises for the corporation which he knew would depend upon obtaining the consent of the creditors, and that his original contract of employment was voluntarily modified by mutual consent.</p>

Appeal by the defendant, Western Insurance Company of Pittsburgh, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of February, 1917, affirming a judgment of the City Court in the City of New York, with notice of an intention to bring up for review the original judgment of the City Court, entered in the office of the clerk of said court on the 30th…

<p>Appeal by the plaintiffs, John Beverly Robinson and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of March, 1917, upon the decision of the court dismissing the complaint and granting judgment on defendant La Marsh’s counterclaim after a trial at the New York Special Term.</p>

Appeal by the defendant, Albert Romeike & Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1917, upon the decision of the court after a trial at the New York Special Term. , The judgment restrained the defendant from using its corporate name or the name “ Romeike ” in connection with its corporate name or with its business.

Certiorari issued out of the Supreme Court and attested on the 28th day of October, 1916, directed to Martin Saxe and others, as and constituting the State Tax Commission of the State of New York, commanding them to certify and return to the clerk of the county of Albany all and singular their proceedings had in assessing a franchise tax against the relator.

Appeal by the defendant, The Collier Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1917, denying its motion to vacate a judgment and to enjoin the sale under execution thereon of certain personal property.

Appeal by the defendant, The Collier Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1917, denying its motion to vacate a judgment and to enjoin the sale under execution thereon of certain personal property.

<p>Landlord and tenant — action to recover damages for constructive eviction — alleged breach of covenant of quiet enjoyment caused by rain water and backing up of sewage— when payment of rent prerequisite to suit for breach of covenant — failure to excuse non-payment of rent — when landlord not bound to make repairs — reservation by landlord of access to make repairs not equivalent to covenant to do so — pleading — reply —■ counterclaim to claim for rent.</p> <p>A tenant who has failed to pay rent cannot recover damages from her landlord, claimed to have been caused by a constructive eviction owing to the fact that dampness and rain water permeated the walls and sewage backed up in a courtyard in times of heavy rain, unless she has excused her failure to pay rent.</p> <p>A tenant who has failed to pay rent cannot recover for a breach of her landlord’s covenant for quiet enjoyment without first excusing her own default.</p> <p>A failure to pay rent is not excused on the theory that the landlord discharged waters from other premises upon the demised premises where the evidence shows that no water fell upon the plaintiff’s premises save such as was discharged from the heavens.</p> <p>Nor is the failure to pay rent excused by the contention that the landlord allowed the walls and roof of the premises to become in disrepair if the lease contained no provision whatever requiring the landlord to make repairs.</p> <p>It seems, moreover, that even if the two foregoing excuses were valid and supported by the evidence they did not excuse a failure to pay rent, for a covenant of quiet enjoyment and a covenant to repair are independent . covenants and a breach thereof by the landlord is no excuse for a tenant’s failure to pay rent while she remains in possession.</p> <p>The failure to pay rent is not excused by a clause annulling the lease if the premises became wholly unfit for occupancy by reason of fire, water, action of the elements or partial destruction, as there was no destruction of the premises either by fire or the elements.</p> <p>The landlord is not responsible for alleged injury to the plaintiff’s goods caused by the backing up of water from the city sewer in times of heavy rain, for the landlord had no control of the situation and the responsibility, if any, lies with the municipality.</p> <p>A provision in a lease giving the landlord right of access to make repairs for the safety or preservation of the building as he may deem necessary cannot be enlarged by construction into a covenant to make repairs. Held, that a judgment for the plaintiff should be reversed and a judgment for rent due directed in favor of the defendant.</p> <p>A tenant in a reply to a landlord’s counterclaim for rent cannot set up a counterclaim for damages chargeable against rent.</p>

Appeal by The City of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of March, 1917, in so far as it sustains certain objections to the confirmation of the report of the commissioner of assessment.

Appeal by Frank S. Senior and another, 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 or about the 22d day of October, 1917, denying their motion for a peremptory writ of mandamus herein.

Appeal by the relator, Soeurbee, Incorporated, 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 July, 1917, granting a motion to quash a writ of certiorari.

Appeal by the defendants, Lawson Purdy and others, as commissioners, 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 June, 1917, denying their motion to quash a writ of certiorari.

■ Appeal by the relators, Louise Baier 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 9th day of July, 1917, denying their motion for a peremptory writ of mandamus.

<p>Appeal by the petitioners, Isaac Lahm 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 denying their motion for a summary order under " section 475 of the Judiciary Law.</p>

Appeal by the defendant, Samuel P. Tull, 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 December, 1916, upon the verdict of a jury.

Appeal by the defendant, Morris Schinasi, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1917, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of' March, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Morris Schinasi, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of Maich, 1917, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 15th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph Liebling, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of September, 1917, requiring plaintiff to amend his complaint so as to separately state and number the causes of action.

Appeal by the defendant, Jacob V. Bootmann, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1917, granting plaintiff’s motion for a temporary injunction.

<p>Contract — agreement of real estate broker to share commissions — additional commissions paid by principal to person assisting agent — when receipt of additional commissions not fraud as against agent — right of agent to compel associate to account — written modification of contract without consideration.</p> <p>Suit to compel the defendant, who was employed by the plaintiff to assist him in effecting a sale of oil wells, to account for a portion of commissions received by the defendant for negotiating such sale. It appeared that the plaintiff was employed by the owners of the oil properties to procure a purchaser therefor and was to receive for his services five per cent as a commission, there being no statement that the commissions were to. be limited to said percentage on cash received on the sale. The plaintiff employed the defendant to aid him in finding a purchaser and agreed to pay the defendant three-fourths of the five per cent commissions to which the plaintiff might become entitled. The properties were finally sold to a corporation which paid to the owners as a consideration certain moneys and issued to them a certain portion of its capital stock. Pending the negotiations for the sale the owners of the oil properties made an agreement with the defendant to pay him commissions in addition to those he would receive from the plaintiff if a sale were effected, and under this agreement the defendant actually received certain stocks of the purchasing corporation, and it is to compel the defendant to account therefor that the plaintiff sues.</p> <p>Held, that as the defendant’s contract with the plaintiff entitling him to three-fourths of the plaintiff’s commissions did not require the defendant to use his best efforts to make a sale there was no partnership or joint venture between them, and that the defendant by accepting additional commissions from the owners of the property did not violate any duty that he owed to the plaintiff;</p> <p>That the plaintiff was entitled to compel the defendant to account for one-fourth of the five per cent to which the plaintiff was entitled under his contract with the owners, including the value of stocks received by the defendant, for the commissions were not to be based solely upon cash received on the sale.</p> <p>It further appeared that while the plaintiff was ignorant of the owners’ agreement to pay additional commissions to the defendant, he was induced to send a letter to the defendant stating that the latter should look to the owners of the oil properties for his commissions which could be paid directly to Mm and further acknowledging that the defendant had no further obligations to the plaintiff.</p> <p>Held, that the letter was ineffective to alter the plaintiff’s rights under the original contract, for, if it were intended to effect a modification of said contract, there was no consideration and at the most it could only operate as an estoppel against the owners of the oil properties in case the plaintiff were seeking to recover from them instead of from the defendant.</p>

Appeal by the defendant, The Standard Gas Light Company of the City of New York, from a 'judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of New York on the 20th day of February, 1917, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 14th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by thé defendant, Katherina Dohl, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1916, resettling a prior order entered in said clerk’s office on the 6th day of April, 1916, sustaining plaintiff’s demurrer to certain affirmative defenses in appellant’s further amended answer.

Appeal by the defendant, Seubert Bearing Company, from an order of the Supreme Court, made at the New York Special Terra and entered in the office of the clerk of the county of New York on the 19th day of September, 1917, denying defendant’s motion to strike out certain parts of the complaint as irrelevant and redundant.

<p>Appeal by the petitioner, John Mahoney, 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 August, 1917, denying his motion for a writ of mandamus to compel the board of education to prepare and forward payrolls, vouchers, etc., covering compensation due the petitioner for services as janitor of a vacation playground conducted in connection with a public school.</p>

Appeal by the defendant, William A. Prendergast, as comptroller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of August, 1917, granting relator’s motion for a peremptory writ of mandamus requiring the appellant to pay a change of grade award with interest from the date of the commencement of the work to the date of the payment of the award.

Appeal by Edward F. Boyle and others, constituting the board of elections of the city of New York, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 23d day of October, 1917, granting the application herein.

<p>Appeal by the defendant, Sarah L. Hawks, from a final ' order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Rockland on or about the 21st day of April, 1917, directing that a writ of mandamus issue commanding the Honorable Albert H. F. Seeger, county judge of Orange county, and the County Court of said county, to vacate an order suspending, during good behavior, the sentence of imprisonment imposed on one Sarah L. Hawks after conviction in the County Court, upon plea of guilty to an indictment charging a violation of the Liquor Tax Law and directing the enforcement of such sentence; and from the order of the County Court, made on the 16th day of May, 1917, in obedience to the said writ.</p>

Appeal by the defendant, Central Trust Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, .1917, overruling a demurrer to the complaint.

<p>Appeal by the defendants, Lawson Purdy and others, as commissioners of taxes and assessments, 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 May, 1915, vacating, with costs, a certain assessment of $500,000 for the year 1914, made by the defendants against the property of the relator in the borough of Manhattan.</p>

Appeal by the defendant, The E. M. P. Producing Corporation, from two determinations and orders of the Appellate Term of the Supreme Court, one in each action, in plaintiff’s favor, entered in the office of the clerk of the county of New York on the 1st dáy of February, 1917, affirming judgments of the Municipal Court of the City of New York, borough of Manhattan, Fifth District, entered upon verdicts of a jury, and defendant also appeals from the original judgments of the…

Appeal by the plaintiff, Frederick W. Wehrum, 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 4th day of April, 1917, dismissing the complaint upon the merits after a trial before the court without a jury.

Appeal by the plaintiffs, Maldonado & Company 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 24th day of April, 1916, granting the separate motions of the defendants for judgment on the pleadings, consisting of a complaint and answers, upon the ground that the complaint failed to state a cause of action.

Appeal by the defendant, William J. Klingler, 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 15th day of November, 1916, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case.

Appeal by the defendants, William F. Connell and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 20th day of September, 1916, upon the report of a referee appointed to hear and determine the issues.

Appeal by Harrison C. Glore 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 Kangs, determining a certificate of independent nomination, filed in his behalf as a candidate of the Fusion party, to be insufficient, invalid and illegal, and restraining the board of elections from accepting or filing the same or placing the emblem of said Fusion party opposite the name of said Harrison C. Glore on…

Appeal by the defendant, Morse Dry Dock and Repair 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 21st day of October, 1916, upon the verdict of a jury for $7,500, and also from orders entered in said clerk’s office on the 23d and 24th days of October, 1916, respectively, denying defendant’s motions to set aside the verdict and for a new trial made upon the minutes.

<p>Insurance — action on fire insurance policy — defense — keeping of benzine on premises in violation of express terms of policy — admissibility of evidence of trade custom to excuse violation of terms of policy.</p> <p>Where a fire insurance policy provided that “ This entire policy * * * shall be void * * * if (any usage or custom of trade or manufacture to the contrary notwithstanding) there be kept, used or allowed on the above described premises benzine * * and the subject of the insurance was described in the policy as “ stock of merchandise consisting principally of laces, trimmings and embroideries, including boxes, packages, samples, labels and supplies,” benzine kept on the premises by the insured and used for dyeing purposes is not covered by the word “ supplies,” although it was customary to keep and use it for such a purpose.</p> <p>Hence, the keeping of benzine on the premises, although not more than one gallon at .a time, constituted a violation of the express terms of the policy, and is a defense to the enforcement thereof.</p> <p>The words “ any usage or custom of trade or manufacture to the contrary notwithstanding,” absolutely forbid the reception of evidence of a trade custom to excuse the plain violation of the terms of the policy.</p>

Appeal in each case by the defendant, Francis Hillenbrand, from judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of October, 1916, upon verdicts of a jury, the verdict in the first action being for $7,500 arid in the second action for $1,000, and also from orders entered in said clerk’s office on the 24th day of October, 1916, denying defendant’s motion in each case for a new trial made…

<p>Landlord and tenant — negligence of landlord in failing to keep carpet on stairway of apartment house in proper repair — evidence — testimony as to the condition of carpet and repairs made after accident incompetent — objection to testimony read from record of former trial.</p> <p>Where in an action by an infant to recover for personal injuries sustained through the alleged negligence of the defendant, the owner of an apartment house, in failing to keep the carpet on the stairway leading from the second floor to the ground floor in a proper state of repair, there is a sharp conflict in the evidence presenting a close question of fact on the issue with respect to defendant’s negligence, it is error to permit the plaintiff to read a part of the testimony on a former trial of defendant’s janitress as to a second inspection of the carpet made by her more than an hour after the accident, and after the first inspection, to the effect that she saw the top, step carpet had been pulled up and that she nailed a piece of carpet over the front of the step and tacked it down, there being no evidence that the condition of the carpet at the time of the second inspection was the same as at the time of the first.</p> <p>Under the provisions of section 830 of the Code of Civil Procedure, testimony so read is to be regarded as if given by the witness at the trial and is subject to any objection that may be taken at the time it is so read. It was also error to require the defendant to answer on cross-examination, over objection and exception that it was incompetent and immaterial, that two or three hours after the accident and after the time of his inspection, a strip of carpet was nailed across the step by direction of his son.</p>

Appeal by the plaintiff, Benjamin F. Canaday,. from a judgment of the Supreme Court in favor of the defendant X Amusement Company, Inc., entered in the office of the clerk of the county of New York on the 28th day of March, 1917, upon a dismissal of the complaint as to the X Amusement Company, Inc., at the close of the case.

Appeal by the defendant, Renault Selling Branch, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of February, 1917, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Samuel W. Peck, 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, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Peter Laskofsky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of July, 1917, denying plaintiff’s motion to set aside a verdict and the judgment entered thereon, and for a new trial, upon the ground of newly-discovered evidence.

Appeal by the defendants, Felix Herzfeld 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 July, 1917, denying their motion for judgment dismissing the complaint and for other relief.

<p>Crime — acts endangering public peace — advocating resistance to conscription law — Federal jurisdiction.</p> <p>A person who organizes an outdoor meeting in a crowded city street and urges his auditors to refuse to obey the laws of Congress on the matter of conscription and not to take up arms against Germany, may be convicted of disturbing and endangering the public peace under section 43 of the Penal Law.</p> <p>It seems, that such acts may also be an offense against the Federal statutes. But the Federal jurisdiction does not take away the power of the courts of this State to punish such an offense against the public peace.</p>

Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. On April 26, 1907, Mr. William Duryea, of Nyack, died, leaving an estate exceeding $700,000. By a will made in 1905 he provided for two successive trusts.

Appeal by Brown & Slosson, attorneys, 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 Ulster on the 30th day of June, 1917, granting a motion to cancel their hens.

<p>Appeal from a judgment of the Supreme Court, Criminal Term, rendered on February 4, 1916, upon a verdict convicting the defendant of manslaughter, first degree, and from orders denying motions for a new trial and in arrest of judgment.</p>

Appeal by an administrator from a decree of the surrogate of the county of New York, entered August 19, 1916, vacating and setting aside a decree judicially settling, the account of the administrator.

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

<p>Disciplinary proceeding 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>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office March 30, 1917, dismissing the complaint for insufficiency of evidence upon a trial at Special Term.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New Y ork county clerk’s office November 25, 1916, upon the verdict of a jury, and also from an order entered January 19, 1917, denying the defendant’s motion for a new trial.</p>

<p>Appeal from an order entered in the New York county clerk’s office January 2, 1917, setting aside a verdict and granting a new trial.</p>

Appeal by the defendants, Cassius M. Lawson and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 22d day of December, 1916, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant, Neal D. Becker, as executor and trustee, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Nassau on the 20th day of October, 1916, upon the decision of the court after a trial at the Nassau Special Term, confirming the report of sale by a referee of certain real property belonging to the estate of William J. K. Kenny, deceased, with notice of an intention to bring up for review the…

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

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office June 27, 1916, dismissing the complaint after a trial at Trial Term.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office January 24, 1917, upon the verdict of a jury, and also from an order entered January 30, 1917, denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office February 28, 1916, dismissing the complaint at the close of the plaintiff’s case after a trial at Trial Term.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the New York county clerk’s office January 14, 1915, upon a verdict, and also from an order entered February 11, 1915, denying a motion for a new trial.

<p>Pleading — bill of particulars.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office December 30, 1916, dismissing the complaint on the merits and awarding the custody of children to defendant.</p>

<p>Court — jurisdiction of County Courts—foreign corporation.</p>

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 5th day of March, 1917, convicting him of the crimes of rape in the second degree and abduction.

Appeal by the defendant from an order of the Supreme Court, made at the Clinton County Special Term, and entered in the clerk’s office of St. Lawrence county' on the 27th day of November, 1916, denying the defendant’s application for judgment upon its demurrer.

Appeal by the plaintiff, Peter Rosmark, from a judgment of the Supreme Court, entered in the office of the clerk of Erie county on October 5, 1914, in favor of the defendant, and against the plaintiff, for a nonsuit.

<p>Municipal corporation —■ constitutional law —■ optional form, of city government.</p>

Appeal by the defendant, Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court, entered in the office of the clerk of Onondaga county on December 29, 1916, in favor of the plaintiff and against said defendant for the sum of $610.57 damages and costs, and also from an order entered in said clerk’s office January 22, 1917, granting the plaintiff’s motion for a general verdict and denying the motions of said defendant to set aside the findings…

<p>Appeal from a judgment of the Supreme Court, entered in the Brie county clerk’s office February 26, 1917, and also from an order entered on the same day denying a motion for a new trial.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Oneida county clerk’s office November 28, 1916.</p>