Volume 180 — New York Appellate Division Reports

<p>Submission of a • controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, New York, Westchester and Boston Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16th day of April, 1917, upon the decision of the court after a trial at the Westchester Special Term.

<p>Appeal by the defendants, Ira Mendleson 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 Albany on the 31st day of March, 1917, upon the decision of the court after a trial at the Albany Special Term.</p>

Appeal by the defendants, Abraham Canno 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 Sullivan on the 2d day of November, 1916, upon the decision of the court after a trial at the Ulster Special Term, with notice of an intention to bring up for review an interlocutory decree, entered in said clerk’s office on the 12th day of June, 1916, and also an order entered in said clerk’s office on the…

<p>Appeal by the defendants, Estate of George Shepard and another, from an award of the State Industrial Commission made on the 5th day of March, 1917.</p>

<p>‘Will — probate — time of demand by contestants for trial by jury — waiver of such right.</p> <p>The right to a jury trial upon proceedings for the probate of a will should be demanded at the time of the filing of objections. Where contestants do not make such demand until an adjourned date, when they appear and ask permission to file amended objections, which are in precisely the language of the original objections, with an addition thereto of a demand for trial by jury, they will be deemed to have waived their right thereto.</p>

<p>Barge canal — appropriation of lands — Court of Claims — certificate of Attorney- General that no appeal will be taken by State condition precedent to authority of Comptroller to pay judgment for damages — necessity for approval by Attorney- General of abstract of title — jurisdiction of Court of Claims limited by statute — jurisdiction to determine title as between claimant and State.</p> <p>The provision of section 269 of the Code of Civil Procedure that no judgment against the State shall be paid until there is filed with the Comptroller a certificate of the Attorney-General that no appeal from such judgment has been or will be taken by the State, is mandatory, and is a condition precedent to the authority of the Comptroller to pay a judgment for damages for lands taken under the Barge Canal Act.</p> <p>Under section 8 of the Barge Canal Terminals Act (Laws of 1911, chap. 746), providing that “ The Attorney- General shall furnish to the Comptroller and State Treasurer all searches necessary to prove the title to the lands taken,” and under section 269 of the Code of Civil Procedure providing that the abstract of title and certificate of search as to incumbrances must be satisfactory showing the person demanding such damages to be legally entitled thereto, the failure of the Attorney- General to furnish such search cannot be interposed by the State Comptroller as a defense to the payment of an award for damages on account of the permanent appropriation of lands for Barge canal purposes; nor can the Comptroller arbitrarily claim that the abstract is not satisfactory or that it must be approved by the Attorney-General, where said abstract and certificate filed with the Comptroller, taken in connection with certified copies of the judgment of the Court of Claims, affirmed by the Appellate Division and the Court of Appeals show conclusively a good title in the claimants.</p> <p>The jurisdiction of the Court of Claims is limited to the powers expressly conferred by statute.</p> <p>The Court of Claims has jurisdiction to determine the title to lands appropriated for Barge canal purposes, as between the State and the claimants, and its judgment affirmed by the Appellate Division and the Court of Appeals is conclusive as between the State and the claimants as to the title, the amount of compensation and the persons legally entitled to receive the same.</p> <p>Kellogg, P. J., and Woodwabd, J., dissented.</p>

Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1917, directed to the Public Service Commission, Second District, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in directing the relator to cease doing business in certain localities.

Appeal by the defendants, John G. Hayes & Company and another, from a decision and award of the State Industrial Commission, bearing date the 18th of February, 1917.

Appeal by the plaintiff, The City of Troy, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 11th day of December, 1916, dismissing the complaint and awarding the defendant MacDonald judgment on his counterclaim upon the report of a referee.

<p>Appeal by the defendant, Southern Tier Publishing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 10th day of April, 1917, sustaining a demurrer to a separate defense contained in the appellant’s answer.</p>

<p>Workmen’s Compensation Law — when mother of deceased, with husband earning good wages, not dependent — evidence.</p> <p>The provisions of subdivision 4 of section 16 of the Workmen’s Compensation Law, as amended, are a command to the State Industrial Commission whenever it attempts to ascertain who are dependents of a deceased employee, to take into consideration the circumstances- at the time of the accident, and it affords the rule upon an appeal from an award and limits the Commission to a consideration of the circumstances prevailing at the time of the accident.</p> <p>Although the statute makes the findings of fact by the Commission conclusive where there is any evidence in support thereof, it is necessary to show, not that a son boarding with his wife at the home of his parents has given his mother sums of money which would fairly compensate for the entertainment received, but that the mother stood in a position where such sums of money were necessary to her own support.</p> <p>The statute clearly intends that the award to each person shall be for the support of such person and not for the maintenance of such a family as the claimant may elect to collect around her, and to whom she owes no legal obligation.</p> <p>Evidence examined, and held, insufficient to establish that the mother of ■ the deceased, aged forty-two years, with a husband in good physical condition, earning over twenty-one dollars per week when employed, was a dependent of the deceased within the meaning of the statute.</p>

<p>Workmen’s Compensation Law — contract of employment jurisdictional — evidence insufficient to establish employment.</p> <p>The existence of a contract of employment is essential to the operation of the Workmen’s Compensation Law, and due process of law requires that such fact be determined judicially under the rales applicable to contracts generally.</p> <p>Evidence examined, and held, insufficient to establish a contract of employment or the fact that a third party became the agent of the employer in the employment of the deceased.</p>

Appeal by the defendants, Des Lauriers Column Mould Company, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 6th day of April, 1917.

<p>Workmen’s Compensation Law — plumber employed in maintenance of ways department of railroad company engaged in interstate commerce.</p> <p>A plumber employed in the maintenance of ways department of the New York Central Railroad Company for a period of years, whose duties required him to be in and about the railroad properties generally, was engaged in interstate commerce when run over and killed while crossing the tracks in front of the station in which he had been working.</p> <p>Kellogg, P. J., and Lyon, J., dissented.</p>

<p>Appeal by the plaintiff, Adolf Doctor, 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 December, 1916, dismissing the complaint upon the decision of the court after a trial at the New York Special Term.</p> <p>An appeal is also taken as stated in the notice of appeal from the decision of the court.</p>

Appeal by the plaintiff, Charles Eno, 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 27th day of February, 1917, upon the verdict of a jury for $100, rendered after the court had dismissed the second cause of action for malicious prosecution set forth in the complaint, and further an appeal is taken from the order entered in said clerk’s office on the 28th day of February, 1917, denying plaintiff’s…

Appeal by the defendants, Roy C. Megargel and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of September, 1917, denying their motion to strike out certain allegations of the complaint as irrelevant and to make the complaint more definite and certain.

Appeal by the plaintiff, Manhattan Life 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 30th day of August, 1917, granting a motion made by the defendant Hammerstein Opera Company for the appointment of a receiver and appointing a receiver in a foreclosure action.

Appeal by the plaintiff, Emelea Pusey Warner, as executrix, 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 her motion to vacate an order for the examination of a witness who is not a party to the action, and refusing to set aside a subpoena duces tecum served on said witness.

Appeal by the defendants, Christina Pross 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 18th day of June, 1917, denying their motion to vacate an order for their examination before trial.

Appeal by the defendant, Hamburg-Amerikanische Packetfahrt Actien Gesellschaft, 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 26th day of June, 1916, upon the decision of the court awarding plaintiff $5,000, both sides having waived a jury trial.

Appeal by the defendant, Michael N. Kane, as executor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of April, 1917, upon the decision of the court after a trial at the Kangs County Special Term.

Appeal by the defendant, The New York Central Railroad Company, from a judgment of the County Court of Orange county, entered in the office of the clerk of said county on the 29th day of January, 1917, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 1st day of February, 1917, denying its motion for a new trial made upon the minutes.

Appeal by the defendant, The State of New York, from an order and determination of the Board of Claims, entered in the office of the clerk of said board on the 25th day of May, 1915, awarding a judgment to the claimant.

Appeal by the plaintiff, Hudson Valley Railway Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 12th day of January, 1917, upon a dismissal of the complaint by direction of the court after the verdict of the jury had been set aside.

<p>Workmen’s Compensation Law — carpenter repairing coal pockets not engaged in interstate commerce, although coal taken therefrom for locomotives engaged in such commerce.</p> <p>A carpenter in the general employ of a domestic railroad company who at the time he met his death was repairing coal pockets from which coal was used from time to time for locomotives engaged in interstate or intrastate commerce, was not engaged in repairing an instrumentality of interstate commerce, so as to render the Workmen’s Compensation Law inapplicable.</p> <p>Woodward and Cochrane, JJ., dissented.</p>

<p>Workmen’s Compensation Law — when common laborer running hand car upon spur track not engaged in interstate commerce.</p> <p>A common laborer of a railroad company, which was engaged in repairing a spur track for the private owner thereof, which was not a common carrier or engaged in interstate commerce, who while running a hand car upon said track fell and received injuries resulting in death, was not engaged in interstate commerce so as to render the Federal Employers’ Liability Act applicable, although the railroad company from time to time transferred cars and interstate freight over the spur track to the owner thereof.</p> <p>Woodward and Cochrane, JJ., dissented.</p>

Appeal by the defendant, The Commercial Casualty Insur- . anee Company, from an order or decision of the State Industrial Commission, made on the 12th day of July, 1917, denying an application to reopen and rehear the above matter.

Appeal by the defendants, Thomas E. McCormick and by the Superintendent of Insurance of the State of New York, as liquidator of the insurance carrier, from an award and decision of the State Industrial Commission dated on the 25th day of May, 1917.

<p>Appeal by the defendant, The New York Central Railroad Company, from a decision and award of the State Industrial Commission, rendered on the 19th day of June, 1917.</p>

Appeal by the City of New York from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 9th day of June, 1917, denying a motion to confirm the second separate report of Damage Commission No. 4, so far as it affects the claim of the respondents, and sending said claim before another commission.

Certiorari issued out of the Supreme Court and attested on the 17th day of May, 1916, directed to Martin Saxe and others, as State Tax Commissioners, 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 determining the value of certain property of the relator for the purposes of a mortgage tax.

<p>Appeal by the defendant, The City of New York, from an award of the State Industrial Commission, made on the 26th day of December, 1916.</p>

<p>Ships and shipping — United States Shipping Act forbidding rebates not retroactive — statutes — construction.</p> <p>The United States Shipping Act (1916, Sess. 1, 64th Congress, chap. 451) which became effective September 7, 1916, and which, among other things, forbids a common carrier by water to pay or allow a deferred rebate to any shipper, is not retroactive and, hence, a rebate agreement entered into prior to the enactment of said statute is enforcible not being contra bonos mores.</p> <p>An act should not be construed to be retroactive unless the language thereof renders such construction indispensable.</p> <p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, City of Oneida, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Madison on 12th day of May, 1917, denying its motion for a further bill of particulars.</p>

Appeal by the defendants, F. W. Woolworth Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on or about the 2d day of May, 1917.

<p>Elections — failure of board of supervisors to appoint election commissioner from persons selected by county committee under section 194 of Election Law — secretary of county committee not entitled to writ of mandamus to compel appointment.</p> <p>Where a Democratic county committee, acting under section 194 of the Election Law, has duly certified from time to time various persons to be appointed to the office of election commissioner, and each of said persons has in regular order been rejected by said board, the secretary of said committee is not a party legally interested in the appointment of any one of said persons as election commissioner, so as to entitle him to apply for a writ of mandamus to compel said board to appoint one of the persons selected.</p>

Appeal by the defendants, H. C. Faber & Son and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 18th day of May, 1917.

Appeal by the defendants, Alfred Pennington and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 11th day of April, 1917.

<p>Appeal by the defendant, Erie Railroad Company, from an award of the State Industrial Commission, entered in the office of said Commission on the 25th day of October, 1916.</p>

<p>Appeal by the defendant, Erie Railroad Company, from an award of the State Industrial Commission, entered in the office of said Commission on the 25th day of October, 1916.</p>

Appeal by the defendants, Frederick Stearns & Co. and another, from, an award of the State Industrial Commission, entered in the office of said Commission on the 7th day of March, 1916.

Appeal by the defendants, John F. Schmadeke, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 2d day of June, 1917.

Appeal by the defendants, Pierce-Arrow Motor Car Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 28th day of March, 1917.

Appeal by the defendant, Klauder-Weldon Dyeing Machine Company, from an order of the Supreme Court, made at the Montgomery Special Term, and entered in the office of the clerk of the county of Montgomery on the 2d day of June, 1917, directing the issuance of a peremptory writ of mandamus requiring the appellant to permit the relator to examine its books and papers upon the terms set forth in the writ.

<p>Appeal by the defendant, The State of New York, from an order and determination of the Court of Claims in favor of the claimant, entered in the office of the clerk of said court on the 7th day of October, 1916. '</p> <p>From the 1st of May until the 1st of December in each of the years 1893 and 1894 the claimant was a locktender on the Erie canal. The compensation of locktenders during those periods was fixed by the Superintendent of Public Works at forty-two dollars and fifty cents per month, by schedule filed by him with the Comptroller prior to the first day of May in each year. During every day of his employment the claimant was on duty for a continuous period of twelve hours, pursuant to rules and regulations established by the Superintendent of Public Works. On or about the first day of each month he was paid the sum of forty-two dollars and fifty cents, and he signed and receipted each month for each payment on a payroll furnished for that purpose by the Superintendent of .Public Works, and such payrolls so signed by him stated and showed on their face that his compensation was fixed at forty-two dollars and fifty cents a month, and that he acknowledged receipt of that amount by signing his name thereto. The claimant did not demand more than forty-two dollars and fifty cents per month for his compensation while he was acting as such locktender, nor did he demand or request that he be required not to work more than eight hours a day at any time. Nothing was said at any time about the number of hours each day he should work, or about his compensation. The prevailing rate of wages for laborers during the years 1893 and 1894 in the vicinity where the claimant was working was one dollar and fifty cents per day of eight hours.</p> <p>The claimant filed his claim April 25, 1895, demanding $297.50, being for four hours a day overwork for each day between May 1 and December 1, during the years 1893 and 1894 at the rate of one dollar and fifty cents for each eight hours. This claim was allowed by the Court of Claims, and from the judgment allowing the same the State appeals to this court.</p>

<p>Pleading — joinder of causes of action on contract and tort — when actions not inconsistent.</p> <p>Where a complaint affirms a sale of corporate stock by the defendant to the plaintiff and seeks to recover damages because of alleged fraudulent representations inducing [. the sale, and also affirms a written contract ' made at the time of the alleged fraud, to the effect that the defendant would buy back the stock if the plaintiff failed to receive permanent employment by the corporation, such causes of action are not inconsistent, so as to render the complaint demurrable.</p> <p>Even if the full satisfaction of one cause of action would prevent a recovery under the other, said fact does not establish that the actions are inconsistent. It merely affects the question of damages.</p>

<p>Appeal by the defendants, William J. Halpin and another, from an order of the Supreme Court, made at the Rensselaer Trial Term and entered in the office of the clerk of the county of Rensselaer on the 2d day of June, 1917, denying their motion for a dismissal of the complaint after the jury had disagreed as to a recovery by plaintiff against them.</p>

Appeal by the plaintiff, Helen Reade, from an order of the Supreme Court, made at the Schoharie Special Term and entered in the office of the clerk of the county of Rensselaer on the 13th day of July, 1917, denying her motion to strike out all the items of the bill of costs of the defendant Freeman H. Munson, and to vacate the taxation and retaxation of said costs and to modify the judgment accordingly.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, All Americas Mercantile 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 20th day of August, 1917, directing defendant’s receiver to hold certain leather in his possession subject to the lien of The National Park Bank, the petitioner herein.

Appeal, by the plaintiff, Abraham Frankenberg, 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 30th day of April, 1917, denying his motion for judgment on the pleadings consisting of a complaint, an amended answer and the reply thereto.

Appeal by the defendant, Osroe A. Clark, as administrator, 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 30th day of March, 1917, upon the decision of the court after a trial at the New York Special Term.

<p>Will — trust — survivorship clause of will construed — gift to children surviving termination of trust — vesting of remainder in fee — gift to children as a class.</p> <p>A testator leaving him surviving a widow and eight children, left his property, both real and personal, to his executors in trust, which trust was to be executed during the continuance of the natural lives of his youngest daughter and youngest son or the survivor of them. At the decease of the said son and daughter or the survivor of them, he directed “ that the trust hereby created and every part thereof shall wholly cease, and that all which remains of my said estate * * * shall vest with absolute power of alienation in and descend to and be distributed among my above mentioned children being the devisees and legatees above named, and their children and grandchildren, heirs, executors, administrators and assigns in the same proportion or shares as above specified, and to which they are respectively entitled to the income or proceeds or avails above mentioned.” He further provided that “ in the case of the death of either a son or daughter of mine leaving a child or children, such child or children shall be entitled to the share or shares of his, her or their parent under this will, whether such share be of realty or principal, or income, proceeds or avails, such children to divide equally their parent’s portion.” The testator was survived by all of. his eight children and the trust terminated upon the death of his youngest daughter. Prior to this time all of his other children had died leaving issue them surviving.</p> <p>Held, that so far as the principal of the estate is. concerned, it was the testator’s intention to give it to such of his children as should survive the termination of the trust, the then surviving children of such children to take by representation in the event of the death of their parent before the time for distribution.</p> <p>Where a devise of the fee of property is made to take effect in the future, upon the termination of intervening life estates, with a substitutional gift to others in the event of death, thei death referred to will be held to be death at any time prior to the termination of the life estates.</p> <p>Applying this rule to the will in question, the sons and daughters of the testator, as they died prior to the termination of the trust, did not become seized of a remainder in fee.</p> <p>The substitutional gift in the event of the death of the sons or daughters of the testator prior to the time of vesting, was to Ms or their “ children ”, as a class, and hence in order to take the fee it was necessary for such cMld of a son or daughter of the testator to be and remain a member of that class at the time of the termination of the trust.</p> <p>Hence, any of the testator’s children or grandchildren who died prior to the termination of the trust had no estate in the fee of Ms property wMeh could be devised, and their devisees took notMng by virtue of their respective wills.</p> <p>The judgment eonstrmng the will should be modified so as to provide that the income of the proceeds of the sale of the real property as it accrued was payable to the issue of the testator’s descendants who remained in the class during the trust term, and the principal thereof upon termination of the trust term be divided among such of Ms descendants as were then surviving, in the same proportions as they would have shared in the income then accruing.</p>

Appeal by the defendant, Casualty Company of America, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on or about the 23d day of June, 1917, denying its motion to require the respondents to accept a notice of appeal to the Court of Appeals.

<p>Trust — duty and liability of trustee in managing speculative securities.</p> <p>Where the value of mortgaged property consisting of an inn was uncertain and its substantial value depended upon its continued operation at the time a trustee was directed by the court to take over a mortgage upon the same from his predecessor, it is unfair to the trustee to order him to pay the nominal value of said mortgage with interest, it appearing that he has exercised good faith and reasonable care in the management thereof.</p> <p>A trustee receiving securities of uncertain value is only required to account for them as such, and to show that he acted in good faith in dealing with them after they came into his possession and used his best judgment and discretion. He does not guarantee that such securities will realize cash or that he will handle them in the most advantageous manner.</p>

Appeals by the plaintiff in each case, Manhattan Railway Company and Interborough Rapid Transit Company, respectively, 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 1st day of March, 1916, granting defendants’ motions to continue these proceedings and setting them down for trial.

<p>Appeal by the contestant, George C. Williams, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 11th day of November, 1916, admitting to probate the will herein, and also from an order of said Surrogate’s Court, entered in the office thereof on the 4th day of December, 1916, denying the contestant’s motion to set aside the verdict of the jury in this proceeding and for a new trial.</p> <p>The trial was before a jury on issues framed on the motion of contestant. The surrogate directed the jury to find for the proponent on the issues of testamentary capacity and undue influence, and submitted to the jury the question of the due execution of the will. Upon this issue the jury found for proponent. The decree was entered on the verdict of the jury, as directed and found, and from it the contestant appealed. The facts are stated in the opinion.</p>

Appeal by the defendants, Storm King Stone Company and another, from a judgment or order of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 27th day of March, 1917, upon the decision of the court after a trial before the court without a jury at the Rockland Special Term.

Appeal by William P. Shannon, contestant, from an order of the Surrogate’s Court of the county of Suffolk, entered in the office of said Surrogate’s Court on the 22d day of January, 1917, denying his motion for the issuance of commissions and the postponement of the trial herein, and also from an order entered in the office of said court on the 5th day of March, 1917, resettling the prior order, and also from said prior order as resettled by an order entered on the 26th day…

Appeal by the defendant, The Brooklyn Heights 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 Kings on the 17th day of October, 1916, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 31st day of October, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Louis D’Esterre and others, from a judgment of the Supreme Court in favor of the Respondents, entered in the office of the clerk of the county of Kings on the 7th day of December, 1916, upon the decision of the court after a trial at the Kings County Special Term. The judgment dismissed defenses set up in the answers of Louis D’Esterre and wife and William D’Esterre and wife and adjudged the validity of certain bonds of the face value of $75,000.

Appeal by the defendant, Village of North Tarrytown, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 11th day of June, 1917, upon the verdict of a jury for $550, and also from an order entered in said clerk’s office on the 7th day of July, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William F. McCombs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of January, 1917, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 19th day of January, 1917, denying appellant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Town of Saugerties and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 24th day of April, 1917.

Appeal by the defendants, Shults Bread Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 23d day of March, 1917, awarding compensation for permanent total disability.

<p>Workmen’s Compensation Law — review by Appellate Division of findings of Commission — credibility of witnesses — establishment of relation of employer and employee.</p> <p>Under section 20 of the Workmen’s Compensation Law, the Appellate Division cannot review the determination of the State Industrial Commission on a finding of fact, if there is evidence to sustain it, although the court believes the testimony to be untrue. The credibility of the witnesses is a question of fact and rests with the Commission.</p> <p>Finding of the Commission that the claimant was an “ employee ” affirmed, although the evidence, in the judgment of the court, supporting said finding is not convincing.</p> <p>Woodward and Sewell, JJ., dissented, with opinion.</p>

Appeal by the defendants, S. November and another, from awards and orders of the State Industrial Commission, entered in the New York city office of said Commission on the 28th day of May, 1915, and on the 2d day of August, 1915, respectively.

Appeal by The City of New York from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 16th day of September, 1915, affirming the third separate report and award of Business Damage Commission No. 3, in so far as it affects the claimant. An appeal is also taken from the said third separate report and award of Business Damage Commission No. 3.

Appeal by the plaintiff, William F. Feeck, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 20th day of March, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, Michael Nugent, from a judgment of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 24th day of March, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order entered in said clerk’s office on the 26th day of March, 1917, granting the defendant’s motion for a nonsuit.

Appeal by the plaintiff, Humbert B. Powell, as executor and trustee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 29th day of March, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of March, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Broad Channel Corporation, 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 26th day of April, 1917, denying its motion for a dismissal of the complaint.

Appeal by the plaintiff, Vega Co-operative Creamery Association, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 8th day of May, 1917, appointing a referee to hear and determine the issues herein. The question presented on this appeal is whether it affirmatively appears that an examination of a long account will be necessary upon the trial.

Appeal by John B. Judson and another from an order of the Surrogate’s Court of Fulton county, entered in the office of said Surrogate’, s Court on the 30th day of June, 1917, granting leave to issue execution against the property of the appellants personally.

<p>Sale — when transfer of undivided interest in boat does not convey vendor’s interest in prior earnings.</p> <p>A sale purporting to transfer the vendor’s undivided thirty-four one-hundredths interest in a boat, together with the tackle, furniture and necessaries thereunto appertaining and belonging, does not transfer the vendor’s interest in prior earnings or in any other property held in common or for partnership purposes, and, hence, it does not bar the vendor’s right of action against a tenant in common for an accounting.</p>

Appeal by the defendant, Melvin S. Allen, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 10th day of May, 1917, permitting plaintiff to take possession of the premises sought to be condemned.

<p>Appeal by the defendant, Elva Allen Matthews, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 10th day of May, 1917, permitting plaintiff to take possession of the premises sought to be condemned,</p>

Appeal by the defendant, Heman E. Baker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 1st day of February, 1917, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, Frank Loveland, individually and as administrator, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 29th day of December, 1916, upon the decision of the court after a trial before the court without a jury, and also, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered. The judgment awarded plaintiff $217.96 damages and costs.

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

<p>Attorney at law disbarred — conversion of client’s money.</p> <p>Attorney at law disbarred for converting Ms client’s money to Ms own use, with full knowledge on Ms part of the violation of Ms professional obligations.</p>

Appeal by the plaintiff, W. H. McElwain Company, from a judgment 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 4th day of April, 1917, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District.

<p>Appeal by the defendants, Ward Baking Company and another, from an award of the State Industrial Commission, dated on the 6th day of June, 1917.</p>

Appeal by the defendant, Woman’s Hospital in the State 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 8th day of March, 1917, upon the verdict of a jury for $2,500, 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 representatives of Joseph F. Daly from a decree of the- Surrogate’s Court of the county of New York settling the accounts of the executors of Augustin Daly, deceased.

<p>Contract — license to produce theatrical representation — contract construed — when licensee not entitled to deduct previous losses ' from royalties due.</p> <p>A contract between the plaintiff, a theatrical syndicate, and the defendant gave to the latter the exclusive right of producing a certain play in the United States and Canada for the period of three years, the defendant to pay to the plaintiff thirty-three and one-third per cent of the net profits accruing from every company performing the play, the profits to be arrived at after deducting the running expenses of the play, etc. It was provided that a theatrical season should run from September of one year until May in the following year and that the plaintiff licensor should not be responsible for any losses incurred in the production of the play and nothing in the agreement should be construed to constitute a partnership between the parties. The first season the play was produced by the defendant and resulted in a loss, but the following season produced a net profit. Contract construed, and held, that there was to be a settlement between the parties at the end of each theatrical season and that the defendant had no right to deduct from the plaintiff’s share of the net profits of the second season one-third of the loss sustained in the preceding one, as under the contract no part of the loss was to be charged to the plaintiff.</p>

Appeal by the defendant, Kansas City, Mexico and Orient Railway of Texas, a foreign 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 July, 1917, denying its motion to vacate and set aside the service of the summons.

Appeal by the defendant, Anna Radda, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of New York on the 12th day of March, 1917, granting plaintiff a divorce upon the decision of the court after a trial at the New York Special Term, the issue of adultery having been first tried before a jury, and a verdict rendered in plaintiff’s favor.

Appeal by the People of the State 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 15th day of September, 1917, sustaining a writ of habeas corpus and discharging the relator from the custody of the warden of the penitentiary and remanding him to the city prison, to be resentenced by the Court of General Sessions to a State prison.

Appeal by the plaintiff, William F. Stone, 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 requiring him to serve an amended complaint stating and numbering separately two causes of action claimed by the respondent to be set forth in the original complaint.

Appeal by the plaintiffs, Sidney Norman and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of July, 1914, dismissing the complaint upon the merits on the decision of the court after a trial at the New York Special Term.

Appeals by the relator in each case, Sean Conway and others, from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of September, 1917, dismissing writs of habeas corpus and remanding the relators to custody.

<p>Appeal by the defendant, New York State National Bank of Albany, 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, sustaining a demurrer to the second separate defense contained in the amended answer.</p>

Appeal by the plaintiff, Adams-Flanigan Company, for itself and on behalf of other creditors, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Bronx on the 19th day of February, 1917, dismissing the complaint on the merits as to the respondent upon the decision of the court after a trial at the Bronx Special Term.

<p>Appeal by the defendants, Gretchen Preisler 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 10th day of February, 1917, as amended.</p> <p>The judgment was entered upon the verdict of a jury rendered by direction of the court. Defendants further appeal from an order entered in said clerk’s office on the 13th day of Feoruary, 1917, denying their motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Paolo Castiglione, 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, affirming a judgment of the City Court of the City of New York and an order of said court denying plaintiff’s motion for a new trial. Plaintiff further appeals from the judgment and order of the City Court.

Appeal by the defendants, Noah H. Swayne and others, from a judgment of the Supreme Court in'favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of May, 1917, upon the decision of the court after a trial at the New York Special Term. The judgment restrained the defendant Shaw from conducting or continuing a school for girls upon the defendants Swaynes’ premises.

Appeal by the plaintiff, Hans Karpeles, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of January, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of January, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Louis Robison and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of November, 1916, denying defendants’ motion for a new trial made upon the minutes, and also from a second order entered in said clerk’s office on the same day granting…

Appeal by the defendant, Eagle Savings and Loan Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1917, upon the decision of the court after a trial at the New York Special Term.

<p>Will — action to establish lost will — evidence insufficient to establish will or its destruction •— when judgment for defendant should not be upon merits — evidence — personal transaction with decedent — legatee of legatee under alleged lost will incompetent as witness — proof necessary to establish lost will — practice — motion for new trial upon minutes in case tried at Special Term.</p> <p>Action to establish an alleged lost or destroyed will. Evidence examined, and held, insufficient to establish due execution of the alleged will, or its contents, or the fact that it had ever been executed or was in existence at the death of the testatrix, or had been destroyed either before or after her death.</p> <p>But, although the plaintiff’s, failure of proof justified a dismissal of the complaint, it was error for the court to award judgment to the defendant on the merits where the evidence did not justify an affirmative finding that no will was executed by the testatrix, or that a paper alleged to be her will was not in existence when she died, or that it had not been fraudulently destroyed during her lifetime, or that the will, if executed, was destroyed by the testatrix animo revocandi.</p> <p>Qucere, as to whether an administratrix with the will annexed of a person alleged to be a legatee under a lost or "wrongfully destroyed will has such a pecuniary interest in the result of an action to establish the will as to render her incompetent to testify to a personal transaction, with the testatrix.</p> <p>However, a beneficiary and residuary legatee named in the will of a legatee whom it is claimed was entitled to take under the lost or destroyed will is not entitled to testify to a personal transaction with the alleged testatrix. Hence, where such witness is one of the only two witnesses by whom the existence of the lost will can be established it is impossible to prove the contents of the alleged will, for section 1865 of the Code of Civil Procedure requires the will to be proved by at least two credible witnesses where there is no copy of the will in existence.</p> <p>There is no authority for a motion for a new trial upon the minutes in a case which has been tried before a justice without a jury at Special Term.</p>

Appeal by the petitioning creditor, Edward F. Cole, from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 17th day of March, 1917, judicially settling the account of the administrator herein and denying the appellant’s petition for the sale of the real estate owned by the intestate at the time of his death for the payment of his debts.

Appeals by the defendants, Edward N. Breitung and others, 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 10th day of September, 1917, as resettled by a second order entered in said clerk’s office on the 17th day of September, 1917, and also from part of an order of said court as resettled entered in said clerk’s office on the same day.

<p>Appeal by the plaintiffs, Robert Holmes, individually and as trustee, and others from two orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1917, the one denying plaintiffs’ motion for judgment on the pleadings herein as against the respondents and the other granting respondents’ cross motion for the same relief and sustaining their demurrer to the complaint.</p>

<p>Appeal by the defendant,. Edward S. Van Zile, 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 August, 1917, denying his motion for judgment on the pleadings consisting of a complaint and the second amended answer thereto.</p>

Appeal by the defendant, Union Railway Company of New York City, 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 5th day of January, 1917, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 6th day of February, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel A. Harkavy, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of April, 1917, affirming a judgment of the City Court of the City of New York in defendant’s favor, which dismissed the complaint.

Appeal by the defendant, Rodgers & Hagerty, 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 10th day of March, 1917, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Wells & Newton Company, from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 27th day of April, 1917, upon the decision of the court after a trial at the New York Special Term, as awards' defendant Brassil affirmative relief on his counterclaim.

<p>Foods — power of Commissioner of Foods and Markets to issue subpoena— limitation upon said power — dispute arising over sale of milk in foreign State.</p> <p>Sections 30, 31, 50 et seq. of the Farms and Markets Law which, among other things, empower the Commissioner of Foods and Markets to take the testimony of witnesses and for the exercise of his power to issue subpoenas, do not authorize said Commissioner to issue a subpoena in a matter entirely outside the scppe of his duties.</p> <p>Thus, where dairymen located in a foreign State, who are under contract to deliver milk to a domestic corporation in this State to be tested by said corporation and paid for on the basis of the percentage of butter fat contained, complained to said Commissioner that the corporation had failed to make proper tests and had not paid for milk on an equitable basis, the Commissioner has no authority to subpoena an officer of the corporation to appear and give testimony and produce books and papers showing the purchase and sale of milk in the foreign State in an attempt to do justice to both parties.</p> <p>Doing justice between parties to a contract for the sale of milk in the State of Pennsylvania is not within any of the powers and duties vested in and imposed upon the Commissioner by the statute. Courts of law have been established for that purpose.</p>

Appeal by the New York, New Haven and Hartford Railroad 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 Bronx on the 18th day of September, 1916, confirming the supplemental and amended report of the commissioner of assessments herein.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, The City of New York, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 3d day of November, 1915, affirming a judgment of the Municipal Court, City of New York, Borough of Manhattan, Fifth District, which dismissed the complaint. An appeal is also taken from the judgment of the Municipal Court entered in the office of the clerk thereof.

Appeal by the plaintiffs, Frank Wolff and another, as executors, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of March, 1917, affirming a judgment of the Municipal Court, City of New York, Borough of Manhattan, Fifth District.

Appeal by the plaintiff, Porino V. Malerba, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of February, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Harry A. Fox, from an interlocutory judgment of the County Court of Oneida county, entered in the office of the clerk of said county on the 27th day of April, 1917, sustaining a demurrer to an affirmative defense in the answer and also from an order entered in said clerk’s office on the 16th day of April, 1917, pursuant to which said judgment was entered.

Appeal by the plaintiff, John F. Meiers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 14th day of April, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 12th day of February, 1917, granting defendant’s motion for a nonsuit and directing a verdict in its favor.

Appeal by the plaintiff, City of Corning, and by the Erie Railroad Company and Public Service Commission, Second District, 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 Steuben on the 3d day of October, 1916, sustaining exceptions to the report of the commissioners herein, setting aside said report and referring back the same to the commissioners.

Appeal by the plaintiff, City of Corning, and by the Erie Railroad Company and Public Service Commission, Second District, 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 Steuben on the 3d day of October, 1916, sustaining exceptions to the report of the commissioners herein, setting aside said report and referring back the same to the commissioners.

<p>Appeal by the defendant, International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of March, 1917, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Herbert S. Sisson, as State Commissioner of Excise, and another, from an order of the county judge of Kings county, entered in the office of the clerk of said county on the 22d day of October, 1917 (after the return to a writ of certiorari sued out under Liquor Tax Law, section 27, subdivision 1), directing the issuance to relator of a liquor tax certificate for the excise year commencing October 1, 1917, and ending September 30, 1918, for premises…

<p>Insurance — fire insurance — liability for explosion incident to fire damaging canal boat —• proximate cause — construction of insurance policy governed by intent of parties.</p> <p>A fire insurance policy, insuring a canal boat against the adventures and perils of the sounds, harbors, bays, rivers, canals and fires, and applicable to navigation on inland waterways and harbors of the city of New York, which contains no exemption of liability for damages caused by explosion, covers damage to a canal boat, where a fire broke out in a railroad yard causing an explosion in another yard, which resulted in another explosion causing a concussion of the air, which damaged the boat lying about 1,000 feet distant.</p> <p>The fire, under the circumstances, was the proximate or efficient cause of the loss.</p> <p>In an insurance contract, as in all others, the test is the intent of the parties, as disclosed by the terms of the policy. ^ j</p>

<p>Appeal by the defendant, World Film Corporation, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1917, directing an accounting and a return to the plaintiff of twenty-six films of a motion picture known as “ The Head Hunters,” upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the defendant, Matthew W. Wood, 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 19th day of June, 1917, upon the decision of the court after a trial at the Kings County Special Term in a suit for specific performance of a contract. On November 2,1915, the automobile of Gustav W. Neuman, one of the plaintiffs, collided with Wood’s motor car.

Appeal by Louis Rudolph and another from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 13th day of December, 1916, admitting to probate a paper purporting to be the last will and testament of Henry Rudolph, Jr., deceased, and denying an application for letters of administration upon his estate.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the defendant, The Peoples Trust Company, from a judgment of the Court of Special Sessions of the City of New York, Part Two, rendered against it on the 26th day of January, 1917, convicting it of violating section 280 of the Penal Law.

<p>Municipal corporations — damages to lands from operation of pumping station — review of award — when evidence as to damages not a guess — damages for year pending suit incidental to relief by injunction — landlord and tenant — right of tenant at will to damages.</p> <p>The rule that the awards of commissioners of land damages are not to be disturbed unless they include unlawful or exclude lawful elements of damage or unless obviously perverted by illegal evidence, should also be applied in the review of the determination of unliquidated damages by a trial judge in a suit to restrain the operation of pumping stations by the defendant, which was claimed to deprive land partly owned by plaintiff and partly by his wife and cultivated by him, of water necessary to its fertility, and incidentally to recover damages for past operation.</p> <p>Evidence of the plaintiff as to the yield of the land before defendant started pumping the water was not a guess, although he was led by defendant’s counsel to so characterize it, where it was founded upon recollections of past facts within his knowledge.</p> <p>The rule that in an action at law damages for the year pending the action should not be allowed where it was not included in the claim filed with the comptroller, does not apply to a' suit in equity, where the award of damages is merely incidental to the relief of injunction. The general rule is that in equity such incidental damages may be awarded to the date of the trial.</p> <p>Where leased lands have been damaged the party suffering the loss is entitled to bring an action.</p> <p>Damages for the land held by the plaintiff as tenant at will of his wife, through the operation of the pumping stations, cannot be awarded in this action.</p> <p>Mills and Blackmab, JJ., dissented in part.</p>

Appeal by the defendant, Frederick J. Tompkins, 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 July, 1917, as resettled by an order entered on the 11th day of October, 1917, setting aside the verdict of a jury and granting plaintiff’s motion for a new trial on the ground of newly-discovered evidence.

Appeal by the plaintiff, Dorothy A. Mason, 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 June, 1917, granting respondent’s motion for a new trial on the ground of newly-discovered evidence and vacating a judgment heretofore entered in plaintiff’s favor.

<p>Appeal by the plaintiff, Terence McKegney, 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 November, 1916, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

Appeal by the plaintiff, Bradstreets Collection Bureau, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 26th day of May, 1916, modifying and affirming as modified an order of the Municipal Court of the City of New York, Borough of Manhattan, First District, vacating and setting aside a judgment herein.

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 8th day of January, 1917, upon the verdict of a jury rendered by direction of the court.

<p>Master and servant — negligence — when chauffeur of garage company becomes employee of hirer of automobile with chauffeur, so that hirer is liable for negligence of chauffeur.</p> <p>Where, in an action to recover damages for the death of plaintiff’s intestate, a boy eight years of age, who was struck and killed through the negligence of the chauffeur of an automobile in which the defendant was riding, it appeared that a garage company had, under a written agreement, rented and turned over to the defendant for a period of three months an automobile and the services of a chauffeur, and had exercised no control either over the automobile or the chauffeur during the period of the agreement, and had instructed the chauffeur to take his orders from the defendant, and the defendant not only gave the chauffeur all of his orders but actually interfered with the operation of the automobile by substituting his judgment for that of the chauffeur -as to the route to be taken on the occasion of the accident, said chauffeur, although in the general employment of the garage company, had become pro hac vice the servant of the defendant, so as to render him liable for the negligence. Scott, J., and Clarke, P. J., dissented, with opinion.</p>

Appeal by the plaintiff, George A. Strong, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of June, 1917, overruling plaintiff’s demurrer to a separate defense contained in the answer made on the ground of insufficiency. The plaintiff was one of several counsel retained by defendant in a certain litigation.

Cross-appeals by the plaintiff, Morgan Munitions Supply Company, Inc., and by the defendant, The Studebaker Corporation of America, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of June, 1917. Plaintiff appeals from so much of said order as overrules its demurrer to the first defense in the supplemental answer.

<p>Landlord and tenant — covenant of tenant to make repairs except specified structural changes — when cost of changes ordered by Labor Department falls on tenant.</p> <p>Where a lease in express terms required the lessee to comply with all the requirements of the municipal and public authorities and to execute all orders of the fire underwriters in respect to the demised premises and to make all repairs to the building at his own cost and expense, except the remedying of structural defects such as replacing the main walls, foundations, or the roof, the cost of complying with an order of the State Labor Department requiring additional exits, screening of closets, the placing of gates on elevator openings and the inclosing of all interior stairways serving as exits, landings, platforms and passageways connected therewith, with fireproof materials, etc., falls upon the tenant, and not upon the landlord.</p> <p>It seems, that in the absence of such express stipulations in the lease the inclosing of stairways would be a structural change chargeable to the landlord.</p>

Appeal by the plaintiff, John C. Botts, 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 to compel the defendant (a) to state its defenses and counterclaims separately; (b) to state its defenses separately; (c) to state its counterclaims separately, or (d) to strike out as irrelevant and immaterial certain allegations relative to the law of Tennessee.

<p>Appeal by the plaintiff, Mitchel H. Mark Realty 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 12th day of November, 1917, denying its motion for an injunction pendente lite.</p>

Appeal by the defendant, Mauro Simone, from a judgment of the County Court of Kings county, rendered against him on the 24th day of January, 1917, convicting him of the crime of rape in the first degree, and also from an order of said court denying defendant’s motion to set aside the verdict and for a new trial and in arrest of judgment.

Appeal by the defendant, The City of New Rochelle, 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 25th day of January, 1917, upon the verdict of a jury for $750, and also from an order entered in said clerk’s office on the 27th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, John S. Donohue, 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 13th day of January, 1917, upon the decision of the court after a trial at the Westchester Special Term, granting a separation to the plaintiff, and giving her custody of the child of the parties.</p>

Appeal by the defendant, Interborough Rapid Transit Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1917, setting aside the verdict of a jury in plaintiff’s favor for $250, and granting a new trial.

Appeal by the plaintiffs, Lucille S. Fabre and another, as . executors, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 28th day of June, 1916, dismissing the complaint on the merits upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the plaintiff, Walter J. Wáyte, 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 10th day of April, 1917, denying his motion for judgment on the pleadings consisting of a complaint and demurrers thereto, and also from an order entered in said clerk’s office on the same day, resettling a prior order entered therein on the 29th day of March, 1917, sustaining the demurrers to…

Appeal by the defendant, New York Central Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of February, 1917, upon the verdict of a jury for $10,666.67, 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, and also from said order as resettled by an order entered on…

Appeal by the defendants, Bertrem W. Lougheed 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 4th day of September, 1917, and also from an order made upon reargument entered in said clerk’s office on the 7th day of September, 1917, confirming the prior order and continuing the injunction and receivership therein provided for.

Appeal in each case by the defendant, Hudson and Manhattan Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff in each case, which judgments were entered in the office of the clerk of the county of New York on the 4th day of December, 1916, upon the verdicts of a jury, in the first case for $500 and in the second case for $250, and also defendant appeals in each case from the order, entered in said clerk’s office on the 14th day of December,…

<p>Appeal by the plaintiff, Henry E. Fox Construction Co., Inc., from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of April, 1917, affirming a judgment of the Municipal Court, City of New York, Borough of Manhattan, Fifth District, and also from the judgment of the Municipal Court so affirmed.</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 1st day of June, 1917, denying its motion for judgment on the pleadings consisting of a complaint and answer.

Appeal by the plaintiffs, Roland Jones Shankland Marsh 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 27th day of July, 1917, granting a motion by the respondent trustees for judgment on the pleadings, and dismissing the complaint, unless the plaintiffs amend by bringing in omitted parties claimed to be necessary to the action.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, dated December 27, 1916, reversing a prior order fixing the tax herein and remitting the report to the appraiser; also an appeal is taken from the order of exemption on the supplemental report made and entered in the office of said Surrogate’s Court on the 4th day of April, 1917, and also from the order denying the appeal of the Comptroller of the State of New…

Appeal in each case by the defendant, Sheffield FarmsSlawson-Decker Company, from a judgment of the Municipal Term of the Court of Special Sessions of the City of New York, Part I, rendered against it on the 5th day of April, 1917, convicting it of a misdemeanor consisting of a violation of the Labor Law, section 162, which provides that no child under the age of fourteen years shall be employed or permitted to work in or in connection with any mercantile or other business…

<p>Appeal by the defendants, Edward R. Thomas arid another, 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 23d day of June, 1916, upon the report of a referee appointed to hear and determine the issues.</p> <p>' The defendant Thomas further appeals from an order entered in said clerk’s office on the 5th day of June, 1916, denying his motion to strike the referee’s report from the files and to declare the reference terminated and for the removal of the referee upon the ground of misconduct and for the appointment of another referee, and also from an order denying his motion for a review of the taxation of costs herein.</p> <p>The defendant Hamilton appeals not only from the judgment, but also from the order of reference herein entered in said clerk’s office on the 18th day of March, 1915.</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 9th day of July, 1914, confirming the report of a referee.

Appeal by the defendant, Casualty Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of March, 1917, 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 defendant, Title Guarantee and Trust Company, from a judgment of the Court of Special Sessions of the City of New York, Part Two, entered on the 27th day of November, 1916, convicting it of a misdemeanor in violating section 280 of the Penal Law, with notice of an intention to bring up for review an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of October, 1916,…

Appeal by the defendant, Lewis Jewell, from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of said county on the 14th day of February, 1917, affirming a judgment of a Justice’s Court of the town of Smithtown for sixteen dollars and ninety cents, a penalty for violation of, a local ordinance of said town prohibiting non-residents from taking fish from the waters of St. James or Stony Brook harbor.

Appeal by the defendants, South Brooklyn Railway Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of June, 1916, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant, William O’Keefe, from an order of the Court of Special Sessions of the City of New York, borough of Brooklyn, Second Division, entered in the office of the clerk of said court on the 6th day of July, 1916, and also from an order of said court entered therein on the 17th day of August, 1916, denying defendant’s motion for a new trial on the ground of newly-discovered evidence.

Appeal by Mary Averill and others, contestants, from a decree of the Surrogate’s Court of the county of Suffolk, entered in the office of the clerk of said Surrogate’s Court on the 23d day of April, 1917, and also from an order entered on the 16th day of April, 1917.

<p>Railroads —■ liability of railroad for defective condition of highway caused by snow fence erected upon its premises — remedy of users of highway for defective condition thereof.</p> <p>A railroad company may lawfully erect a fence or any other structure wholly upon its own property, designed to prevent snow from blowing across the highway into a railroad cut, although the effect is to produce snow drifts in the highway, where none of the snow which drifts into the highway comes from the right of way of the railroad.</p> <p>Hence, although the effect of such a fence is to cause the snow to drift and to a considerable extent obstruct the highway, contributing to the development of pitch holes between the drifts, the railroad company is not liable in damages for injuries sustained by users of the highway, because of the pitch holes.</p> <p>It seems, that the liability to such users, if any, is by the town for failure of its town superintendent to keep the highway safe for public travel.</p>

<p>Practice — action to establish trust in securities alleged to have been transferred to defendant — when prior decree of surrogate not res ad judicata — motion for judgment upon pleadings under Code of Civil Procedure, section 647 — severance of action.</p> <p>Where, in a suit to have it adjudged that certain securities were transferred and delivered to the defendant in trust to apply the income to the support of certain persons including the plaintiffs, the defendant alleges that the transfer was an executed gift, and further, by supplemental answer, that in a proceeding in the Surrogate’s Court for the judicial settlement of her accounts as executrix of one of the alleged donors, in which the plaintiffs were parties, it was adjudged that said securities were gifts to her by the testator and his wife, and the plaintiff served a reply to said supplemental answer in substance admitting the decision of the Surrogate’s Court, but alleging that the surrogate had no jurisdiction to determine the question, as respects the securities transferred by the testator, and that the executrix of the wife of the testator was not a party to the proceeding in the Surrogate’s Court, and thereafter the defendant moved for judgment on the pleadings under section 547 of the Code of Civil Procedure, it was proper for the Special Term to hold that the decree of the surrogate was not res adjudicata as to the property transferred by the wife of the testator, and it should then have denied the motion for judgment upon the pleadings instead of granting it in part and undertaking to sever the action.</p> <p>A defendant is not entitled to judgment under section 547 of the Code of Civil Procedure if the complaint entitles the plaintiff to any relief, legal or equitable.</p> <p>The Special Term was without authority to direct a severance of the action as this was not a case provided for by the Code of Civil Procedure.</p>

Appeal by the defendant, Fanny Baff, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 16th day of January, 1917, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Sixth District, and also from the judgment of the Municipal Court entered in the office of the clerk thereof, on the 26th day of May, 1916.

<p>Contract — agreement to write a play — suit by husband of one party against coadventurer for accounting — time of performance — waiver — injunction — right to have name advertised as coauthor.</p> <p>In a suit by the administratrix of the author of plays against a producer and a coadventurer with the deceased, it appeared that the plaintiff’s husband had entered into a contract with the defendant produce- to write and. deliver a play; that his name as author was to be advertised therein, and that any change in the play was to be mutually agreed upon; that thereafter with the consent of the producer the plaintiff’s husband and the defendant coadventurer entered into an agreement by which the latter became associated in originating and writing the play, and by which the plaintiff’s husband agreed to divide his profits equally; that prior to the making of this agreement the plot of the play had been agreed upon, and thereafter the parties worked together, but before it was entirely completed the plaintiff’s husband died, and that thereafter the coadventurer or some other person completed the play which was produced by the defendant under a different name; that the coadventurer in violation of bis duty to the plaintiff and her husband has appropriated the play and claims sole authorship and ownership thereof, and that the defendant producer has co-operated in producing the play in disregard of plaintiff’s rights, and that a large amount of money has been realized in which the plaintiff is entitled to her proportionate interest.</p> <p>Held, that these facts entitled the plaintiff to an accounting as against her husband’s coadventurer; that the fact that by the agreement between her husband and the coadventurer their interest in the royalties is several does not deprive the plaintiff of a right to an accounting, for it may be inferred that said coadventurer has received not only his own share of the royalties, but the share to which the plaintiff was entitled as well.</p> <p>As the play was taken under the contract, the time specified for delivery was thereby waived.</p> <p>The plaintiff is entitled to have the name of her husband advertised as the coauthor of the play, and to have the further production thereof enjoined if this be not done.</p> <p>In view of her interest as a co-owner in the play and her reserved rights therein, and of the fact that her husband left other literary productions, it cannot be said that her right is a mere naked legal one.</p> <p>The producer of the play was properly joined as a defendant.</p>

<p>Appeal by the defendant, Albert Smith & Son, 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 5th day of March, 1917, upon the verdict of a jury for $9,000, reduced by consent to $7,250, and also from an order entered in said clerk’s office on the 26th day of February, 1917, denying appellant’s motion for a new trial made upon the minutes.</p>

Appeal by the petitioner, The City of New York, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 16th day of September, 1915, confirming a report of Business Damage Commission No. 3 in this proceeding awarding $1,696.50 to claimant for damages to her boarding house business conducted on real property known as Ashokan Reservoir, section 18, parcel 871.

<p>Real property — suit to remove cloud upon title — recording act — record of mortgage before record of prior conveyance — decree of sale on foreclosure establishes priority of mortgage — presumptions under recording act — decree of foreclosure cannot be attacked collaterally.</p> <p>Where an owner, having conveyed lands, subsequently gave a mortgage on the same premises and the mortgagee was the first to record the instrument, a decree in a subsequent suit of foreclosure in which the prior grantee was allowed to intervene on its own motion, and which was based on a finding that the mortgagee paid a valuable consideration, and which ordered a sale of the premises is a judicial determination that the hen of the mortgage was superior to the prior conveyance. Hence, in a subsequent suit brought by the purchaser on foreclosure to have the prior conveyance canceled as a cloud upon his title, the judgment roll in the foreclosure action may be put in evidence and establishes the plaintiff’s right to the relief demanded.</p> <p>A conveyance made for a valuable consideration is presumed to be bona fide within the recording acts.</p> <p>The fact that the mortgagor was also an officer of the corporation to which he made the prior conveyance and as such verified the petition for intervention by the grantee, may be regarded as significant upon the question of the bona fides of the grantee’s claim.</p> <p>If errors were made in the suit of foreclosure they cannot be attacked collaterally in the second action, the remedy being either by appeal, or by procuring the opening of the former judgment to permit the defense to be taken.</p>

<p>Motion by the plaintiff, Solomon Morrison, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the granting of a nonsuit and a dismissal of the complaint by the court at the close of the case upon a trial before the court and a jury at the Erie Trial Term in April, 1917.</p>

<p>Appeal by the defendant, Ross Heater and Manufacturing Company, Inc., 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 Cattaraugus on the 21st day of June, 1917, denying defendant’s motion to vacate an order for its examination before trial.</p>

<p>Appeal by the plaintiff, Agnes C. Wallis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kiings on the 11th day of April, 1917, dismissing the complaint upon the merits upon the decision of the court after a trial before the court, a jury having been waived.</p>

<p>Master and servant — negligence — injury to employee while tearing down building — Labor Law, section 18 — erroneous charge.</p> <p>Where the plaintiff, while assisting in tearing down a barn, fell and was injured through the breaking of a platform on which he was standing, at a time when the building was nearly demolished, it is error for the court to charge that there is a presumption of negligence on the part of the master by virtue of section 18 of the Labor Law. Said section relates only to employees injured in the erection, repairing, altering or painting of a building and not to those who are engaged in tearing it down.</p>

<p>Workmen’s Compensation Law — injury to employee of village while alighting from truck — injury not in course of hazardous employment.</p> <p>A person employed as a street commissioner and policeman by a village who, for his own convenience, was riding on the vehicle of a truckman not in the employ of the village, and who was injured while alighting from said vehicle, was not at the time engaged in a hazardous employment within the meaning of the Workmen’s Compensation Law and is not entitled to an award.</p>

Appeal by the defendants, Matt C. Ransom and another, as executors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 21st day of July, 1917, upon the decision of the court after a trial before the court without a jury, with notice of an intention to bring up for review the decision of the court, the order overruling the demurrer and the interlocutory judgment based thereon.

Appeal by the defendant, General Construction 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 8th day of January, 1917, denying its motion to vacate and set aside the service of the summons and complaint herein.

Appeal in each, case by the defendant, Salvatore Di Martino, from orders of the Supreme Court, one in each action, made .at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of January, 1917, denying his motion to set aside the service of the summons and complaint in each action as to him.

Appeal by John Lynde Briggs and others from parts of a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said Surrogate’s Court on or abotit the 25th day of September, 1917, construing the last will and testament of Alice Hall Briggs, deceased.

Appeal by the defendants, Beers Brothers and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 9th day of May, 1917.

Appeal by the defendants, Republic Novelty Works and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 21st day of February, 1917.

Appeal by the defendant, Variety, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of June, 1917, granting plaintiff’s motion for judgment on the pleadings, consisting of a complaint and the demurrer thereto.

Appeal by the defendant, John J. Dempsey, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 13th day of February, 1917, convicting him of a misdemeanor and sentencing him to pay a fine of $500.

<p>Railroads — power of Public Service Commission under Public Service Commissions Law, section 60, to apportion cost of maintenance and operation of interlocker — agreement of railroads as to such cost and maintenance.</p> <p>The Public Service Commission is authorized either by the statute or by a - stipulation between it and several railroad companies to apportion between them the cost of maintenance and operation of an interlocker.</p> <p>Seniority of occupation alone cannot determine how the cost of erection and maintenance of an interlocker is to be borne by railroad companies. Where a railroad company acquired its right to cross the tracks of another company by a contract in which it agreed that the crossing should be constructed and maintained in good order by and wholly at its expense, and that it would pay the cost of structures and appliances which should become necessary in the judgment of the other party to the contract, or by order of public authorities, it is bound to build and maintain an inter-locker-, the operation of which over any part of the tracks of a third company is only necessary in order to make its operation at the crossing of the parties to the contract safe.</p> <p>Section 50 of the Public Service Commissions Law places the burden in the first instance jointly upon said three companies, and then requires the Commission, if the companies do not agree as to apportionment, to fix the proportion which each is to pay, but the fixing of the proportion does not mean that each party must pay a part.</p> <p>The Commission is given power to consider the improvement, the relation ' of the parties to it, and then determine how the cost shall be borne.</p>

<p>Attorney and client — application to discipline attorney—promotion of mining scheme by attorney and others — fraud — evidence — equity.</p> <p>Upon an application to discipline an attorney it was charged that in a mining scheme he had defrauded his clients and associates, and that in an action resulting from the collapse of the scheme he committed perjury in his testimony and in the bill of particulars of his time and expenses. It appeared that a promotion agreement and a subsequent syndicate was formed by several persons, including the attorney, for the promotion of a scheme for the purchase of mines, and that said attorney was sent by the managing committee to investigate the mines, and while there made a deposit from money intrusted to him in order to keep an option alive; that said money was a portion of the cash paid by the sole subscriber, to the underwriting agreement, and that his associates, upon the collapse of the scheme, sought to compel him to repay this money.</p> <p>Held, on all the evidence, that there being no satisfactory proof of any fact showing any bad faith or wrong upon the part of said attorney, the petition should be dismissed, unless within twenty days the judgment against him in an action by the other members of the syndicate is discharged and pending actions against him discontinued. If said acts are done, then the attorney is ordered to cancel a judgment which he has obtained against the other promoters and to pay his pro rata share of the expenses of the scheme.</p> <p>Since the members of the committee were in a joint enterprise, in effect, a copartnership, in buying, financing and disposing of the mines, their acts and duties are a proper subject for settlement in a court of equity.</p> <p>The attorney in this proceeding can be convicted only for an intentional fraud, an intentional and wicked violation of his professional duties, and in determining said question the court must consider his acts and motives with reference to the situation as it existed and the injury his clients are suffering from his wrongful acts.</p>

Appeal by the defendant, Excelsior Bag and Manufacturing Company, from an order of the County Court of Albany county, entered in the office of the clerk of said county on the 28th day of March, 1917, dismissing the defendant’s appeal from the City Court of Watervliet to the County Court and denying defendant’s application for permission to file an undertaking nunc pro tunc to perfect the appeal and for a new trial.

Appeal by the defendant, John H. Jackson, 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 23d day of May, 1916, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the plaintiff, Roy L. Thayer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 26th day of June, 1917, upon the decision of the court after a trial' before the court without a jury.

Appeal by the defendant, Barker, Rose & Clinton Company, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Chemung on the 19th day of April, 1917, upon the decision, of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on the same day, awarding costs to the respondents as in an action for the foreclosure of a mortgage.

Appeal by the defendants, Charles H. Van Burén and another, 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 5th day of October, 1917, denying their motion for a bill of particulars.

Appeal by Frank J. Van Cott and another, as executors, from, an order of the Surrogate’s Court of the county of Otsego, entered in the office of said Surrogate’s Court on the 21st day of May, 1917 affirming a prior order fixing the transfer tax herein.

Appeal by the defendants, Taylor Bros, and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 15th day of May, 1917.

<p>Workmen’s Compensation Law — evidence — proof of dependency —depositions — admissibility of affidavits taken in foreign country before New York commissioner — right to compensation dependent upon statute in force at time of accident.</p> <p>Section 72 of the Workmen’s Compensation Law relating to depositions was intended to be permissive only, and to furnish a further means within the discretion of the Commission of obtaining evidence for use before it and not in any way to limit or restrict its authority under section 68 of the statute, which provides that it shall not be bound by common law or statutory rules of evidence.</p> <p>Hence, affidavits of the father and mother of the decedent and of two others taken in Ireland before a commissioner of oaths of the State of New ’ York are admissible to establish dependency.</p> <p>The enforcement of the right and liability to pay compensation is governed by the statute in force at the time of the accident.</p>

<p>Appeal by the defendant, The Valentine Souvenir Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 6th day of May, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1915, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Henry W. Nichols, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 2d day of October, 1916, upon the decision of the court after a trial before the court without a jury.</p>

Appeal by the defendant, William H. Wood, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 5th day of June, 1917, affirming a judgment of the City Court of Mechanicville in plaintiff’s favor for thirty dollars and costs.

<p>Liens — contents of notice of Tien—construction of notice — statement as to date when debt is due.</p> <p>A notice of lien must contain all of the information required by the statute, notwithstanding the provision of section 18 of the Lien Law permitting a liberal interpretation.</p> <p>Such notice must state, as required by section 12 of the Lien Law, the date when the debt is due.</p> <p>Where a notice of lien states that the items of material were furnished between certain specified dates, and the contract, which is annexed to and expressly made a part of the notice, provides that all payments shall be made on a certain day of each month for all material delivered up to and including a certain day of the preceding month, there is a sufficient compliance with the requirement of the statute although the date when the debt is due is not specifically stated.</p>

Appeal by the defendant, The United States Fidelity and Guaranty Company of Baltimore, Maryland, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Clinton on the 10th day of April, 1917, upon the decision of the court after a trial at the Clinton Special Term whereby among other things it was adjudged that the plaintiff recover of the appellant certain moneys and that the respondent recover from it certain…

Appeal by the defendant, The State of New York, from an order and determination of the Court of Claims, entered in the office of said clerk on the 24th day of October, 1916, awarding claimant the sum of $2,220.

Appeal by the petitioner, Julia B. Briggs, from an order of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 13th day of September, 1917, granting the motion of certain interested parties for her examination herein, and also from the order granting the same relief entered on the minutes of said Surrogate’s Court on the 6th day of September, 1917.

<p>Workmen’s Compensation Law — injury to driver of garbage wagon while engaged in extra work — injury in course of employment, although doing unnecessary work.</p> <p>An employee of a company engaged in collecting and reducing garbage which, as an incident to its business, sold fertilizer, who, although generally employed in driving one of the garbage collecting wagons, did extra work in helping to load the fertilizer into cars, and while employed in such work went upon the roof of the building operated by the employer and while attempting to pull down a rope fell through the skylight and was killed, was injured in the course of his employment.</p> <p>It is immaterial that the decedent did not perform the work in exactly the best manner and that the particular effort in which he was engaged was unnecessary.</p>

Appeal by the plaintiff, Miller R. Foulke, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of January, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 22d day of January, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Macbeth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 3d day of January, 1917, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 5th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Frank E. Clarke 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 13th day of November, 1917, declaring erroneous the count of a majority of the primary votes of the Republican party for appellant as a member of the county committee, and adjudging that Edward A. O’Brien received at said primary election fifty votes as against appellant’s vote of forty-six and…

Appeal by the plaintiffs, Herbert J. Childs and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of October, 1917, sustaining a demurrer to the amended complaint herein. Respondent George T. Kelly, builder of the Ossining Mimic- • ipal Building, brought an action- for his compensation, which the village defended.

<p>Appeal by the defendant, Brooklyn Eastern District Terminal 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 6th day of December, 1916, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 27th day of November, 1916, denying defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for the death of Joseph Kafline caused by falling from a part of defendant’s wharf between North Eighth and Ninth streets in the borough of Brooklyn, city of New York.</p>

Appeal by the contestants, Caroline L. Hendrie 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 11th day of April, 1916, admitting to probate the will of Martha Anna Barlow, deceased, and also from an order entered in said surrogate’s office on the 4th day of February, 1916, settling the issues and denying several motions made during the trial.

Appeal by the defendant, The North River Insurance 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 2d day of April, 1917, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Jacob Fradus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1917, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 27th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, International Agricultural Corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of April, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Jacob Fradus, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1917, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 27th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Susie H. Arkenburgh, as executrix, from an order and decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 5th day of July, 1917, settling the accounts of the executor herein, and also from that part of the decree which adjudges that $2,000 be deducted from a legacy given to Oliver M. Arkenburgh by the will of Eliza J. Arkenburgh, which legacy was of the sum of $20,000.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office July 5, 1917, denying the defendant’s motion to vacate or modify an order for an examination before trial.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office, April 14, 1917, denying the defendant’s motion for judgment on the pleadings.</p>

Appeal by the plaintiff from an order of the Supreme Court, entered in the New York county clerk’s office June 28, 1917, fixing the compensation of the deceased receiver of the Second Avenue Railroad Company of New York.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the Erie county clerk’s office February 13, 1917, dismissing the plaintiff’s complaint upon a verdict directed by the court at the Erie Trial Term, and also from an order entered April 24, 1917, denying the plaintiff’s motion to set aside the verdict and for a new trial upon the minutes of the court.

Appeal by the defendant from a judgment of the Supreme Court, entered in the Erie county clerk’s office June 1, 1917, for $2,807.60, damages and costs, upon the verdict of a jury, and from an order entered May 29, 1917, denying the defendant’s motion to set aside the verdict and for a new trial upon the minutes.

<p>Constitutional law — when statute not accepted by legislative body of a city — Constitution, article 12, section 2.</p>

<p> Decedent’s estate—claim on note. </p>

<p>Appeal from an order of the Supreme Court, entered in the Bronx county clerk’s office on June 27, 1917, denying the plaintiffs’ motion to amend the judgment herein entered upon the remittitur of the Appellate Division.</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, May 22, 1917, upon the verdict of a jury, and also from an order entered May 24, 1917, denying a motion for a new trial.</p>

<p>Practice — disbarment proceedings, First Department.</p>