Volume 181 — New York Appellate Division Reports

Appeal by the plaintiff, Albert A. Moers, 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'October, 1917, granting defendant’s motion for an order compelling plaintiff either to amend his complaint by setting forth a cause of action either in tort or for breach of contract and to strike out all allegations in the complaint inconsistent therewith, or to elect as to which…

Appeal by the defendant, Hettrick Brothers Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of June, 1916, upon the decision of the court after a trial at the New York Special Term.

Separate appeals by the defendants, Stephen M. Weld and others, and by the defendant J. A. E. Pyle, as trustee in bankruptcy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1917, granting an inspection and discovery of books and papers belonging to the defendant trustee and to the bankrupt estate.

Appeal by the plaintiff, Abraham I. Shapiro, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 10th 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 4th day of April, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ford Motor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 9th day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying defendant’s 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 Court of Claims, entered in the office of the clerk of said court on the 9th day of December, 1916, awarding to the claimant the sum of $21,284 for damages alleged to have been sustained by reason of an assault upon him by an inmate of the Kings Park State Hospital. The opinion of the Court of Claims is reported in Munro v. State of New York (10 State Dept. Rep. 157).

Appeal by Georgie B. Wentz and others from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 16th day of October, 1917, denying a motion by the contestants to open a default in a proceeding to probate a will.

Appeal by the defendants, Archibald M. Ainslie Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of May, 1917, denying their motion for judgment on the pleadings consisting of a complaint and their separate demurrers thereto.

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

<p>Municipal corporations — water supply, city of New York—power of commissioner to direct water company to extend its distribution system — statutes construed — order of commissioner enforced by mandamus. .</p> <p>A corporation organized under section 80 of the Transportation Corporations Law for the purpose of supplying water to the authorities and inhabitants of the former town of Jamaica, now incorporated in the city of New York, is required by statute to supply said authorities and inhabitants with pure and wholesome water at reasonable rates and cost and, by virtue of section 472 of the charter of Greater New York, the commissioner of water supply, gas and electricity in his power to exercise superintendence, regulation and control in respect of the supply of water by such company may direct it to install new mains and hydrants at its own expense.</p> <p>Such order of the commissioner will be enforced by mandamus where it is not capricious, arbitrary, unreasonable or tyranical.</p> <p>The powers conferred upon said commissioner by section 472 of the Greater New York charter do not relate merely to the “ sources ” of water supply, but. have to do with distribution to the municipal corporation and to individual consumers.</p>

Appeal by the plaintiff, Caroline Hanke, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of December, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of November, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Greeley Square Hotel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 28th day of June, 1917, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 22d day of June, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Hudson Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of April, 1917, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Crandall & Godley Company and others, from a judgment of the Supreme Court in favor of the plaintiff’s testatrix, entered in the office of the clerk of the county of New York on the 31st day of August, 1916, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, George B. Morss, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of May, 1917, upon the decision of the court after a trial at the New York Special Term.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 23d day of May, 1917, declaring the interest of Sheffield Phelps in certain shares of the stock of a national bank to be exempt from taxation under the laws relating to taxable transfers of property.

Appeal by George Peabody Wetmore, individually and as executor, and others from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on or about the 2d day of April, 1917, in so far as it overrules certain contentions made by the appellants.

Appeal by the defendant, J. J. Steindler 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 10th day of February, 1917, on the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 8th day of March, 1917, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Elsie Barbara Rosenbusoh, 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 12th day of March, 1917, upon a dismissal -of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Bills and notes — presentation of check through clearing house and tentative entry thereof on books of drawee — return of check on notice of insolvency of drawer — when no acceptance which entitles payee to recover of drawee — estoppel — custom of clearing house.</p> <p>Where the plaintiff, a bank named as payee of a cheek drawn upon the defendant bank, forwarded the instrument to its correspondent for collection and the correspondent presented the check through the New York clearing house, of which the drawee was also a member, and the drawee on receiving the check through the clearing house made a tentative entry thereof on its books, but did no unequivocal act indicating an intention to pay the check and returned it the same day to the correspondent bank on learning that the drawer had been taken over by the banking department of a foreign State, the payee is not entitled to recover on the theory that the drawee had irrevocably accepted the check.</p> <p>On the facts aforesaid there is no estoppel as between the payee and drawee, as the latter neither canceled the check, nor marked it paid, nor retained it. The plaintiff not being a member of the New York clearing house, is not bound by the constitution and rules of that institution.</p>

Appeal by the defendant, Triumph Film Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of April, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Stafford Hendrix, from a judgment of the Supreme Court in favqr of the defendants, entered in the office of the clerk of the county of New York on the 15th day of March, 1917, dismissing the amended complaint on the pleadings, and also from an order entered in said clerk’s office on the same day granting. defendants’ motion for judgment on the pleadings, consisting of the amended complaint and a demurrer thereto.

<p>Appeal by the relator, James A. Garrity, 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 28th day of August, 1917, denying his application for a peremptory writ of mandamus.</p>

<p>Separate appeals by Rebecca A. D. Wendel Swope and another, as administratrices, and others, from an order of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 17th day of April, 1917, dismissing their appeal from the appraisal of the property of John G. Wendel, deceased, and also from the order of said Surrogate’s Court entered therein on the 13th day of March, 1917, fixing the transfer tax herein and affirming a supplemental report of the appraiser, and also from an order of said Surrogate’s Court entered on the 5th day of May, 1916, upon the appeal taken by the said Comptroller from the orders of the surrogate made and entered on the 10th and 24th days of March, 1916, respectively.</p>

Appeal by the defendant, William M. Barrett, as president of The Adams Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 9th day of April, 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.

<p>Appeal by the plaintiff, Abraham Rosenberg, 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 Sullivan on the 7th day of March, 1917, staying all proceedings herein until the determination of another action brought against the plaintiff by the defendants.</p>

Appeal by the defendants, Kazemier •& Uhl, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 1st day of November, 1917.

<p>' Appeal by the defendants, Marx & Rawolle, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 16th day of July, 1917.</p>

<p>Workmen’s Compensation Law — method of determining average annual earnings and average weekly wages where claimant has worked seven days a week during year before accident — Workmen’s Compensation Law, section 14, construed.</p> <p>In subdivisions 1 and 2 of section 14 of the Workmen’s Compensation Law, providing that in cases included within such subdivisions the average annual earnings shall consist of 300 times the average daily wage or salary, the number 300 was selected because it bears an approximately close relation to the number of working days in the year, Sundays and holidays excluded.</p> <p>But where an employee has worked seven days a week for substantially the entire year, the method of determining Ms average earmngs indicated in either subdivision 1 or 2 would be an injustice to Mm, and Ms claim falls within subdivision 3 wMch provides for a case where “ either of the foregoing methods of arriving at the annual average earmngs of an injured employee cannot reasonably and fairly be applied.”</p> <p>Where the Commission has ascertained that in a ease where an employee has worked seven days a week for the entire year, the use of the number 332 instead of 300 effects a fair and reasonable result, the method used is protected by the statute.</p>

Certiorari issued out of the Supreme Court and attested on the 1st day of October, 1917, directed to the Public Service Commission of the State of New York, Second District, and Seymour Van Santvoord and others, Commissioners, composing the Public Service Commission of the State of New York, Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in overruling relator’s demurrer to the…

Appeal by the relator, United Verde Copper 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 18th day of June, 1917, denying its motion for a peremptory writ of mandamus. Prior to the year 1900 there was incorporated in the State of West Virginia a corporation under the name of United Verde Copper Company.

Appeal by the defendant, William C. Hager, from a judgment of the Court of Special Sessions of the City of New York, county of Kings, rendered against him on the 4th day of August, 1916, convicting him of the crime of selling a drug in violation of section 1142 of the Penal Law.

Appeal by the defendant, The Sackett & Wilhelms 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 4th day of March, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of March, 1916, 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>

<p>Appeal by the defendants, Hattie C. Smith, individually and as trustee, 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 13th day of July, 1917, upon the decision of the court after a trial at the Kings County Special Term, and also from an interlocutory judgment entered in said clerk’s office on the 20th day of June, 1917, and also from an order entered in said clerk’s office on the 13th day of July, 1917.</p>

Cross-appeals by the plaintiffs, Thomas Murcott and others, and by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 29th day of December, 1916, upon the decision of the court after a trial at the Kings County Special Term. Plaintiffs appeal from the judgment in so far as it limits their recovery to the sum of $2,000.

Appeal by the defendants, Alexander Zahka and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of March, 1917, upon the decision of the court after a trial before the court, a jury having been waived. The action was brought to recover for the alleged breach of a participation agreement regarding a bond and mortgage.

Appeal by the defendant, William M. Barrett, as president, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 14th day of June, 1917, upon the decision of the court after a trial before the court, a jury having been waived.

<p>Practice — stay — when legal action not stayed pending suit in equity to enforce settlement of action — accord and satisfaction not executed.</p> <p>Where an agreement to settle an action made on the eve of trial was never carried out and the cause was restored to the calendar on the plaintiff’s motion and the defendants took no appeal from the order, they are not entitled to a stay of the plaintiff’s legal action until the determination of a suit in equity brought by them for the specific performance of the agreement to settle the prior action.</p> <p>It seems, that the defense of settlement could be set up by the defendants in the legal action by a supplemental answer, and until the court in its discretion has refused to allow such supplemental answer the defendants have no ground for a stay, which would deprive the plaintiff of his right to a determination of the issues by a jury.</p> <p>Defendants’ affidavits examined, and held, insufficient to establish a settlement which would prevent the plaintiff from prosecuting his legal action, or confer upon the defendants the right to compel the enforcement of the settlement in equity.</p> <p>An attempted settlement of a cause not fully executed is not available as a defense to the action, or as a basis of a suit in equity to enforce a settlement.</p> <p>Dowling, J., dissented.</p>

<p>Appeal by the plaintiff, New York Institution for the Instruction of the Deaf and Dumb, 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 June, 1917, denying its motion to compel the defendant to accept service of exceptions to the court’s refusal to pass upon certain requests submitted by it.</p>

Appeal by the defendant, The Woodhaven Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 7th day of May, 1917, pursuant to the direction of the court made upon a motion for judgment on the pleadings.

Appeal by the defendants, Herbert S. Sisson, as State Commissioner of Excise, and another, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 8th day of October, 1917, directing the Special Deputy Commissioner of Excise for the county of Nassau to issue to the relator a liquor tax certificate for his place in the village of Rockville Center.

Appeal by the plaintiff, John J. Stevens, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 27th day of February, 1917, dismissing the complaint at the opening on a trial at the Orange Special Term.

Appeal by the plaintiff, William W. Cline, from judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chemung on the 31st day of December, 1914, and the 5th day of January, 1915, respectively, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of January, 1915, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Sale — action for breach of contract —■ failure to make prompt shipment — counterclaim by purchaser for loss from rescission of contract for resale — failure of vendor to make prompt delivery under one contract no excuse for purchaser’s rejection of tender under another contract made at same time.</p> <p>In an action for breach of contract of sale it appeared that the plaintiff on April eleventh made a written contract to sell the defendant several tons of steel scrap; that the defendant resold the steel and the plaintiff had knowledge when he made the contract that the defendant had sold or expected to resell. The contract read “ shipment to be made prompt.” It appeared that in the trade “ prompt ” shipment required shipment within thirty days. Plaintiff made shipments on May third and fifth, but no other shipments being made the defendant, after urging by mail the necessity of prompt delivery, canceled the contract on May thirteenth, because of delay. The parties also made a separate contract whereby the plaintiff sold to the defendant several tons of annealing pots, the contract providing for “ shipping instructions when the material is ready to be loaded; ” that on April twenty-eighth plaintiff requested shipping instructions which were not given and subsequently renewed its tender but defendant refused to accept.</p> <p>Held, on all the evidence, that the plaintiff was guilty of an inexcusable breach of its contract to deliver the steel scrap, but that the defendant is liable for the purchase price of the carload of steel shipped on May fifth, for which it had not paid, and for damages for not accepting the annealing pots.</p> <p>“ Prompt ” shipment means expedition and admits of less delay than would be permissible under a contract to make delivery within a reasonable time.</p> <p>The plaintiff’s breach of contract in respect to the steel scrap did not constitute a sufficient reason for the rejection of the annealing pots, as the contracts were'separate.</p> <p>Since the defendant resold the steel scrap with reference to the plaintiff’s contract, and the vendee rescinded because of delayed shipments by plaintiff, the defendant was entitled to counterclaim for loss of profits on the resale.</p>

<p>Public Health Law — advertisement by dentist constituting practice of dentistry within meaning of statute — practice under false or assumed name — penalty — constitutional law — police power.</p> <p>A duly licensed and registered dental practitioner caused to be printed in a public newspaper on three separate days 'an advertisement as follows: “ Roofless, G-umless, Plate is an exclusive feature of King dentistry. This natural, convenient and everlastingly comfortable plate cannot be had elsewhere. Ask for a free demonstration of its merits. It cannot drop, rock nor come loose. Absolutely invisible.” And then appeared in large type the words “ Dr. Hewson’s (King) Dental Prices,” followed by the advertised prices for various services in small type, and further on in the advertisement appeared the following: “ Dr. E. L. Hewson’s Dental Offices, formerly King Dental Offices, 50 Court Street,” the words “ King Dental Offices ” being in much larger type than the rest of the sentence.</p> <p>Held, that such advertisements constitute the practice of dentistry within the meaning of the Public Health Law, section 190, as amended by chapter 129 of the Laws of 1916, and such practice will be deemed to have been conducted under a false, assumed.or trade name in violation of section 203 of the Public Health Law, as amended by chapter 129 of the Laws of 1916, and chapter 507 of the Laws of 1917, rendering said dentist liable to a penalty of $100 for each violation.</p> <p>This provision of the Public Health Law is a valid exercise of the police power and became binding on said dentist even though it made that unlawful which before was lawful.</p>

Appeal by the defendant, Hudson River Telephone .Company, 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 18th day of June, 1917, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 20th day of June, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Martin S. Lynch, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Tioga on the 29th day of August, 1917, dismissing the complaint upon the decision of the court after a trial before the court without a jury.

<p>Appeal by the defendant, The New York Central and Hudson River 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 Oswego on the 14th day of September, 1914, 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> <p>The verdict and interest was later reduced by the court to $1,761.50.</p> <p>Also an appeal by the defendant from a decree or order of the Surrogate’s Court of the county of Oswego, entered in the office of said Surrogate’s Court on the 18th day of July, 1914, fixing and determining the amount which plaintiff should be permitted to pay to her attorney in this action as compensation for Ms services and expenses at $1,620.50, besides taxable costs.</p> <p>Earl Davis, plaintiff’s testator, was in the employ of defendant as a carpenter. On March 15, 1913, he was engaged, with other employees of defendant in the erection of an icehouse upon defendant’s property in the city of Oswego. The structure when only partly erected was blown down by a Mgh wind and Davis was Mlled.</p> <p>He left a will, which was duly probated, and letters testamentary issued to the plaintiff, Ms mother. By the will Ms property was all left to Ms mother. He left a widow, with whom he had not been living for some time, and no cMldren or descendants.</p> <p>Plaintiff brought tMs action to recover the damages sustained by the widow and his estate on account of the death of Davis, allegmg that it was caused by the negligence of the defendant. The action was begun in October, 1913. In May, 1913, plaintiff made a written contract with her attorney by wMch he agreed to commence and prosecute tMs action, and in consideration of his agreement to make no charge for Ms services unless successful, she agreed to pay him one-third of the amount received in case the claim was settled without trial, and fifty per cent of the amount received in case of trial, whether compromised thereafter or not, in addition to taxable costs.</p> <p>The defendant served an answer on November 28, 1913, putting in issue the material allegations of the complaint, and on December 26, 1913, the defendant made a settlement with Nettie S. Davis, the widow, paying her $400 and receiving from her a written release of defendant from all liability for damages sustained by her as widow and sole beneficiary of said Davis by reason of Ms death, and on April 16,1914, the defendant served a supplemental answer by leave of the court setting up tMs settlement and release as a further defense to the action.</p> <p>The case came to trial on May 21,1914, and notwithstanding the objection of defendant’s counsel the trial proceeded as if no settlement had been made. In the course of the trial and after defendant had put in evidence the release, the court, in the absence of the jury, took proof of the contract between the plaintiff and her attorney, and of the amount of the funeral expenses which plaintiff had paid, over defendant’s objection and exception. Thereupon the jury was recalled and the case submitted to them, without disclosing to them the evidence taken by the court in their absence.</p> <p>The jury rendered a verdict for the plaintiff of $3,000. Defendant’s counsel thereupon moved to set aside the verdict and for a new trial under section 999 of the Code, whereupon the court stated that all motions would be reserved until the Special Term to be held at Oswego on July 18, 1914.</p> <p>On June 11, 1914, plaintiff petitioned the surrogate of Oswego county to determine and allow the amount of the funeral expenses and the amount of her attorney’s hen and fees, disbursements and expenses of the action, so that the same might be deducted from said $3,000 verdict. Whereupon the widow and the defendant were cited before the surrogate, where testimony was taken and a hearing had, and on July 17, 1914, the surrogate made an order or decree fixing, auditing and allowing $141 for the funeral expenses paid by the plaintiff, and $1,620.50, besides taxable costs, being one-half the verdict and interest thereon, for the fees and services of plaintiff’s attorney in the prosecution of the action, and also fixing, auditing and allowing to the plaintiff $61.98 as her legal commissions as executrix on the amount of said verdict and interest thereon.</p> <p>Thereupon, and on July 18, 1914, at a Special Term held in Oswego, the justice who had presided at said trial received proof of the above-mentioned decree of the surrogate, and made an order reciting that defendant had moved to set aside said verdict and to grant a new trial, denying such motion and directing that the verdict of $3,000, rendered by the jury, and interest thereon, be reduced to the sum of $1,761.50, and that judgment for that amount, with taxable costs, be entered upon the verdict; thereby allowing plaintiff the amount so allowed by the surrogate except the $61.98, the fees of the plaintiff as executrix, which the trial court was of opinion should not be allowed. Judgment was thereupon entered in favor of the plaintiff in accordance with this order, and defendant has appealed from the judgment and the order and also from the decree and order of the surrogate.</p>

Appeal by the plaintiff, Frank M. Adams, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 26th day of April, 1917, dismissing the complaint on the merits upon a decision of the court after a trial before the court at the Chautauqua Special Term.

Appeal by the defendant, Mary K. Gomolski, from an order of the Supreme Court, made at the Oneida Trial Term and entered in the office of the clerk of the county of Oneida on the 17th day of November, 1916, vacating and annulling a judgment herein in her favor.

<p>Agricultural Law — application of manufacturer of fertilizer for certificate under Agricultural Law, section 222—mandamus — moving papers not showing right to certificate — when alternative writ may be granted.</p> <p>A manufacturer of a fertilizer known as “ stonemeal ” is not entitled to a writ of mandamus requiring the Commissioner of Agriculture to issue a certificate under section 222 of the Agricultural Law, where the moving papers are absolutely silent upon the question as. to whether or not the material will enrich the soil, and the opposing affidavits tend strongly to show that it is not an efficient factor in the production of crops.</p> <p>However, if the record had disclosed a question of fact as to the fertilizing value of the material, the manufacturer thereof would have been entitled to an alternative writ of mandamus to have that fact determined.</p>

<p>Appeal by the defendants, New York Car Wheel Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 6th day of July, 1917.</p>

<p>Appeal by the defendants, William C. Ormond and others, as assessors, 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 June, 1917, denying a motion to dismiss a writ of certiorari.</p> <p>On March 2, 1916, the board of assessors of the city made an award to relator of $824 for damages caused to the property owned by relator, by a change of grade of Bay" Thirty-fourth street. The relator objected to the award, and such objections were heard by the board, which overruled the objections and transmitted the matter to the board of revision of assessments, which, on March 2, 1917, confirmed the award. The relator was notified of a hearing before the board of revision, but did not attend, and on the 19th day of April, 1917, sued out the writ of certiorari. Thereafter the defendants moved to dismiss the writ, the motion was denied and the defendants appealed.</p>

Appeal by the defendant, Sun Printing and Publishing Association, 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 August, 1917, granting plaintiff’s motion for judgment on the pleadings consisting of a complaint and the demurrer thereto.

Appeal by the plaintiff, Sol Bloom, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1917, denying plaintiff’s motion to sustain his demurrers to the first and second counterclaims in the amended answer of the defendant Florence M. Sutton, and granting the motion of said defendant to overrule the said demurrers.

Appeal by the defendant, Leslie B. Sanders, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 9th day of February, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George W. Harding, as administrator, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 9th day of April, 1917, upon the verdict of a jury, and also from orders entered in said clerk’s office on the 28th day of March, 1917, and the 10th day of April, 1917, respectively, denying plaintiff’s motion to set aside the verdict and for a new trial.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of July, 1916, upon the decision of the court after a trial at the New York Special Term. The judgment enjoined the maintenance of stone stairways, columns and ornamental stone work in front of public baths adjoining plaintiffs premises.

Appeal by the plaintiff, Jay D. Cudney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of June, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Philip Cedar, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1917, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the same day denying appellant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Franklin A. Chappell, 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 9,th. day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of June, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Thorvald Maijgren, 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 17th day of February, 1917, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Intoxicating liquors — suit to recover moneys expended in improving saloon property on faith of liquor tax certificate having forged consents — erroneous direction of verdict for defendant — false representation as to validity of license.</p> <p>In an action brought to recover losses sustained by the plaintiff who was induced to take a lease of premises for the purpose of selling liquors and who expended a considerable sum of money in equipping the premises for that purpose before discovering that the liquor license procured by the defendant brewing company was invalid because the consents thereto were forged, it was error for the court to direct a verdict for the defendant where the jury would 'have been justified in finding that the defendant, although at first ignorant of the forgery, allowed the plaintiff to continue the improvements and accept the license after the defendant’s agent had discovered that the consents were forged.</p> <p>A representation as to the validity of a liquor tax license, which is false, even if not known to be false, is equivalent to a representation known to be false, when it is made recklessly and in utter disregard of whether it is true or false.</p>

<p>Appeal by the defendant, Albertina D. Creveling, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1917, denying defendant’s motion for judgment on the pleadings consisting of a complaint and answer.</p>

Appeal by Thomas Cummings, as administrator, from a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 4th day of June, 1917, surcharging his account with the sum of $408.

Appeal by the defendant, Charles Zarembowitz, 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 20th day of April, 1917, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 11th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Western Union Telegraph Company, from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the' county of New Yoik on the 19th day of July, 1917, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Seventh District.</p> <p>An appeal is also taken from said judgment of the Municipal Court.</p>

Appeal by the defendant, Banco De Tamaulipas, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of July, 1917, overruling its demurrers to the first and second causes of action set forth in the second amended complaint.

<p>Carriers — negligence — contributory negligence—liability of railroad company for loss of jewelry left by passenger in dining car — evidence — presumption as to commission of crime — appeal — when exception to erroneous charge not necessary.</p> <p>In an action by a passenger of defendant railroad company to recover for the loss of jewelry valued at about $1,200, claimed by her to have been tied in a handkerchief and left in the defendant’s .dining car upon the .. table, evidence examined; and held, insufficient to establish proof of theft» or negligence of the defendant, tendering it loss.</p> <p>No one is presumed to have committed a crime; the presumption is otherwise. Whether or not the plaintiff was guilty of contributory negligence in leaving her jewelry tied in a handkerchief upon the table in the defendant’s dining ear was a proper question for the jury.</p> <p>An exception is not necessary when the court has charged on an entirely erroneous theory.</p>

<p>Appeal by the defendant, American Alcohol Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of October, 1917, overruling defendant’s demurrer to the complaint as not stating a cause of action.</p>

Appeal by the plaintiff, Condon Wrapping Machine Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of August, 1917, vacating an attachment.

Appeal by the defendant, James Beggs & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 5th day of February, 1916, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Pipe & Contractors Supply Company, from a judgment of the Supreme Court in- favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of December, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1916, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Richmond Light and 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 Richmond on the 24th day of April, 1917, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Alfred P. Russell, as County Treasurer of Dutchess county, 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 Dutchess on the 29th day of September, 1917, granting the application of the relator for the issuance of a liquor tax certificate.

Appeal by the defendant, Thomas Downes, 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 14th day of December, 1916, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 3d day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Rachel Brenner, 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 12th day of April, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the defendant, The Equitable Trust Company of New York, as executor and trustee, from an order of the Supreme Court, as resettled, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of October, 1917, overruling defendant’s demurrer to the complaint.</p>

Cebtiobabi issued out of the Supreme Court and attested on the 17th day of April, 1913, directed to the Public Service Commission of the State of New York for the First District and to Edward E. McCall and others, as commissioners thereof, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in directing the relator to set aside twenty per cent of its gross receipts to pay for maintenance and…

Appeal by the defendant, Howard Thayer Kingsbury, individually and as executor and trustee, 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 17th day of October, 1917, upon the decision of the court after a trial at the New York Special Term. The judgment restrained the defendant from separating premises No. 15 Irving place in the city of New York from premises Nos. 17 and 19 Irving place.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 10th day of January, 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 defendants, Anna Gorg and another, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of January, 1917, upon the decision of the court, a jury having been waived.

<p>Appeal by the defendant, American Synthetic Dyes, Incorporated, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 11th day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1917, denying defendant’s motion for a new' trial made upon the minutes.</p> <p>The action is brought by the assignee of Knapp and Kelley to recover broker’s commissions upon a sale of 3,100 tons of picric acid to the Russian government for $6,200,000. The sale was made in the fall of 1915 The plaintiff declared upon a contract made in a letter written' by the defendant and delivered by it to Knapp on June 22,1915. The plaintiff recovered a verdict at Trial Term of $261,000, and the defendant appeals. The contract was as follows:</p> <p>“ New York City, June 22nd, 1915.</p> <p>“ Mr. Clyde D. Knapp and Mr. C. Carleton Kelley, “New York City:</p> <p>“ Gentlemen.— As the result of a conference this afternoon we understand from you that you are in touch with the representative of a prospective purchaser of picric acid in large quantity and covering deliveries for substantially eighteen months. You desire to be protected in the matter of a commission for bringing about a sale, if any shall be made on the part of the American Synthetic Dyes Incorporated to the prospective purchaser in question, and, therefore, we are writing this letter to assure you that if the business which you are introducing to us on this occasion results in the making and carrying out of a contract for the supplying of picric acid to this prospective purchaser, we will set aside to pay over to you as a commission 4.1% of the gross sales price received under such a contract. It is understood that there is no obligation resting on the American Synthetic Dyes Incorporated to make any contract which it may not consider in its interest to make.”</p> <p>The learned court read the letter to the jury, and then said: “That contract as I read it and as I interpret it to you means nothing more than this: That this man Kelley and this man Knapp were brokers, and that under the contract that they might introduce to these people, as prescribed by the words of the contract itself, a purchaser for the sale of that picric acid. If the brokers named above, the plaintiff’s assignors in this case, were in any manner whatsoever instrumental in bringing about or introducing or negotiating, a sale of picric acid to a prospective purchaser, the defendant in this case would be liable for the commission, and the commission is fixed by the terms of the contract, and that is the contract as I interpret it, and, therefore," as I view this litigation there are two questions only which you need consider in this case: The first is, did the plaintiff’s assignors, Kelley and Knapp, ever bring to the attention of the defendant company, or introduce to the defendant company or bring about in any manner, directly or indirectly, a customer to whom they sold picric acid as covered and intended by that contract and agreement. Did they do that? The defendant says they did not. That is one question. And the next question you will consider in this case is whether this contract was ever abrogated. The defendant says it was. The plaintiff says it was not.”</p>

Appeal by the plaintiff, Meier Steinbrink, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 22d day of January, 1917, dismissing the complaint on the merits upon the decision of the court after a trial at the Kings County Special Term.

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

Appeal by the defendant, Sumner Gerard, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of February, 1917, overruling his demurrer to the complaint.

Appeal by the defendants, The City of New York 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 Richmond on the 10th day of January, 1918, granting an injunction pendente lite.

<p>Will — trust — suspension of power of alienation — when codicil extending trust for third life may be disregarded.</p> <p>Where the general scheme of a will contemplated a trust for the lives of the testator’s wife and daughter, but was subsequently extended by a codicil so as to include the life of a son-in-law if he survived Ms wife, the provision for the son-in-law may be disregarded in so far as it extends the trust for the tMrd life in violation of the statute, and the remainder of the trust declared valid, the original scheme of the will being thereby left intact.</p>

Appeal by the defendant, Schwartz & Company, Inc., ’ from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of June, 1917, upon the verdict of a jury.

<p>Dower — when widow estopped as against bona fide purchasers — rabbinical divorce — rights of grantees of bona fide purchasers.</p> <p>Where a wife, • as complainant, procures a rabbinical divorce, acquiesces in the remarriage of her husband, and is herself subsequently remarried and lives with her second husband for twenty-three years, she is estopped from claiming dower in the lands of her first husband which had been conveyed by him to bona fide purchasers by deeds in which his second wife joined, releasing her dower.</p> <p>Grantees of such bona fide purchasers have all the rights of the original grantees from the plaintiff’s divorced husband, and need not show their personal reliance upon his apparent marital status.</p>

Appeal by the relator, Philip Teitelbaum, from an ex parte 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 15th day of November, 1917, amending a prior order dismissing and quashing a writ of habeas corpus allowed on behalf of the relator and ordering “ that the officer, entrusted with the execution of the said warrant of the Governor deliver the prisoner into the custody of the agent…

<p>Appeal by Mary Libbie Raynor from part of a decree, of the Surrogate’s Court of the county of Orange, entered in the office of said Surrogate’s Court on the 30th day of July, 1917, directing among other things that the residue of the estate herein be paid to the executrices and be invested by them during the lifetime of the appellant who was the life tenant.</p>

Appeal by the relator, Philip Goldfarb (who had been committed for extradition to Pennsylvania), from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of November, 1917, dismissing a writ of habeas corpus and directing that the relator be delivered into the custody of the agent designated in the rendition warrant issued by the Governor of the State of New York.

Appeal by the plaintiff, Max Hoffman, 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 3d day of May, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of May, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Roger Williams Silver 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 upon the verdict of a jury, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

<p>Statute of Frauds — memorandum in writing — acceptance by parol — sale — action by vendee for breach of contract — evidence.</p> <p>A definite offer in writing signed by a vendor is sufficient to charge him, even though the acceptance be by parol.</p> <p>Hence, in an action by a vendee under an executory contract for the sale and delivery of sMns to recover damages for the failure of the vendor to perform, there being a sufficient memorandum in writing signed by the defendant, within the Statute of Frauds, it was competent for the plaintiff to show a parol acceptance given by the defendant on the same day. Since there was no reference in the contract to a sample, the action cannot • be sustained on that theory.</p> <p>As the contract was indefinite with respect to the grade or quality of skins, and there was no evidence wdth respect to the manner in which such skins are dealt in or with respect to any custom, a verdict on the basis of a market price considerably higher than the minimum price, depending on' the grade or quality of the skins, should not be permitted to stand.</p>

Appeal by the defendant, Superno Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of June, 1917, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Massachusetts Bonding and Insurance Company, 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 18th day of October, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Daniel P. Ritchey, 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 21st day of May, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, Frank M. Knapp, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 27th day of October, 1916, upon the 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 same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, Edward Lumley and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 17th day of January, 1917, dismissing the complaint on the merits upon the decision of the court after a trial at the Erie Special Term.</p>

Appeal by Elvina L. Varet and others from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 27th day of January, 1917, settling the accounts in these proceedings.

<p>Appeal by the Missionary Society of Saint Paul the Apostle in the State of New York from part of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of August, 1917.</p>

Certiorari issued out of the Supreme Court and attested on the 21st day of June, 1917, directed to the Public Service Commission of the State of New York for the First District and to the Commissioners thereof, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in allowing and apportioning certain expense connected with the elimination of a grade crossing.

Appeal by the defendant, Louise Grasset Thompson, 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 4th day of May, 1917, as resettled by an order made on the 8th day of May, 1917.

Appeal by the defendant, Henry 'Meinshausen, 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, denying his motion for an order requiring this action to be continued by the personal representatives of the deceased plaintiff or in default thereof that the action be abated.

Appeal by the plaintiff, Annie T. Sullivan, 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 5th day of February, 1917, dismissing the complaint on the merits upon the decision of the court, a jury having been waived.

Appeal by the plaintiff, Bertha Frankel, 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 9th day of March, 1917, upon the dismissal of the complaint at the opening.

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

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

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

Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Suffolk county, entered in the office of the clerk of said county on the 11th day of September, 1917, reversing a judgment of the police justice in the town of East Hampton, L. I., rendered August 1, 1917, convicting the defendant of a misdemeanor.

Appeal by the defendant, Horatio N. Daniell, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of November, 1917, denying defendant’s motion to change the place of trial herein.

Appeal by the defendants, Thomas T. Feeley and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 1st day of October, 1917, upon the decision, of the court after a trial before the court without a jury.

Appeal by the defendants, Rose Haskell and another, 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 14th day of February, 1917, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Frank G. Butler, 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 New York on the 19th day of January, 1917, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Frank Reilly, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, Part V, rendered against him on the 22d day of December, 1916, convicting him of the crime of assault in the second degree.

Appeal by the defendants, Shubert Theatrical Company and -others, from an order of the Supreme Court, made at the New York Special Term and entered in the ffice of the clerk of the county of New York on the -7th day of July, 1917, overruling their demurrer to the amended complaint.

<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 plaintiff, Milton Schnaier, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 15th day of June, 1917, upon a dismissal of the complaint at the opening by direction of the court.</p>

Cross-appeals from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York upon the report of a referee, judicially settling the accounts of the plaintiff trustee and instructing it as to the disposition to be made of certain securities, extraordinary dividends and stock subscription rights.

Appeal by the plaintiff, Flinn Realty 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 2d day of August, 1917, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Jacob A. Kirsch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of March, 1917, upon the verdict of a jury, and also from' an order entered in said clerk’s office on the 14th day of February, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel Roseff, from a judgment of the City Court of Mount Vernon in favor of the defendant, entered in the office of the clerk of the City Court of Mount Vernon on the 23d day of February, 1917, dismissing the complaint on the merits upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

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

<p>Husband and wife — action to annul marriage upon ground that wife had husband living — defense — validity of divorce procured in another State without personal service of process upon or appearance of defendant.</p> <p>The courts of the State of the last matrimonial domicile can grant a decree of divorce without personal service of process upon or the appearance of the defendant therein, where the constructive service of process is made in accordance with the laws of that State, and such a decree is entitled to full faith and credit in the courts of all the States of the Union.</p> <p>Hence, where in an action to annul a marriage between the plaintiff and defendant, on the ground that the defendant at the time the marriage was solemnized had a husband living, it appears that the plaintiff and defendant were married in South Carolina; that prior thereto the defendant had procured a divorce from her former husband in the State of Alabama, théir last matrimonial domicile; that the defendant, who was then a resident of the State of Mississippi, was not personally served and did not appear, but was served by publication and by mail, a judgment in favor of the plaintiff should be reversed.</p>

<p>Pleading — complaint alleging loan of stock returnable on demand pursuant to valid express contract and praying equitable relief — demurrer — failure to state cause of action at law — effect of prior judgment holding contract invalid.</p> <p>A complaint which shows that the plaintiff pursuant to the terms of a valid express contract executed by the defendant’s president, loaned stocks to it returnable on demand, and alleges that plaintiff was induced to enter into said contract by reliance upon certain false statements by defendant’s president, and that the defendant instead of using the stock to borrow money for a certain specified purpose, pledged it and used the money obtained for other purposes, and that the pledgee thereafter sold the stock, does not state a cause of action for an accounting, and since there was no allegation that any" demand had ever been made for the return of the stock, it does not even state a cause of action at law and is, therefore, demurrable.</p> <p>The court was not bound,, under the circumstances, to hold the contract invalid on its face, because it was so held in another action between the same parties.</p>

Appeal by the defendant, United Drug Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of July, 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, and also from an order entered in said clerk’s office on the 20th day of July, 1917, denying a…

<p>Appeal by George Huber Thomson and others from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 13th day of July, 1917, admitting to probate a paper purporting to be the last will and testament of George H. Huber, deceased.</p>

<p>Appeal by Evelina D. Clark and others from parts of a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 22d day of June, 1917, settling the accounts herein.</p>

Appeal by the plaintiff, The Bankers Service 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 9th day of March, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of March, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Insurance — benevolent society— right of next of kin of decedent under by-laws to maintain action for death benefit.</p> <p>A provision of the by-laws of a benevolent society that for the death of any effective member it would “pay to the widow, family or legal heirs, or to whom the member shall direct in his last will and testament or by a written declaration previously made,” a certain sum, does not exclude the next of kin in case the insured left no widow or children from maintaining an action for a death benefit.</p> <p>An action to recover for the death of a member of such a society may be maintained by the administrator of the decedent in behalf of the next of kin.</p>

Appeal by the plaintiff, Solomon Posnick, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 13th day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of June, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Pleading — denials essential to affirmative defense should not be stricken out.</p> <p>Where in an action for the breach of a building contract, the plaintiff alleges non-performance on the part of the defendant, and also due performance of all the terms of the contract on plaintiff’s part, except as waived by the defendant, and the defendant pleads as an affirmative partial defense that the plaintiff failed to assert its claim within ninety days as required by the terms of the contract, denials of plaintiff’s allegations as to non-performance were in no sense essential to the affirmative defense, and were properly stricken out, but denials as to due performance by the plaintiff except as waived by the defendant were essential to the defense and should not be stricken out.</p> <p>It is well settled that denials which are essential to render available the other facts pleaded as a separate defense should not be stricken out.</p>

Appeal by the defendant, Marion O’Reilly, 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 January, 1917, upon the verdict of a jury for $4,500, and. also from an order entered in said clerk’s office on the 17th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Emma T. Terhune, as executrix, from a judgment of the Supreme Court in favor of the plaintiff, ' entered in the office of the clerk of the county of New York on the 24th day of April, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Samuel Bonis and another, from an award of the State Industrial Commission, filed in the office of said Commission on the 19th day of January, 1917, and also from an award entered in the office of said Commission on the 11th day of April, 1917.

Appeal by the plaintiff, William E. Conley, 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 28th day of September, 1917, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Seventh District, in plaintiff’s favor and awarding judgment to the defendant.

<p>Appeal by the defendants, Dora Lichtenstein, individually and as administratrix, 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 30th day of October, 1917, directing the foreclosure of a mortgage and a "sale of the mortgaged premises upon the decision of the court after a trial at the New York Special Term.</p>

<p>Corporations — validity of incorporation as telegraph company cannot be collaterally attacked — validity of incorporation must be determined in suit to which People of State is party — municipal corporations — secondary franchise to use public streets for electric wires must be obtained from municipal authorities —• when no estoppel by permission of such use without secondary franchise.</p> <p>A corporation which received its certificate from the State in 1883 and was organized under the provisions of the acts of 1848 and 1853 as a telegraph company, thereby became incorporated as a telegraph company, and the question as to whether its incorporation was invalid in that, instead of conducting a telegraph business strictly speaking, it engaged in the business of furnishing protection against burglary by a system of electric alarm, etc., cannot be raised collaterally by the city of New York in an action brought by such corporation to enjoin the city from interfering with the plaintiff in the operation of its alleged franchise rights in said municipality. The validity of the incorporation can only be raised by the People of the State of New York, without whose presence before the court no adjudication on such issue can be made.</p> <p>It seems, that an action to test the validity of such incorporation must be brought by the People of the State by whom the franchise was granted if, in the judgment of the proper State officials, any cause for such action exists. Assuming, however, that the plaintiff was lawfully incorporated as a telegraph company under the acts aforesaid it did not thereby acquire any special franchise to operate its wires over or under the streets of the city of New York without the permission of the proper municipal authorities and, in addition to the franchise acquired from the State, it was also required to obtain from the city the special, or so-called secondary, franchise to use the city’s streets for the maintenance of its wires and fixtures. Moreover, the fact that the plaintiff for many years had” been allowed to maintain its wires over private buildings and was subsequently required by the city of New York to place its wires in subways thereafter constructed, did not operate to estop the city from asserting that the plaintiff has no right to use the city streets except as authorized by a municipal or secondary franchise to do so, obtained from the proper municipal authorities.</p> <p>It follows from the considerations aforesaid that the plaintiff’s suit to enjoin the city from interfering with the operation of. its lines was properly dismissed.</p>

Appeal by the State Commission of Prisons from an order of the Supreme Court, made at the Herkimer Special Term and entered in the office of the clerk of the county of Oneida on the 17th day of September, 1917, denying its application to compel the board of supervisors to place a lavatory and water closet in each cell of two jails of Oneida county.

Appeal by the relator, Edwin W. Eiske, 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 26th day of December, 1917, denying his application for a peremptory writ of mandamus directing the opening of the ballot box and canvassing the ballots of soldiers, sailors and marines cast in the third election district of the third ward of the city of Mount Vernon, N. Y., on December 18,…

Appeal in each proceeding by the relators, Edwin W. Fiske and Edward F. Brush, from parts of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk… Held: by his order entered December 26, 1917, that the McCarthy ballot was properly canvassed, but that the other two ballots should not have been counted for the office of mayor, and directed a mandamus to issue to such inspectors to make such correction.

Appeal by the defendant, Edward F. Brush, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of January, 1918, directing the inspectors of election of the third election district of the third ward of Mount Vernon to open the ballot box and take out all the ballots cast by soldiers, sailors and marines, as theretofore canvassed on December eighteenth, and to place same in…

Appeal by the defendant, Edward F. Brush, from an order -of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of January, 1918, holding, after recanvass of the vote in the first election district of the third ward of the city of Mount Vernon, N. Y., that the return by such inspectors of election had been correctly made, also that the figures therein had been properly incorporated by the…

Appeal by the relator, Edwin W. Fiske, 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 26th day of December, 1917, and also an appeal by the defendant, Edward F. Brush, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of January, 1918.

<p>Appeal by Edward J. Knapp from five orders of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 5th, 28th and 29th days of May, 1917, respectively.</p>

Appeal by the defendant, Minnie Kolb, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 23d day of October, 1917, appointing a receiver in a partition action. The plaintiff, the appellant and the defendant Rudolph Laber own, as tenants in common, a lot 22 by 100 feet on Park avenue in the borough of Brooklyn, on which is a two-story wooden building rented to two tenants for a monthly rental of $45.

Appeal by the defendants, Kissena Park Corporation 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 Queens on the 23d day of July, 1917, upon the decision of the court after a trial at the Queens County Special Term.

Appeal by the plaintiff, W. A. Case & Son Manufacturing Company, 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 15th day of May, 1917, dismissing the complaint in an action to foreclose a mechanic’s lien, upon the decision of the court after a trial at the Kings County Special Term.

Appeal by the defendant,' Childs 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 26th day of April, 1917, upon the decision of the court after a trial before the court without a jury.

Appeal by Enoch G. Megrue, as executor and trustee, 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 14th day of September, 1917, confirming the report of a referee.

Appeal by the plaintiff, Joseph F. Knight, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of May, 1917, granting defendant’s motion for judgment on the pleadings consisting of a complaint and the demurrer thereto.

Appeal by the defendants, Joseph Shenk and another, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, Part VI, entered in the office of the clerk of said court on the 29th day of May, 1916, convicting them of a -misdemeanor in maintaining a public nuisance, to wit, a disorderly house.

Appeal by the defendant, Peck & Mack Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of October, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of October, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Husband and wife — divorce — validity in this State of foreign decree of divorce — annulment of marriage.</p> <p>A decree of divorce granted by a Missouri court to the husband against the wife who was a resident of this State, will not be recognized as valid by our courts, where the first and only matrimonial domicile was in this State where the parties both resided at the time of their marriage, and the defendant did not subject herself to the jurisdiction of the Missouri court by appearing or answering in the action.</p> <p>Hence, such, a decree of divorce is no defense in an action to secure the annulment of a second marriage contracted by the defendant therein upon the ground that she had a former husband still living.</p>

Cross-appeals by the plaintiff, Emil Grossman Manufacturing Co., Inc., and by the defendant, New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1916, upon the verdict of a jury. The plaintiff further appeals from an order entered in said clerk’s office on the 20th day of June, 1916, denying its motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph Haber, 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 October, 1917, dismissing the complaint at the close of plaintiff’s case upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Alan Henry Haas, an infant, 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, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The American Fidelity Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1917, granting plaintiff’s motion for a reargument of its motion to set aside the verdict herein and for a new trial, and granting its motion to set aside the verdict and for a new trial.

Appeal by the defendant, State Board of Tax Commissioners, and by the intervener, the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of June, 1917, reducing the assessment for purposes of taxation of certain special franchises in the boroughs of Manhattan, The Bronx and Brooklyn owned by the relator.

Appeal by the plaintiff, Amvernette M. Crombie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of June, 1917, upon the verdict of a jury rendered by direction of the court dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, TJ. S. Expansion Bolt Co., 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 May, 1917, overruling a demurrer to the counterclaim set up in the answer.

Appeal by the defendant, Robert O. Wiener, 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 December, 1917, denying his motion to vacate or reduce a warrant of attachment herein.

<p>Appeal by the defendant, A. Eatkowsky, 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 10th day of December, 1917, granting plaintiff’s motion for an injunction pendente lite.</p>

<p>Appeal by the plaintiff, Pope Trading Corporation, Inc., 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 15th day of June, 1917, upon a dismissal of the complaint by direction of the court at the close of the case.</p>

Appeal by the defendants, James Gayley and another, from an order of the Supreme Court, made- at the New York Trial Term and entered in the office of the clerk of the county of New York on the 9th day of November, 1917, overruling demurrers to the amended complaint and denying defendants’ motion for a judgment on the pleadings.

Appeal by the defendants, Alfred B. Cooke 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 16th day of January, 1918, granting a motion for their examination before trial.

Appeal by the plaintiffs, Henry Heberton Good and others, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Richmond on the 19th day of July, 1912, upon the verdict of a jury rendered by direction of the court in an action for ejectment.

<p>Appeal by the plaintiff, Jennie Carr, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 23d day of November, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the. 6th day of November, 1916, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, George H. Fraser, 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 14th day of December, 1917, denying his application for an indefinite postponement of the trial on the ground of the absence in Germany of an alleged material witness.

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 28th day of October, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of November, 1916, denying defendant’s motion for r new trial made upon the minutes. -

Appeal by the plaintiff, James Gray, as trustee, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 3d day of May, 1916, upon the decision of the court after a trial at the Kings County Special Term. An appeal is also taken, as stated in the notice of appeal, from the decision of the court and from the findings of fact and conclusions of law.

Cross-appeals by the relator, William Roaphe, and by the defendants, James M. Carter, as superintendent, and others, from an order of the Supreme Court, made at the Westchester Speeial Term and entered in the office of the clerk of the county of Westchester on the 17th day of December, 1917.

Appeal by the defendants, Morris Rosenwasser 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 July, 1917, sustaining plaintiff’s demurrer to a separate defense.

Appeal by the defendant, Attilio De Simone, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, Part V, entered in the office of the clerk of said court on the 31st day of October, 1916, convicting the defendant of the crime of murder in the second degree.

Appeal by the plaintiff, Arthur A. Henning, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 28th day of November, 1917, denying his motion for a retaxation of costs. s j

Appeal by the defendant, The Liverpool and London and Globe Insurance Company of Liverpool, England, 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, granting plaintiff’s motion for a further bill of particulars.

Appeal by the petitioner, William G. Ihrig, 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 December, 1917, denying his motion for a peremptory writ of mandamus requiring the respondent to grant him an inspection of certain official records.

Appeal by Michael Streep 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 12th day of June, 1917, as resettled by an order entered in said clerk’s office on the 19th day of June, 1917, punishing the appellants severally for contempt of court, and also from an order made on the 22d day of March, 1917, referring to an official referee the question of taking testimony…

Cross-appeals by the plaintiffs, Morris Knobel and another, and by the defendant, London Guarantee and Accident Company, Limited, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of June, 1917, upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Wanda Minkowski, from an order, of the County Court of Kings county, entered in the office of the clerk of said county on the 3d day of October, 1917, as resettled by an order entered in said clerk’s office on the 12th day of November, 1917, denying said defendant’s motion to vacate an order appointing a receiver herein.

Appeal by Jane Ida Elizabeth Victoria Spencley Lloyd from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 31st day of July, 1917, overruling objections to the accounts herein.

<p>WiZZs—fraud and undue influence — sufficiency of evidence.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Nassau on the 1st day of May, 1916, in favor of the plaintiff, and also from an order entered in said clerk’s office on the 13th day of April, 1917, denying a motion for a new trial.

<p>Appeal from an order of the Supreme Court, entered in the Hamilton county clerk’s office October 30, 1916.</p>

<p>Appeal by the plaintiff from a judgment of the Supreme Court, entered in the Schenectady county clerk’s office on the 15th day of March, 1917.</p> <p>Judgment affirmed, with costs. All concurred, except Kellogg, P. J., dissenting, with memorandum, in which Lyon, J., concurred.</p>

<p>Workmen’s Compensation Law — junk dealer — storing bottles — hazardous employment.</p>

<p>Appeal from an award of the State Industrial Commission, entered in the office of the Commission August 3, 1917, and a continuation thereof.</p> <p>Award affirmed. All concurred, except Woodward, J., dissenting with opinion, in which Sewell, J., concurred.</p>

<p>Insurance — benevolent association — suspending member — effect of injunction.</p>

Appeal by Nettie Raught, one of the legatees named in the will of Roland D. Jones, deceased, from an order of the Supreme Court, entered in the New York county clerk’s office November 1, 1916, appointing trustees to execute a trust created by said will, and denying her motion for the appointment of a receiver.

<p>Negligence — finding contrary to evidence.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office October 24, 1917, granting the defendants’ motion for a bill of particulars in certain respects and as to others denying the same.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office November 20, 1917, granting a motion to resettle an order setting aside a verdict and ordering a new trial.</p>

<p> Negligence —facts found contrary to evidence. </p>

' Appeal from an award of the State Industrial Commission, entered on the 6th day of July, 1917. Award reversed and matter remitted to the Commission on the authority of Dorb v. Stearns & Co. (180 App. Div. 138). All concurred, except Kellogg, P. J., dissenting -in memorandum, in which Lyon, J., concurred.

Award reversed and matter remitted to Commission on the authority of Dorb v. Stearns & Co. (180 App. Div. 138). All concurred, except Kellogg, P. J., dissenting in memorandum, in which Lyon, J., concurred.

Order affirmed, with ten dollars costs and disbursements, with leave to the defendant to answer within twenty days on payment of said costs and of the costs awarded by the court below. All concurred, except Kellogg, P. J., dissenting in memorandum, in which Sewell, J., concurred.

<p>Appeal from a judgment and order of the Yates County Court, entered August 6, 1917, reversing a judgment of a justice of the peace in favor of the plaintiff in an action on replevin.</p>

<p>Appeal from a judgment of conviction of the County Court of Jefferson county, rendered December 18, 1915.</p>