Volume 182 — New York Appellate Division Reports

Appeal by the plaintiff, Boston 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 13th day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of July, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Negligence — liability of hospital for negligence of driver of ambulance resulting in collision with another motor vehicle injuring passenger — duty of driver of- ambulance to use reasonable care although having right of way — when negligence of driver of motor car not imputable to passenger — error of judgment.</p> <p>An incorporated hospital supported by voluntary contributions, by endowment, and by appropriation from the city of New York, and which received from said city an annual sum for the maintenance of motor ambulances which are required to be at the service of the .city in response to calls, but hires the drivers itself, is liable for the negligence of one of said drivers resulting in a collision with another motor car injuring a passenger therein.</p> <p>Where in an action for such negligence it appears that the car carrying the plaintiff was going west on the right-hand side of the street at twelve</p> <p>miles an hour and had passed beyond the westerly curb of the intersection of said street with an avenue when the ambulance traveling on the avenue at the rate of thirty to thirty-five miles an hour struck the ear at a point behind its center; that the ambulance was traveling in the center of the avenue but as it approached the .other car its driver diverted his course from the center towards the west and thus came into collision; that there was no apparent necessity for the diversion and that if defendant’s driver had continued on his course there would have been room for passage between the' rear of the other car and the easterly curve of the avenue, said facts are sufficient to sustain a verdict against the defendant.</p> <p>A municipal ordinance giving vehicles proceeding in a northerly course the right of way and the rights in the street of the driver of a motor ambulance in the service of the city, do not relieve said driver from .the obligation of reasonable care.</p> <p>Where a muse in a public institution has been furnished by her employer with a motor car hired with its driver from a public garage to carry crippled children to'their homes, negligence of the driver is not imputable to her.</p> <p>A charge of negligence cannot be avoided by mere proof that one of the parties erred in judgment. The exercise of judgment to be considered must have been made Under conditions creating an emergency.</p> <p>If one’s negligence brought about in whole or in part- the condition constituting an emergency, he cannot excuse a negligent act in the emergency by the plea that said act was an error of judgment.</p>

Appeal by the defendant, Joseph Paggello, from a judgment of the Supreme Court, Kings county, rendered against him on the 6th day of June, 1917, convicting him of the crime of grand larceny in the first degree.

Appeal by the defendant, Bowling Green Storage and Van Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 21st day of February, 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, Central Electrical Supply Com- • pany, 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 5th day of July, 1916, upon the decision of the court after a trial at the New York Special Term, as adjudges that the assignment from the defendant George E. Ryan to the defendant Central Electrical Supply Company, dated May 26, 1914, is void, and from so much thereof…

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 Kings on the 20th day of March, 1916, as resettled by an order entered in said clerk’s office on the 8th day of April, 1916. The judgment was entered upon the decision of the court after a trial at the Kings County Special Term after a certain question of fact had been submitted to a referee.

Cross-appeals by Percival S. Jones, as executor, and Lulu Belle Housman, from a decree of the Surrogate’s Court of the county of Richmond, entered' in the office of said Surrogate’s Court on the 9th day of April, 1917, which adjudged that the decedent, Jacob I. Housman, had made a gift inter vivos to the respondent, Lulu Belle Housman, his wife, of certain articles of personal property therein described, and directed the said respondent to deliver to the said petitioner, as.…

<p>Decedent’s estate — suit to set aside improvident sale of assets — creditors of estate not proper parties defendant — equity — power to discharge defendants as parties.</p> <p>Where on an accounting by administrators it was determined that their accounts should be surcharged because a sale of property belonging to the estate had been made for an inadequate price and they subsequently sue in equity to set aside the sale, creditors of the estate who contested the administrators’ accounts are not proper parties defendant and on demurrer are entitled to a dismissal of the complaint as to them.</p> <p>The defendants as creditors were not necessary parties, unless upon a final accounting, where no relief against them is demanded.</p> <p>A court of equity under the circumstances had discretion to discharge said creditors as parties defendant.</p>

<p>Appeal by the defendants, Ernest W. Zentgraf 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 Dutchess on the 21st day of November, 1917, upon the decision of the court after a trial before the court, a jury having been waived.</p> <p>The judgment decreed that plaintiff recover of the defendants the sum of $73,954.21.</p> <p>On the 1st day of April, 1905, Charles F. Zentgraf and Louis Dejonge, Jr., both since deceased, were copartners in a manufacturing business, and had partnership property of the value of $1,200,000. On that day the said partners, together with defendants Alfred Dejonge and Ernest W. Zentgraf, and the plaintiff, Max Emil Dejonge, entered into a contract whereby it was agreed that a corporation under the name of Louis Dejonge & Company, with a capital of $200,000, divided into 2,000 shares of the par value of $100 each, should be organized under the laws of the State of New York; that the parties to the contract should subscribe to the capital stock in agreed allotments; that the assets of the copartnership should be transferred to the corporation; and in consideration therefor the company should issue to the signers its full-paid capital stock to the extent of $200,000, and promissory notes aggregating in amount $1,000,000. Of these notes, some of them, to the amount of $200,000, should bear interest at five per cent per annum, and the remaining, in amount $800,000, should bear no interest; that the parties to the contract should be elected to offices in the company, to which specified salaries should be attached; but that, on any of them ceasing "to be an officer his salary should cease, and his non-interest-bearing notes should thereafter bear interest at the rate of five per cent per annum and be payable in installments running over five or ten years; that none of the parties should pledge any of his shares of stock, nor sell without first giving to the other parties an option for a year within which to buy it at its book value, and that like provisions should govern the sale of the stock of any of the parties who should die. The contract contained the following clause, out of which this litigation has arisen: ; “ The annual meeting of the corporation shall be fixed by the By-Laws not later than May 1st of each year, and shall so remain, unless otherwise provided for by amend-</p> <p>ment to such By-Laws. Prior to such annual meeting the f books shall be closed as of the previous January 1st, and the profits divided (in proportion to the respective holding of stock), either in the form of dividends or in such other form as, at the time, may seem advisable.”</p> <p>The company was incorporated, and is one of the defendants in this action; the partnership property was duly conveyed and assigned to it, the stock and notes were issued pursuant to the contract, and the company has ever since been in successful operation. It' has paid for the past five years dividends of twenty per cent per annum on its capital stock, and now has an earned surplus of $1,182,261.37 invested in great part in a new plant and property used in carrying on the business. The original partners have died, a portion of the stock held by them has been transferred to legatees under the will of Charles F. Zentgraf, and a portion is now held by their executors, who are parties defendant to this action.</p> <p>The plaintiff, a party to the original contract, being the owner of 125 shares of the capital stock, has brought this action to recover a proportionate .share of the accumulated profits, and has been awarded judgment therefor against all the defendants, not only the corporation but the surviving signers to the contract (except plaintiff) and the representatives of the estate of those deceased. The defendants have appealed to this court.</p>

<p>Innkeeper — tort — visit of man to room of female guest contrary to hotel regulation — inquiry by manager as to status of parties — facts not establishing cause of action for injury to feelings and reputation — excessive verdict — reasonable rules of innkeeper.</p> <p>A woman who registered as a guest at a hotel is not entitled to recover substantial damages for alleged shock to her nerves and humiliation because the manager of the hotel, on learning that she received a man in her room contrary to the rules of the establishment, interrogated the plaintiff and her visitor and discovered the latter to be her husband if it appears that the husband went to the plaintiff’s room without informing the hotel authorities of their marital status and the plaintiff, after the explanation, was allowed to continue as a guest.</p> <p>Evidence examined, and held, that a verdict for the plaintiff for $2,500 was excessive and contrary to the evidence.</p> <p>Under the ciremnstanees the defendant’s employees had reasonable and probable cause for interrogating the plaintiff and her husband.</p> <p>The defendant was not put upon notice of the fact that the plaintiff and her husband were man and wife by the fact that the husband, who registered at the hotel after his wife and was assigned to a different room, registered as “ Robert C. Hurd ” while the plaintiff merely registered as “ Mrs. Hurd.”</p> <p>The rule of an innkeeper that men shall not visit the room of a female guest without permission is reasonable and designed to protect the reputation of the hotel and the rights of other guests.</p> <p>Mills and Rich, JJ., dissented.</p>

<p>Appeal by the plaintiff, Otto Metz, from an- order of the Supreme Court, made at the Queens County Trial Term and entered in the office of the clerk of the county of Queens on the 23d day of May, 1917, granting defendant’s motion to set aside a verdict in plaintiff’s favor for $10,850 and granting a new trial.</p> <p>Appeal by the defendant from so much of said order as denies its motion to dismiss the complaint made at the close of the trial.</p>

Cross-appeals by the plaintiff, Helena Day Snyder, and by the defendants, Louis J. Snyder and Samuel F. Engs, 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 28th day of June, 1917, upon the decision of the court after a trial at the Kings County Special Term. The judgment construed the last will and testament of Samuel F. Engs, deceased.

<p>Real property — contract for sale — description of property by metes and bounds — specific performance — inability of vendor to give good title.</p> <p>A vendor of a corner lot, who has agreed to sell the same by a contract describing the property by metes and bounds beginning at a corner formed by the intersection of two streets, is not entitled to a specific performance of the contract, where there is no evidence to show that he has title to a certain portion of the lot which the city of New York has authority, which it has not exercised, to take by condemnation for street purposes.</p>

<p>Appeal by the defendant, J. Herbert Hutchinson, 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, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s.office on the</p> <p>25th day of June, 1917, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, New York, Ontario and Western Railway Company, 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 8th day of January, 1918, denying defendant’s motion to change the place of trial from Bronx county to Sullivan county on the ground of the convenience of witnesses.

<p>Appeal by the defendants, Louis Lichtenhein 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 November, 1917, denying their motion to overrule a demurrer to certain defenses set up in the answer and sustaining said demurrer.</p>

<p>Contract —■ rescission — fraud — remedies of party defrauded upon rescission — care of property — damages — acts inconsistent with rescission — pleading — counterclaim for rescission.</p> <p>A contract induced by false and fraudulent representations is not void, bub voidable.</p> <p>A defrauded party upon discovery of. the fraud may rescind the contract by promptly tendering back all that he has received under it, and on the rescission if the property remains in his possession, he holds it merely as a bailee and must not exercise any rights of ownership or dominion over it that will be inconsistent with a disaffirmance of the transaction.</p> <p>The party who has rescinded a contract for fraud may pursue one of two remedies —• bring his action at law upon the rescission to recover what he has paid, or defend an action brought against him upon the contract, setting forth the fraud as a defense. He may bring his action in equity for a rescission where the tender may be made by an offer in the complaint, which offer must be kept good at the trial, and the court will adjust the relief as equity requires, upon the facts established. Or he may affirm the contract and sue for bis damages, the measure of which will be the difference between the value of- the subject-matter of the contract as represented and its actual value. If sued upon the contract he may counterclaim his damages.</p> <p>Unless a party promptly elects to rescind upon the discovery of the fraud as evidenced by a tender or an equitable action, he will be held to have affirmed the contract. Hence, the defense of fraud and a counterclaim for a rescission at law are predicated upon a rescission evidenced by a disaffirmance.</p> <p>A person may not retain the benefits of a contract and defend against payment. His remedy, if he retains the benefits, is to counterclaim for his damages.</p> <p>Where, in an action upon a promissory note given for the balance of the purchase price of corporate stock, the defendant alleged as a defense that the note was obtained from him by the plaintiff by means of certain false and fraudulent representations inducing his purchase of the stock, and as a counterclaim alleged a rescission of the contract, the rescission is ineffective, it appearing that the defendant retained the emoluments accompanying the possession of the stock and actively participated in the management of the business of the corporation for ten months after the discovery of the fraud and the tender of the stock, and also made</p> <p>many efforts to sell said stock, after the plaintiff refused to accept his tender.</p> <p>Defendant was not entitled to recover damages for the fraud under his counterclaim for rescission.</p>

<p>Appeal by the defendant, American Separator Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office bf the clerk of the county of Chenango on the 11th day of August, 1917, upon the decision of the court, a jury having been waived.</p>

<p>Appeal by the defendants, James P. Gillen and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 7th day of September, 1917.</p>

<p>Appeal by The Ulster and Delaware Railroad Company from an order of the Public Service Commission of the State of New York, Second District, entered in the office of said Commission on the 17th day of April, 1917, wherein it was determined that the final settlement in this proceeding should be made upon the basis of interest computation to January 1, 1917.</p>

<p>Appeal by the plaintiff, Annie L. Ingham, 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 Chenango on the 20th 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 the order of nonsuit.</p>

<p>Mortgage — foreclosure — consent to application for judgment to justice of Supreme Court out of court under section 1214 of Code of Civil Procedure.</p> <p>Where in an action to foreclose a mortgage, the summons and complaint were duly served upon all of the defendants personally, and all but one defaulted in appearance, and that one appeared by his attorneys but defaulted in answering, and thereafter gave the plaintiff’s attorney a written waiver upon the back of the notice of appearance that “ notice of application for reference and judgment of foreclosure and sale is</p> <p>hereby waived ” said waiver constituted the consent required by section 1214 of the Code of Civil Procedure to make the application for judgment to a justice of the Supreme Court out of court.</p>

Appeal by the plaintiff, The People of the State of New York, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 26th day of March, 1917, sustaining a demurrer to the complaint and adjudging that the same does not state facts sufficient to constitute a cause of action.

Appeal by the defendant, New Baltimore Mutual Insurance Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 24th day of November, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of December, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, William L. Holahan, and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 17th day of August, 1917.</p>

<p>Appeal by the plaintiffs, Federal Heating Company, Inc., and others, from part of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 29th day of March, 1917, upon the decision of the court after a trial at the Erie Special Term.</p>

Appeal by the defendant, Ludlum Steel 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 25th day of October, 1917, upon the verdict of a jury for $5,000, 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.

Appeal by the defendant in Case No. 26, Hudson Navigation Company, from an order of the State Industrial Commission, dated on the 27th day of July, 1917, which purported to vacate an order of said Commission dated June 14, 1917, setting aside an award of the Commission made on the 28th day of June, 1916.

<p>Appeal by the defendant, Pierce-Arrow Motor Car 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 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.</p>

<p>Appeal by Benedict F. Haberle and others from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 5th day of December, 1917, permitting the petitioner to discontinue and abandon this proceeding, and denying their motion to compel said petitioner to file the commissioners’ report and the evidence herein.</p>

<p>Will — construction — trust — death of beneficiaries prior to life tenant — disposition of interest accruing during life estate.</p> <p>A testator who had been "contributing $10,000 yearly for several ^years toward the support of his stepmother, selected five out of his eight brothers and sisters as his beneficiaries for the reason that the others were “ amply provided for,” and gave to each of his three sisters $200,000 and then provided share and share alike for his two brothers, $200,000 and capital stock and bonds of the value of $77,000. But out of the gift of the $200,000 to the brothers he made a provision for his stepmother for her life, committing the property for that purpose to trustees who were to pay the income to her and principal “ together with all interest and income earned and accrued and unpaid ” to his brothers. The return on the $200,000 at the usual rate of five per cent just equaled the amount which the testator had for some years proyided his stepmother. The brothers died before the stepmother.</p> <p>Held, that it was the testator’s intention to give his brothers the $200,000 share and share alike, whether they did or did not survive the life tenant, but the direction that interest accruing during the life estate should be paid the brothers was invalid and it should be paid to the stepmother’s representatives.</p> <p>Rich and Blackmar, JJ., dissented on the question of interest; Putnam, J., dissented, with opinion, on the question of the vesting of the principal.</p>

<p>' Reargument of an appeal by the plaintiff, Patrick J. Lee, 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 March, 1917, upon the dismissal of the complaint by direction of the court after a verdict had been rendered in plaintiff’s favor.</p> <p>An appeal is also taken from an order entered in said clerk’s, office on the same day setting a side the verdict of the jury in plaintiff’s favor in the sum of $5,000.</p>

Appeal by the defendants, Franklin Chamberlin and another, from part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 21st day of September, 1917, upon the decision of the court after a trial at the Queens County Special Term.

Appeal by the plaintiff, The People of the State 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 1st day of March, 1917, denying its motion for judgment on the pleadings, consisting of an amended complaint and the demurrer thereto, and also from an order entered in said clerk’s office on the same day granting defendant’s motion for judgment on the pleadings and…

Appeal by the defendants, Valentine Everit Macy and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 27th day of September, 1917, upon the report of a referee appointed to hear and determine the' issues.

<p>Husband and wife — separation — defense — prior separation</p> <p>agreement.</p> <p>Where there is a valid, existing separation agreement between a husband and wife, under which provision is made for her support, she.has no cause of action against the husband for separation and alimony in excess of the amount provided for in the agreement.</p>

<p>Petitions by Louise Stilwell Ackerman and by John S. Hoyt and others, for a modification of an order of this court entered herein on the 19th day of November, 1915.</p>

Appeal by the defendant, Leonard Landes, 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 November, 1917, denying defendant’s motion for judgment on the pleadings consisting of an amended complaint and answer.

<p>Appeal by the plaintiff, Warner-Quinlan Asphalt 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 17th day of December, 1917, denying plaintiff’s motion for a further bill of particulars as to defendant’s counterclaim.</p>

<p>Appeal by the defendant, Wilson M. Shear, 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 January, 1917, upon the decision of the court after; a trial at the New York Special Term, with notice of an inten- ■ tion to bring up for review the interlocutory judgment entered in said clerk’s office on the 8th day of November, 1916.</p>

Appeal by the plaintiff, Elise Cutrer McCallum, as executrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1917, granting defendant’s motion for an open commission to take depositions of witnesses outside the State.

Appeal by the plaintiff, Elise Cutrer McCallum, 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 7th day of December, 1917, vacating and setting aside a prior order precluding defendant from offering evidence and opening its default in serving a bill of particulars.

Appeal by the plaintiffs, Maimie F. Cohn and others, as executors and trustees, 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 January, 1918, vacating an order appointing a receiver, terminating the ■ receivership, and directing the receiver to account.

Appeal by Jacob Volk from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of July, 1917, granting the motion of the Attorney-General of the State of New York to vacate part and resettle another part of a final order entered in this proceeding on the 27th day of February, 1917.

Cross-appeals • by the plaintiff, Montgomery Bank and Trust Company, and by the defendants, Richard W. Jones, Jr., 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 2d day of June, 1915, upon the verdict of a jury, and also from an order dated the 29th day of April, 1915, as resettled by an order entered in said clerk’s office on the 11th day of May, 1915, denying the motion of…

<p>Appeal by the defendant, The New York, New Haven and Hartford 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 Westchester on the 10th day of December, 1915, upon the decision of the court after a trial before the court without a jury.</p> <p>The judgment decreed that certain stone abutments erected by the defendant within the lines of the public highway now known as Columbus avenue in the city of Mount Vernon, where the line of the defendant’s railroad crosses the aforesaid avenue, are a continuing trespass and a nuisance, and directed that said abutments be removed by the defendant so as to leave a clear space between the faces thereof of at least three rods in width.</p>

Appeal by the defendant, National Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 21st day of May, 1917, upon the verdict of a jury.

<p>Insurance — right of assignee of life insurance policy to borrow thereon from insurer.</p> <p>Provisions of policies of life insurance examined, and held, that the words “ insured or owner of the policy,” as used in the section of the contract relating to the borrowing of money thereon, authorize the assignee of all values and rights of the assured to borrow money from the insurer on the policies to the amount stipulated therein. Such words do not refer to the beneficiaries who are expressly prohibited from borrowing “ at any time.”</p> <p>Putnam, J., and Jenks, P. J., dissented, with opinion."</p>

Appeal by Julius E. Hall, as administrator, from a decree' of the Surrogate’s Court of the county of Delaware, entered in the office of said Surrogate’s Court on the 23d day of October, 1916, settling the accounts herein.

<p>Workmen’s Compensation Law — loss of first and injury to second phalanx not loss of entire thumb.</p> <p>Where a claimant has had the first or distal phalanx of his thumb amputated and has suffered a slight injury to the second or proximal phalanx, but not sufficient to lessen the use thereof, he is only entitled to an award for the loss of one-half a thumb.</p> <p>In order to entitle such claimant to an award for the loss of the entire ' thumb under subdivision 3 of section 15 of the Workmen’s Compensation Law, providing that “ the loss of more than one phalange shall be considered as the loss of the entire thumb or finger,” it must appear that he has lost a substantial portion of the second phalanx so as to materially lessen his use thereof.</p>

Appeal by the defendant, Lehigh Portland Cement 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 27th day of April, 1917, upon the verdict of a jury for $10,500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes. The action was brought under the Pennsylvania Employers’ Liability Act (Penn.

Appeal by the defendant, Salvatore Firemi, from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 16th day of November, 1916, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, Philadelphia and Reading Coal and Iron Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of December, 1916, upon the verdict of a jury for $20,000 and also from orders entered in said clerk’s office on the 7th and 18th days of December, 1916, respectively, denying defendant’s motions to set aside the verdict and for a new trial.

<p>Appeal by Charles Bies and another from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 26th day of July, 1917, dismissing the petition in this proceeding.</p>

Appeal by the defendant, Harry Fisher, from a judgment of the Court of General Sessions of the Peace, city and county of New York, rendered against him on the 16th day of October, 1916, convicting him of the crime of grand larceny in the first degree.

<p>Practice — discovery — action by customer against stockbrokers — right to inspection of books and papers in order to frame complaint — examination of defendants before trial — subpoena duces tecum.</p> <p>An assignee of a claim against a firm of stockbrokers suing to recover an amount deposited as margin and damages for the defendant’s failure to deliver stock deposited "with them as collateral, upon the ground that the defendants had not carried out the orders of the plaintiff’s assignor and had furnished false statements, is not entitled to an inspec-</p> <p>tion of substantially all of the defendant’s books and papers, including those in current use, in order to enable him to frame bis complaint, where it is not clear that such books and papers will show anything more than the accounts which had been rendered by the brokers to the plaintiff’s assignor, and the only manner in which said accounts are impeached is by the affidavit of a curb broker.</p> <p>If the plaintiff is unable to frame his complaint on the information in his possession, he may obtain an order for the examination of the brokers and may then subpoena them to produce their books and papers relating to the assignor’s account, to enable them to testify with respect thereto, and then, if an inspection should thereafter become necessary, it .could be limited to the particular parts of the defendant’s books and papers relating to the assignor’s account.</p>

<p>Appeal by the defendant, the Scourene Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of June, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiffs, C. Eugene Seager, Jr., and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 23d day of May, 1917, upon a dismissal of the complaint at the opening by direction of the court, the defendants having then moved for judgment on the pleadings on the ground that the complaint did not state facts sufficient to constitute a cause of action, with notice of an intention to bring up for review the order dismissing the complaint entered in said clerk’s office on the 21st day of May, 1917, as amended by an order entered on the 2d day of June, 1917.</p>

Appeal by the defendants, Bessie Fear and others, 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 the 9th day of November, 1917, granting plaintiffs’ motion for judgment on the pleadings and directing a reference. ¡

<p>Appeal by Regina Bussman, as administratrix de bonis non, from a decree of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 21st day of April, 1917. „</p>

<p>Municipal corporations—-city of Fulton — liability for injuries caused by accumulated ice and snow — interference by city with natural flow of drainage waters — when notice to city not prerequisite to action — nuisance created by city in public streets.</p> <p>Since it has been held-by the Appellate Division that a provision of a city charter, similar to that contained in the charter of the city of Fulton, which provides in substance that no action for damages sustained in</p> <p>consequence of the existence of snow and ice upon sidewalks and streets can be maintained unless written notice relating to the particular streets was actually given to the board of public works and there was a failure to cause such snow or ice to be removed, etc., is inapplicable in a ease where the city itself, through its own employees, creates the dangerous condition which causes the accident, it was proper for the trial court to submit the liability of said city to the jury where it clearly appeals that the city, by its pavements and curbs, had worked a diversion of surface waters to a certain street where they froze causing the injury to the plaintiff, it further appearing that the same conditio.n had existed at the same place during two or three previous winters.</p> <p>Although the city might not be liable if the drainage of ordinary surface waters froze on said street, it may be held liable for gathering together the surface waters of a park and discharging them upon said street where they would not naturally flow. In the latter ease it is the duty of the city to see that such drainage does not produce a nuisance in the street dangerous to pedestrians.</p> <p>Under the circumstances the city cannot escape liability because during a week the weather conditions made said waters alternately freeze and thaw on said street, for the city brought upon the street waters which did not naturally belong there.</p>

Appeal by the defendant, Ella M. Costello, from a judgment of the County Court of Erie county, rendered against her on the 15th day of December, 1916, affirming a judgment of the City Court of Buffalo, rendered on the 27th day of July, 1916, convicting her of a violation of section 1146 of the Penal Law.

Motion by the defendants, Frank J. Moore and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the rendition of a verdict in plaintiff’s favor by direction of the court upon a trial before the court and a jury at the Monroe Trial Term in April, 1917.

<p>Workmen’s Compensation Law — injury to person doing clerical work for employer conducting hazardous business — remedy under statute is exclusive.</p> <p>Where an employer makes photographic cameras and supplies, which business is classed as hazardous by the Workmen’s Compensation Law, an employee working in the cost and payroll department of the establishment and whose work was largely clerical is engaged in a hazardous employment within the meaning of the statute although she did no work which directly entered into the construction of cameras and supplies. Hence, her remedy for injuries received by the collapse of a chair upon which she was sitting' in her employer’s office is under the Workmen’s Compensation Law and she cannot maintain an action to recover damages.</p>

Appeal by Charles K. Phipard, as executor, etc., 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 19th day of April, 1916, settling the accounts herein.

Appeal by the defendant, Jacob Rozinski, 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 31st day of March, 1917, upon the decision of the court after a trial at the New York Special Term.

<p>Will—trust—unlawful suspension of power of alienation — invalid trust provision — Code of Civil Procedure, section 2748, construed — allowances to special guardians — discretion of surrogate.</p> <p>Where a testatrix left one-half of her estate to her executor in trust to pay certain sums from the income to three friends for their lives, and provided that the principal should be held by her executor so long as any of the three friends should be Uving, and that upon the death of all three it should become a part of a trust fund created for the benefit o£ her son, and it appeared that the other one-half of her estate had been placed in trust for the life of her son for his benefit with' remainder at his death to his issue and descendants, if any, and if he shoxdd leave none then to certain designated persons, the gifts to the friends are invalid as unlawfully suspending the power of alienation. The provision cannot be construed as creating three separate funds, one for the -benefit of each so as to make the disposition valid.</p> <p>There remains, however, a valid trust for the life of the son of the testatrix,</p> <p>L whieh will include the whole residuary estate.</p> <p>Section 2748 of the Code of Civil Procedure, added by chapter 443 of the Laws of 1914, should be so construed as to limit allowances to special guardians payable out of the estate, either in whole or in part to cases in which the services of the guardian are shown to be of value not only to the immediate ward or wards, but also to the owners of the estate or fund out of whose pockets the allowance is to be taken.</p> <p>Since the discretion vested in the surrogate in regard to allowances to special guardians is extensive, its exercise should be correspondingly conservative, and the amounts to be awarded should depend at least as much upon the value of the services rendered as upon the size of the estate.</p> <p>Whatever be the extent of the discretion thus vested in the first instance in the surrogate, it is a legal and not an arbitrary discretion and is subject to review.</p> <p>Allowance to the special guardian for the infant petitioner, in a proceeding brought in the Surrogate’s Court under section 2615 of the Code of Civil Procedure to obtain an adjudication as to the validity of a will, approved.</p> <p>Infants,. holding vested remainders subject to be divested if the life beneficiary should leave issue, have such a present interest in the estate as to justify the granting of a reasonable allowance to their special guardian. Allowance to such a guardian held to be unreasonably large under the circumstances.</p>

Appeal by the defendant, George M. Ehrgott, 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 28th day of May, 1917, overruling a demurrer •to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

Appeal by the defendant, The Preferred Accident Insurance Company of New York, 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 10th day of May, 1917, setting aside the verdict of a jury in defendant’s favor and granting plaintiff’s motion for a new trial and further denying defendant’s motions to dismiss the complaint made at the close of plaintiff’s case and at the close of the…

<p>Decedent’s estate — will — separation agreement “wholly inconsistent ” with provisions of prior will.</p> <p>A separation agreement between a husband and wife, by which on the payment of a large consideration she bound herself to relinquish all claims upon him, during his life and upon his estate after his death, and agreed to execute all necessary further assurances reasonably required to make good her promises, and further expressly covenanted with her husband to give him, the right to make a will disposing of his property, and that his estate might be disposed of as if she had died during his lifetime, and in pursuance of which she joined with him, in conveying his real estate to a corporation in order to effectuate said agreement, is “ wholly inconsistent ” with the provisions of a prior will devising the residuary estate to the wife in lieu of dower, and, therefore, constitutes an express revocation under section 40 of the Decedent Estate Law.</p>

<p>Railroads — right to use streets — granting of franchises —“ public use”—“public convenience and a necessity”—order of Public Service Commission granting certificate of “ public convenience and a necessity ” not subject to collateral attack —“ public use ” of street by freight terminal railroad — application of chapter 10 of the Laws of 1860 — Railroad Law, section 173, requiring sale of franchises at public auction not applicable to franchise granted under Greater New York charter — right of abutting owner not owning fee of street — injunction — when use of street by freight terminal railroad does not constitute a taking of easements.</p> <p>The right to use the streets as highways is in the public at large and is controlled by the Legislature subject to the limitation under sections 18 and 20 of article 3 of the Constitution.</p> <p>Since the amendment of the Constitution adopted November 3, 1874, railroad franchises to occupy public streets may be granted only pursuant to general laws, and the construction or operation of a street railroad</p> <p>cannot be authorized except with the consent of the local authorities and the owners of oné-half in value of the abutting property, or, if such property owners’ consents be not given, the determination of the court that such railroad ought to be constructed and operated.</p> <p>Although the terms “ public use ” and “ public convenience and a necessity ” are not identical in meaning, a “ public use ” may not be a “ public convenience and a necessity,” but it cannot be said that the operation of a railroad is a “ public convenience and a necessity ” unless it is a “ public use.”</p> <p>The question whether a use is a public one is judicial.</p> <p>A determination of the Public Service Commission in granting a certificate of “ public convenience and a necessity ” that a use is public is final, at least as against collateral attack.</p> <p>When a railroad company occupies a city street in a locality devoted almost exclusively to factories by a siding or spur track constituting an integral part of the transportation system of the country over which freight is transported to other carriers, the freight becomes part of the interstate and intrastate commerce of the country, and the use is public, although said track is now connected with only one private factory. Chapter 10 of the Laws of 1860, preventing the organization of railroad companies under any law except, those passed subsequently thereto, applies only to the territory of the city of New York as it was at that time, and, hence, does not prevent the organization of a railroad under the General Railroad Law of 1890 in the city of Brooklyn now constituting a part of Greater New York.</p> <p>The provisions of section 173 of the Railroad Law, that franchises shall be sold at public auction, are not applicable to a franchise granted under section 74 of the Greater New York charter.</p> <p>The laying of the rails of a freight terminal railroad on the surface of the - street, without change of grade, and the reasonable use thereof do not constitute a taking of easements in the street so as to entitle an abutting owner, who does not own the fee of the street in front of his premises, to an injunction restraining the operation of the railroad until compensation is made.</p>

Appeal by the defendants, Morris H. Rothschild 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 26th day of July, 1916, upon the report of a referee appointed to hear and determine the issues. The judgment among other things dismissed the defendants’ counterclaims.

Appeal by the defendants, Herbert S. Sisson, as State Commissioner of Excise, and another, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of November, 1917, directing defendants to issue a liquor tax certificate to the relator. (See 101 Mise. Rep. 485.)

Appeal by the defendant, The Town of Frankfort, from an order of the Supreme Court, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on the 5th day of October, 1917, denying defendant’s motion for judgment on the pleadings, consisting of a complaint, answer and reply.

Appeal by the defendants, John B. Rose Company and another, from so much of an award of the State Industrial Commission, entered in the office of said Commission on the 13th day of August, 1917, as grants compensation to the claimant as a dependent granddaughter of the deceased.

Appeal by the defendants, The Sag Harbor Brick Works and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 10th day of October, 1917.

Appeal by the defendants, Broadway Brewing and Malting Company and another, from an award of the State Industrial Commission, made on the 19th day of October, 1917. An award was made herein on the 13th day of August, 1917, but the case was reopened and the final award was made October 19, 1917, to the same .effect, as the award originally entered.

<p>Workmen’s Compensation Law — loss of use of eye.</p> <p>A claimant, whose injured eye is rendered normal by the use of a glass, but can only be used by closing and not using the other eye, has not sustained a permanent loss of the use of an eye, within the meaning of subdivision 3 of section 15 of the Workmen’s Compensation Law. Woodward arid Henry T. Kellogg, JJ., dissented.</p>

Appeal by the defendants, Buffalo Wire Works Company, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 18th day of July, 1917.

Appeal by the defendant, The New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 25th day of April, 1917, upon the verdict of a jury for $5,000, 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.

Appeal by the defendant, Byan-Parker Construction 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 19th day of January, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of February, 1916, denying defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Mary W. Haynes, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after defendant’s motion for a nonsuit and to dismiss the complaint made at the close of plaintiff’s case had been granted by the trial justice upon a trial before the court and a jury at the Schuyler Trial Term in December, 1916.

Appeal by the plaintiff, Catharine M. Amsden, from an order of the Supreme Court, made at the Rochester Special Term and entered in the office of the clerk of.the county of Monroe on the 18th day of December, 1917, referring the issues herein to a referee to hear, try and determine.

<p>Partnership — action must be brought in names of individual partners — action in partnership name — failure to ask amendment at trial.</p> <p>An action brought by a partnership must be prosecuted in the individual names of the partners; the suit cannot be brought in the partnership name.</p> <p>Where a partnership sues in its partnership name the defect may be cured by amendment at any time during trial, but if such amendment is not asked for the defect requires a reversal of the judgment for the plaintiff.</p>

<p>Tax — transfer tax — value of stock of construction company — appraisal of value of real estate — decree fixing tax reversed and report remitted for correction — appeal — notice.</p> <p>Notice of appeal construed and criticized.</p> <p>Appeal from an order of the Surrogate’s Court fixing a transfer tax upon the property of a decedent. The tax involved the appraisal of - certain shares of the capital stock of a corporation which had formerly engaged in the contracting business, but which has discontinued the same, its assets consisting principally of New York real estate. The value of the decedent’s interest in the corporation in part depended upon the value of a note of the corporation held by his estate. Evidence examined, and held, that the determination of the surrogate was contrary to the weight of evidence and that the decree should be reversed and the appraiser’s report remitted to him, for correction.</p> <p>Where it is necessary to appraise the property of a decedent in a corporation owning real estate the real estate should be appraised at its market value at the time of the decedent’s death, taking into consideration the question as to whether there is an available market for such property under the existing conditions.</p> <p>A price which may be realized at a forced sale of lands is not a fair indication of their market value.</p>

Appeal by the defendant, .¿Etna Life Insurance 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 3d day of May, 1917, upon the verdict of a jury rendered by direction of the court, both sides having moved for a direction of a verdict after the jury had answered a specific question of fact submitted to them.

Appeal by the defendant, New York Railways Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1917, upon the verdict of a jury for $20,000, 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.

Appeal by the defendant, A. „H. Ginzberg-Gordon Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1918, granting plaintiff’s motion to make the amended answer more definite and certain.

<p>False imprisonment — theory of action adopted at trial — erroneous charge — probable cause — proof in mitigation of damages — arrest without warrant for misdemeanor.</p> <p>Where an action was treated by the parties at trial as one for false imprisonment and not for malicious prosecution the Appellate Division will not dispose of the appeal as though the action was one for malicious prosecution.</p> <p>In an action brought solely for false arrest and imprisonment it was error for the court to charge that the plaintiff in order to recover must establish that the arrest was without probable cause. The law is that, the plaintiff having made out a ease of false arrest, it is for the defendant to show, if he can, that he had probable cause, not for the purpose of defeating the action, but in mitigation of damages.</p> <p>The o :/ justification for an arrest without a warrant in the case of a miscL. eanor, either by a police officer or by a citizen, who stand upon the same footing, is that the misdemeanor was actually committed in his presence. Hence, where a plaintiff proves that although he committed no offense he was arrested without a warrant and imprisoned for an alleged misdemeanor, he established a cause of action.</p> <p>Probable cause for believing that the misdemeanor was committed is not justification for arrest or imprisonment unless the one arrested committed . the offense. The probable cause goes only to mitigate damages.</p>

<p>Appeal by the plaintiff, Montague Mailing Machinery Company, from a judgment of the Supreme Court in favor</p> <p>of the respondent, entered in the office of the clerk of the county of New York on the 9th day of March, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case as said judgment was amended by an order entered in said clerk’s office on the 9th day of April, 1917.</p> <p>An appeal is also taken from the order entered in said clerk’s office on the 18th day of December, 1916, denying plaintiff’s motion to set aside the direction dismissing the complaint and for a new trial.</p>

<p>Pleading — action for goods sold and delivered —• answer — allegations not showing fraudulent representations by plaintiff — goods purchased for resale in foreign country — allegations not establishing breach of warranty.</p> <p>Where the defendant in an action for goods sold, and delivered admits in its answer the sale and delivery of the goods to it and its agreement to pay the plaintiff the purchase price, it cannot base a defense and counterclaim for damages for fraudulent representations made .in connection with the sale of the goods, which were articles for medicinal and surgical purposes, on allegations to the effect that the plaintiff was to select and pack the goods so as to be suitable for sale in certain foreign republics, that the law of said republics required such articles to be registered with the department of hygiene and permission granted by designated authorities before the articles can be offered for sale, that the formula of the medicines must be set forth in the application for registry, etc., and that unless the articles are registered the sale is prohibited, of which facts the plaintiff was aware, but did not comply with said laws so that the defendant was unable to sell the goods. This because, first, the alleged representations were purely promissory and form no basis for a claim of fraud, and second, because there is nothing to show that the goods were not suitable for sale in said foreign countries. The plaintiff’s demurrer to said defense and counterclaim should be sustained.</p> <p>It seems, that a different situation would be presented if the plaintiff in order to induce the sale represented that the goods were in fact registered.</p> <p>Additional allegations in the answer to the effect that the goods were not labeled in accordance with the metric measures required in the foreign countries and were improperly packed and labeled do not establish the defense of fraud.</p> <p>The aforesaid allegations, excepting those relating to metric measurements and improper packing, when realleged with a statement that the defendant made known to the plaintiff the fact that the goods were to be sold in a foreign country and that the plaintiff undertook and warranted to sell and deliver a line of goods for the specific purpose of resale there and that the goods were not reasonably fit for said purpose in that the sale was prohibited unless they were properly registered, do not set out a breach of warranty by the plaintiff and the plaintiff’s demurrer thereto should be sustained.</p> <p>Page, J., dissented.</p>

Appeal by the plaintiff, The City of New York, 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 April, 1916, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from the order entered in' said clerk’s office on the 31st day of March, 1916, directing said verdict.

<p>Appeal by the defendant, Metropolitan Opera 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 31st day of January, 1918, denying defendant’s motion to dismiss the complaint on the •ground that plaintiff is an alien enemy.</p>

<p>Bills and notes — delivery of promissory note upon condition that payee deliver goods forming consideration therefor — breach of condition precedent by payee — defense of breach of condition erroneously stricken out — defense available against person claiming to be holder in due course.</p> <p>Where the maker of a promissory note alleges as a defense that it was delivered to the payee conditionally and upon the' agreement that it was not to be deemed to be delivered until certain merchandise was delivered to the maker by the payee, that the delivery of said merchandise was the only consideration for the instrument, and that the payee agreed to hold the note until the delivery of the merchandise but failed upon demand to deliver said goods, the answer pleads the breach of a condition precedent to delivery and not the breach of a condition subsequent. Hence, in an action upon said note brought by a transferee claiming to be a holder in due course, it was error to strike out said defense and to grant judgment to the plaintiff upon his introducing the note in evidence, for the defendant has the right to show that the plaintiff was not a holder in due course.</p> <p>Under the facts alleged by the defendant the payee’s negotiation of the instrument was a breach of faith or fraud within the meaning of section 94 of the Negotiable Instruments Law.</p>

Appeal by the defendant, Walter D. Hoag, as surviving executor and trustee, 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 February, 1918, denying his motion for judgment on the pleadings consisting of a complaint and the amended answer thereto.

<p>Appeal by the defendants, Milford B. Streeter 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 June, 1917, 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 June, 1917, denying their motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Frank Smith, 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 20th day of February, 1917, upon a.dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the same day setting aside the verdict of a jury in plaintiff’s favor for $5,000 which had been received pending the decision on the motion…

Appeal by the plaintiff, Charles P. Goldsmith, 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 29th day of June, 1917, upon a dismissal of the complaint by direction of the court upon the opening on the ground that the complaint does not state a cause of action.

<p>Appeal by the defendant, Woods-Lloyd Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 6th day of September, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of September, 1917, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Beal property — action to restrain continued trespass — claim of title by defendant — deed establishing defendant’s title.</p> <p>Action to restrain the defendant from committing a continuous trespass upon a strip of land bounded by a lake and lands under the waters of said lake to the center thereof. The defendant claims ownership of the lands in question.</p> <p>Evidence and the deed under which the defendant claims title examined, and held, to establish the defendant’s title, especially in view of the practical construction put upon said deed by the parties interested for over eighty years.</p> <p>Where a grant of lands is so framed as to touch the waters of a non-navigable lake the title to the lands underneath the lake to its center passes to the grantee, unless they are excluded by express exception. And this is true although the lines of the survey as stated in the description do not touch the lake.</p> <p>In construing a deed most favorably to the grantee the word “ and ” in a description may be construed to mean “ or.”</p> <p>A description of land which runs along the road and north side of a lake to a birch conveys to the grantee a title to the land and the land under the water of the lake to the center thereof.</p>

<p>Appeal by the plaintiff, Land and Lake Association, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 13th day of March, 1917, dismissing the complaint upon the decision of the court after a trial before the court without a jury.</p> <p>This appeal was transferred from the Third Department tó the Fourth Department. (181 App. Div. 913.)</p>

Cross-appeals by the plaintiff, Joseph B. Thompson, and by the defendants, Leverett J. Luce, as administrator, and another, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Westchester on the 12th day of July, 1917, upon the decision of the court after a trial at the Westchester Special Term.

<p>Waters and watercourses — construction of drain to accommodate natural watercourse followed by conveyance of lands to diSerent grantees — right of upper owner to unobstructed flow of waters — distinction between easements in watercourses and right to natural flow of waters — extension of drain by lower proprietor — damages of upper proprietor—cost of maintaining drain not imposed upon lower proprietor until damage to upper proprietor occurs.</p> <p>Where an owner over whose lands a natural watercourse flowed filled in a part thereof and installed in its place a pipe or drain to accommodate \ the waters and afterwards conveyed a portion of the land from which</p> <p>the waters flowed, he imposed a servitude of drainage upon the land retained by him in favor of that conveyed to his grantee.</p> <p>When said landowner subsequently conveyed the servient estate so burdened with an easement or right of drainage to another grantee, the latter took the land subject to the easement appurtenant to the lands of the upper owner. This upon the theory that the right of drainage through the pipe or drain constituted an easement.</p> <p>However, and irrespective of the possible existence of an easement, the grantee of the lands from whence the waters flowed acquired a natural right to have said flow continue, because notwithstanding the fact that the waters were conducted through a drain they still remained a natural watercourse, even though in so far as the arrangement was artificial said' right might be said to constitute an easement.</p> <p>The right of an owner to' have a natural watercourse flow uninterrupted from his land though sometimes called an easement, is not strictly such but is rather a natural right.</p> <p>As a general rule the owner of the dominant tenement is chargeable with the cost of the maintenance and upkeep of an easement appurtenant to his property, for he is merely charged with maintaining his own property.</p> <p>Where the grantee of the servient tenement subsequently built an extension of the pipe or drain in such a manner as to obstruct the flow of water which was backed up upon the lands of the upper owner, there was a violation of the latter’s rights, although he was properly chargeable with the cost of upkeep of any easement existing upon the servient tenement. While the owner of the servient tenement had a right to extend the pipe or drain, he is required to maintain the flow of water as it would have existed through the natural watercourse.</p> <p>However, as the obligation of the lower owner does not rest upon the law of easements, but upon the law of natural watercourses, his land cannot be charged with the expense of maintaining the flow through the pipe or drain extended by him until such time as an obstruction may result to the injury to the property of the upper owner.</p> <p>Where the lower proprietor by opening and enlarging the channel of the waters, which were once a natural stream flowing to tide water, reduced the force and effect of the current so as to increase the tidal action and cause a gradual deposit of sediment which requires removal by dredging, he is chargeable with the resulting damage to the upper proprietor, but there is no authority for charging the burden on any specific portion of the lower proprietor’s lands.</p>

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

Appeal by the defendant, Milton Rosenberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York-on the 27th day of April, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of May, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 30th day of October, 1917, reversing a prior order assessing a transfer tax upon certain property belonging to the deceased, and adjudging said property exempt from taxation.</p>

Appeal by the defendants, John Comérma 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 18th day of June, 1917, enjoining the defendants from violating the terms of a certain contract and granting other relief, including damages, upon the decision of the court after a trial at the New York Special Term.

<p>Bills and notes — pledge of securities to secure payment of note — payments to pledgee on collateral operate as payments upon note — transfer of note after maturity — defenses — when maker not entitled to injunction restraining action upon note—limitation of actions — certificates of corporation issued under seal — when discontinuance of suit upon certificates will not be enjoined.</p> <p>Where the maker of a promissory note transferred certain certificates of a corporation as security for payment, which certificates, together with the note, were transferred after the maturity of the note, any payment on said certificates made to the transferee operated as a payment upon the note and would constitute a defense in an action against the maker.</p> <p>Where a note is transferred after maturity it is subject to any defense which might exist if the note were still in the hands of the original payee.</p> <p>As the maker of said note has the defense of payment aforesaid, which could be asserted in an action on the note, he is not entitled to maintain a suit for an injunction to restrain the holder of the note from prosecuting a legal action thereon. ,</p> <p>Allegations by the maker of the note that the instrument was to be paid out of the proceeds of said certificates, or out of other moneys payable to him upon a judgment, do not constitute a defense because the alleged agreement would contradict the terms of the note itself.</p> <p>Where the certificates of a corporation pledged as collateral bear the corporate seal the period of the Statute of Limitations thereon is twenty years, and hence the pledgor is not entitled to an injunction restraining the discontinuance of an action on said certificates brought against the corporation which issued them by the pledgee upon the theory that if the action is discontinued the shorter Statute of Limitations will bar a recovery on the certificates.</p> <p>The holder of a note secured by collateral may sue upon the note before - resorting to the security, or, if action be commenced to enforce the security, hemay discontinue that action and proceed to judgment upon the note, if no right of the pledgor is thereby forfeited.</p>

Appeal by the defendant, Bernard McGreevy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of August, 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.

Appeal by the defendant, Houlder, Weir & Boyd, 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 28th 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 3d day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Jennie Gottlieb, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1917, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 26th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by, the plaintiffs, Leon Darrasse 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 22d day of November, 1917, denying their motion for judgment on the pleadings consisting of a complaint, answer and reply. The motion was for judgment dismissing the counterclaim and for the relief demanded in the complaint.

<p>Appeal by the defendants, Harris Lewis 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 9th day of January, 1917, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Peter Palluch, from a judgment of the Court of Special Sessions of the City of New York, Bronx County, Part Five, rendered against him on the 8th day of November, 1917, convicting him of having violated subdivisions 1 and 2 of section 8 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1917, chap. 623), by trafficking in liquor without a license.</p>

<p>Appeal by the plaintiff, Anna R. Crossin, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 21st day of July, 1915, upon the decision of the court after a trial at the New York Special Term.</p> <p>Plaintiff appeals from said judgment in so far as it adjudges that the tax hen foreclosed herein is subject and subordinate to easements appurtenant to premises owned by the respondents and decrees that the premises covered by said tax hen be sold subject to said easements.</p>

<p>Appeal by the plaintiff, Horace N. Dougherty, 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 or about the 9th day of</p> <p>February, 1917, affirming a judgment and order of the City Court of the City of New York entered in the office of the clerk of said court on the 7th day of March, 1916, as amended by an order entered therein on the 14th day of March, 1916.</p>

Appeal by the defendant, Sadie C. Mainthow, 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 November, 1917, appointing a referee, except in so far as said order denies plaintiff’s motion to consolidate a replevin action between the same and other parties with this action.

<p>Trial — dismissal of complaint — assignment for benefit of creditors — validity of agreement made to induce creditor to sign composition.</p> <p>Where a plaintiff has not been permitted to develop her ease by any evidence which would have been admissible under the complaint, on the theory outlined by her counsel in his opening, a dismissal can be sustained only on the ground that in no view of the case could the plaintiff have succeeded had she been permitted to proceed with the trial.</p> <p>The plaintiff, one of the creditors of a "firm which had made a general assignment, made an agreement with defendant’s testator, who was the principal creditor of the firm, under which the plaintiff transferred property to the defendant, who agreed to repay any surplus remaining after he received fifty per cent of his claim, and to reconvey to her the property if not then sold, and also to assign for her benefit his remaining claim against the firm, to reimburse her for the amount he received from her property. It is claimed the agreement is void because secretly made to induce the defendant’s testator to sign a composition. Held, that . said agreement between the plaintiff and the defendant is not necessarily void.</p>

<p>i Appeal by the defendant, The Hocking Valley Railway 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 13th day of February, 1918, denying its motion to vacate a judgment herein and for leave to file a supplemental answer. "</p>

Appeal by the defendant, The Hocking Valley Railway 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 13th day of February, 1918, denying its motion to vacate a judgment entered herein on the 26th day of December, 1917, and for leave to file a supplemental answer.

<p>Appeal by the defendant, Patrick J. Carlin, as superintendent, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of May, 1917, granting relator’s application for a peremptory writ of mandamus.</p> <p>The superintendent of buildings, in charge of the bureau of buildings for the borough of Brooklyn, has official powers and duties defined in the Greater New York charter, section 411,* and the Building Code of the city of New York.</p> <p>Relator as owner of real property situate at Nos. 452-454 Fulton street, in the borough of Brooklyn, caused plans to be filed with the superintendent of buildings for the erection of a ten-story building. His plans provided for foundations carried down to ten feet below the curb level. On January 5, 1917, the superintendent of buildings rejected said plans and refused a permit for construction, with a notation to “ carry foundation wall to depth of subway walls.”</p> <p>The southerly retaining wall of the subway under Fulton street, in front of the premises in question, is twenty-two inches from relator’s building line, and thirteen feet two inches below the level of the proposed foundation shown on relator’s plan. By such order of defendant, relator was required to sink his foundation to a total depth of twenty-three feet two inches.</p> <p>The learned court at Special Term granted a peremptory writ of mandamus requiring the issue of a permit in accordance with relator’s plans. This was on the ground that relator has the right to use his property to the greatest possible advantage; that by the construction of a subway relator’s property cannot be subjected to any greater burden than is embraced within the public easement for ordinary street purposes, unless the city make relator compensation adequate to the increased burden.</p> <p>Charles J. Nehrbas [William P. Burr, Corporation Counsel, Terence Farley and William T. Kennedy with him on the brief], for the appellant.</p>

<p>Appeal by the defendants, Elizabeth H. Muncie and another, from a judgment of the Supreme Court in favor of the plain-</p> <p>tiff, entered in the office of the clerk of the county of Kings on the 10th day of July, 1917, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment construed the 3d clause of the will of Lucinda D. Phillips, deceased, and decreed an equitable lien against certain real property of the appellants.</p> <p>Mrs. Phillips, the testatrix, had two husbands, the first named Hamilton, by whom she had two children, the son, Lewis B. Hamilton, and the daughter, Elizabeth, the wife of Edward H. Muncie. Both the Muncies are physicians.</p> <p>During her lifetime the testatrix had assisted her daughter Elizabeth and her husband in the erection of a sanitarium at Nos. 117 and 119 Macon street, Brooklyn. ■ The money for this purpose was raised by mortgages on the Phillips property, which mortgages the Muncies agreed to carry. Among such loans was a mortgage for $3,000 upon the house at 767 Marcy avenue, made May 25, 1894, the interest on which the Muncies paid during the testatrix’s life. The title to this sanitarium property on May 31, 1894, was taken jointly in the names of Mrs. Muncie and her mother, the testatrix. Mrs. Muncie then conveyed her interest in this property to her mother by deed of December 29, 1896. The mother, this testatrix, held such title until December, 1902, when she conveyed the sanitarium premises back to the Muncies as husband and wife. By the 3d clause of Mrs. Phillips’ will, made in 1902, she devised to her son Lewis, and his wife, “ and to the survivor of them at my decease, my two houses and lots now known as number 767 Marcy Avenue and number 352 Lexington Avenue, in said" Brooklyn, with the appurtenances, absolutely and in fee, free and clear from all hens and encumbrances.”</p> <p>After her death in May, 1903, the Muncies continued paying the interest. The original mortgage was called in 1906, when the Muncies, at their own cost, obtained a new loan from the Brevoort Savings Bank, and paid the interest thereon, and also promised to pay off the principal. In 1911 they refused further liability regarding this mortgage. Upon such refusal, this suit was brought for a construction of this 3d clause of the will, also to obtain a direction that the executors be required to pay off this mortgage, and that the</p> <p>Muncies pay it together with the interest since 1911. After certain denials, the answer of the Muncies counterclaimed for the back payments of interest after the testatrix’s death, and the expense of procuring a new mortgage, being in all $1,475.</p> <p>The., answer of Mr. Hamilton individually with his wife prayed that if such mortgage with the interest payments be not repaid, then that the Hamiltons be adjudged to have a hen upon the Muncie premises at 117 and 119 Macon street to the extent of such $3,000 mortgage and interest.</p> <p>The court found that this $3,000 and the avails of certain other mortgages had been applied by the Muncies to the purchase and completion of their sanitarium. For the amount of this mortgage of $3,000 and such interest, a lien was decreed on the sanitarium property. The Muncies have taken this appeal.</p>

Appeal by the plaintiff, Delia Allen, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 4th day of January, 1918, affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, Fourth District, dismissing the complaint in an action upon a marshal’s bond.

Appeal by the defendant, Ann Kelly, 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 22d day of November, 1917, upon the verdict of a jury for $775, and also from an order entered in said clerk’s office on the 12th day of December, .1917, denying appellant’s motion for a new trial made upon the minutes. The court dismissed the complaint as to the defendant Edward F. Kelly.

i Appeal by the defendant, 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 13th day of November, 1917, denying-its motion to change the place of trial from the county of Ulster to the county of. New York and granting the plaintiffs’ motion to retain the venue in Ulster county.

<p>Crime — jurisdiction of Court of Special Sessions of city of New York to determine complaints of misdemeanors and to impose sentence — historical review of legislation affecting said court.</p> <p>Section 741 of the Code of Criminal Procedure, relating to proceedings in the Courts of Special Sessions in the city of New York, deals with the manner of procedure, and does not purport to limit the jurisdiction. It also recognizes the fact that there are special provisions of law relating' to the Court of Special Sessions in the city of New York which it is not the- intention of the Legislature that the provisions of the Code of Criminal Procedure relating to other counties shall supersede. •</p> <p>The Special Sessions of the city of New York has power to hear and determine all complaints of misdemeanors except when jurisdiction is divested by indictment or removal and to pronounce upon conviction the same sentences that would be appropriate upon a conviction in the Court of General Sessions for the same offense.</p> <p>A city magistrate sitting as a Court of Special Sessions.of the city of New York has jurisdiction to try a defendant charged with cruelty to animals declared to be a misdemeanor by section 185 of the Penal Law and may sentence the defendant to pay a fine of $100, and in default thereof to stand committed to the city prison for twenty days.</p> <p>Historical review of the legislation affecting Courts of Special Sessions."</p>

Appeal by the plaintiff, Robert B. Brown, 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 9th 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 James McCreery Realty Corporation, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 13th day of June, 1917, upon the decision of the court after a trial at the New York Special Term, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 2d day of June, 1917.</p> <p>Appeals by the plaintiff, Times Square Improvement Company, Inc., and the defendant Reuben Sadowsky from parts of said judgment.</p>

Appeal by the defendant, J. F. Starkey & 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 15th day of January, 1918, as resettled by an order entered in said clerk’s office on the 6th day of February, 1918, denying defendant’s motion to vacate an order for the examination of the defendant before trial and for the production of its books and papers.

Motion by the respondents, Oscar S. Straus and others, constituting the Public Service Commission of the State of New York for the First District, to quash a writ of certiorari brought to review an order of the Commission denying relator’s application for a rehearing.

<p>Insurance — fire insurance — cancellation of policy and reinsurance in other companies — effect of'acceptance of .payment of loss by substituted companies — principal and agent — ratification of act of agent by acceptance of benefits of contract — principal cannot ratify parts of agent’s act and repudiate those not beneficial — proof of loss delivered to agent of insured and returned by him — proof of loss mailed to foreign insurance company.</p> <p>Where a sub-agent through whom the plaintiff had placed policies of nre insurance upon its property, advised the plaintiff’s agent that certain insurance placed with a foreign insurance company not authorized to do business in this State should be canceled and replaced with other insurers, which was done, and new insurance in lieu thereof was accepted by the plaintiff, which collected a loss in full on the new policies, it cannot recover upon the foreign policy.</p> <p>The plaintiff having accepted the new policies with full knowledge that they were taken out in place of the foreign policy, cannot keep the new policies and recover thereon, without ratifying the act of its sub-agent in making the substitution, although technically the foreign policy was not canceled at the time of the loss by fire and had never been surrendered for cancellation.</p> <p>A principal cannot ratify the acts of an agent in so far as they are beneficial without adopting the parts that are not to his advantage.</p> <p>A proof of loss mailed to the plaintiff’s own sub-agent was not notice to the foreign insurance company, especially when the sub-agent did not deliver said proof of loss to the agent of the insurer.</p> <p>Where the policy required the plaintiff to give proof of loss within sixty days after the occurrence of a fire, the fact that plaintiff mailed by registered letter a duplicate of proof of loss addressed to the foreign insurer in Russia, did not establish that said proof was received 'by the insurer within said sixty days, especially in the absence of proof as to the time necessary for transmission in due course of the mails.</p>

<p>Will construed — devise of residuary estate with “ understanding ” that legatee will give undisposed of property to certain person at his death — when residuary legatee takes absolute gift with power to dispose of property during his lifetime or by will.</p> <p>Where a testatrix having made a bequest of a specific sum of money to the plaintiff, gave the whole residuary estate to her husband, “ to have and to hold the same to him, his heirs and assigns forever,” with the</p> <p>• understanding that at the death of the residuary legatee “ all of the estate which he shall derive under this Will which shall then remain by him undisposed of he shall give and turn over ” to the plaintiff, there was an absolute gift of the residuary estate both real and .personal to the husband of the testatrix, with unlimited power to dispose of said property. Hence, the residuary legatee had power to give and devise the residuary estate to his own sisters to the exclusion of the plaintiff, and she is not entitled to recover any part of his estate which may have come from the original testatrix.</p> <p>The devise of the residuary estate with the “ understanding that at the death of the legatee he shall give the undisposed property of the estate to the plaintiff, did not show a prior agreement between the residuary legatee and the testatrix as to the final disposition of the residuary estate, but meant no more than an expression of the understanding or desire of the testatrix that her husband should give the property to her sister.</p>

<p>Appeal by the plaintiff, Catherine S. McKenna, 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 28th day of November, 1916, dismissing the complaint on the merits upon the report of a referee appointed to hear and determine the issues.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 30th day of December, 1916, directed to Louis W. Stotesbury, as Adjutant-General, and others, commanding</p> <p>them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in removing the relator from office and dismissing him from the military service.</p>

Appeal by the plaintiff, Caroline Unger, 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 Queens on the 4th day of February, 1916, dismissing the complaint upon the direction of the court, and also from an order entered in said clerk’s office on the 9th day of December, 1915, granting defendant’s motion to set aside the verdict of the jury in plaintiff’s favor and to dismiss the complaint.

Appeal by the defendant, State Board of Tax Commissioners, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 23d day of October, 1917, denying its motion to vacate a writ of certiorari.

<p>Appeal by the plaintiffs, Anna Elizabeth Mischlich and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 17th day of August, 1917, dismissing the complaint upon the merits upon the decision of the court after a trial at the Queens County Special Term.</p> <p>The action was brought to restrain the defendants from using certain premises in Rockaway Park as a boarding house,</p> <p>and from erecting on said premises any building to be used as a boarding house.</p>

<p>Appeal by the defendant, Putnam Coal and Ice 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 5th day of July, 1917, upon the verdict of a jury for $13,500, and also from an order entered in said clerk’s office on the 28th day of July, 1917, denying defendant’s motion for a new trial made upon the minutes.</p> <p>The defendant owned and operated a factory for the manufacture of artificial ice. A crane, carrying a trolley or hoist, was used in the tank room to lift and carry the ice. The crane ran on tracks placed on top of a beam fastened to the side wall about ten feet above the floor, and of another parallel beam running through the center of the room. The crane was moved by hand, but the hoist was moved to and fro upon the crane and lifting power applied by electricity fed from two wires running along the beam which supported the track against the wall, about ten feet from the floor. They were charged with 440 volts of electricity. The plaintiff was a steam fitter employed by the Shipley Construction and Supply Company, and was sent to the defendant’s factory to work upon a construction contract made between the York Manufacturing Company and the defendant, which was being carried out, in whole or in part, by the Shipley Company. In the prosecution of his work it became necessary to measure the distance from the floor of the tank room to the top of the crane in order that a pipe could be carried through the wall without interfering with the crane. The plaintiff, knowing nothing of the charged wires, went into</p> <p>the tank room, climbed up on a temporary wooden rail to measure and mark on the wall the height of the top of the crane, and, while so engaged, received a severe shock from the wires, resulting in an injury for which he has recovered a judgment, and from that judgment defendant appeals.</p>

Cross-appeals by the plaintiff, Manning, Maxwell & Moore, Inc., and by the defendant, American Can 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 21st day of February, 1918, granting in part and denying in part plaintiff’s motion for a bill of particulars.

Appeal by the defendants, Bird S. Coler 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 9th day of June, 1917, upon the decision of the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 31st day of May, 1917,. denying defendants’ motion to reopen the case.

Appeal by the defendant, Edoardo Fontana, 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 11th day of September, 1917, upon the decision of the court after a trial at the New York Special Term granting plaintiff an absolute divorce. An appeal is also taken, as stated in the notice of appeal, from the decision pursuant to which the judgment was entered.

Appeal by the defendant, The New Trinidad Lake Asphalt Company, Limited, 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 March, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of March, 1917, 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 16th day…

Appeal by the plaintiff, Anton Larsen & Son, Inc., 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 27th day of August, 1917, dismissing the complaint as to the respondent, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, Charles O’Neill, 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 3d day of June, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of June, 1916,- denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, H. M. Goldstein 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 11th day of February, 1918, denying its motion to vacate a judgment entered herein on the 18th day of January, 1918, on the ground that the- same does not conform to the verdict as rendered.

Certiorari issued out of the Supreme Court and attested on the 9th day of August, 1917, directed to Herbert S. Sisson, as Commissioner of Excise of the State of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in connection with an order made on the 17th day of July, 1917, approved by the Governor of the State of New York on the 24th day of July, 1917, in pursuance of chapter 521 of the Laws…

Appeal by the plaintiff,.,Albany Heights Realty Company, 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 26th day of October, 1917, upon the decision of the court after a trial at the Kangs County Special Term. The judgment decreed the reformation of a contract between the parties and declared it void. It dismissed the complaint on the merits and directed a money judgment in defendant’s favor.

Reargxjment of an appeal by Wood Harmon Warranty Corporation, a petitioner, 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 20th day of March, 1917, confirming the report of a referee and denying the motion of the appellant for the payment of awards to unknown owners of damage parcels 437 and 438 in the above-entitled proceedings (99 Mise. Rep. 24).

<p>Appeal by the plaintiff, Syracuse Malleable Iron Works, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 18th day of March, 1916, dismissing the complaint on the merits upon the decision of the court after a trial at the Onondaga Trial Term, the case having been withdrawn from the consideration of the jury by consent.</p>

<p>Motion by the plaintiff, Bush Terminal Company, for a new trial upon a case containing exceptions, ordered to be heard in the Appellate Division in the first instance after the direction of a verdict for defendant at the close of the case, both sides having then moved for the direction of a verdict.</p> <p>The trial was had at the New York Trial Term in June, 1917.</p>

<p>Principal and agent — evidence of agency — trial — dismissal of complaint — findings — appeal — reversal of judgment dismissing complaint — new trial.</p> <p>In a suit to procure the rescission of a contract for the purchase of corporate stock and bonds upon the ground that the purchase had been induced by certain false and fraudulent representations made by defendant’s alleged agent, evidence held sufficient to establish the agency and to make out a prima facie case, and, therefore, it was error to strike out material testimony as to the conversations between plaintiff and the alleged agent and to dismiss the complaint.</p> <p>It was error in any event for the trial court to make findings of fact and conclusions of law as all that it was warranted in doing was to dismiss the complaint.</p> <p>The defendant not having rested at the trial before moving to dismiss the complaint was not foreclosed by the granting of the motion from introducing proof in ease the dismissal was reversed, and is entitled to a new trial.</p>

Appeal by the defendants, Siegfried Deutsch 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 14th 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 15th day of December, 1916, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, McKinley Realty and Construction 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 24th day of May, 1916, convicting it of a violation of section 109 of the Tenement House Law.

<p>Evidence — action for personal injuries — when evidence as to repairs or alterations subsequent to accident inadmissible — inspection of records brought by witness under subpoena.</p> <p>The general rulé that evidence as to repairs or alterations subsequent to an'accident is inadmissible in an action for personal injuries, has been relaxed only where the defendant has himself opened the door by placing upon the record testimony that conditions remained the same at the scene of the accident at some specified time thereafter.</p> <p>A mere statement by counsel of his own impression or views as to the permanency of physical conditions at the place of the accident affords no basis for the offer of proof to the contrary.</p> <p>Hence, in an action for personal injuries sustained by running into the supporting bar of an awning which protruded across a highway, it is reversible error to admit in evidence, over defendant’s objection, testimony as to repairs made, after the accident, to the awning in question, upon the ground that defendant's counsel stated in his opening address to the jury that the conditions remained the same.</p> <p>. Even if defendant’s counsel had said that he intended to offer proof that there had been no change in conditions after the accident, it would have afforded no justification for the receipt of the testimony, for the offer of the proof indicated would have been promptly rejected and the evidence excluded if objected to.</p> <p>It was also error to refuse to allow defendant’s counsel to inspect the records brought into court by a witness in obedience to a subpoena unless defendant would offer the same in evidence.</p> <p>Shearn, J., dissented.</p>

Appeal by the defendant, Rose Werther, 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 12th day of June, 1917, upon the verdict of a jury for $6,147.90, and also from an order entered in said clerk’s office on the 27th day of June, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Pincus Wilsker 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 New York on the 16th day of February, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1917, denying plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, John C. Rodgers, 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 August, 1917, upon the report of a referee appointed to hear and determine the issues, and also from an order entered in said clerk’s office on the 16th day of August, 1917, granting plaintiff an extra allowance of costs.

<p>Pleading — complaint in action against stockbrokers sought to be charged jointly—demurrer of one defendant sustained — when stockbrokers employed by other brokers to execute orders not liable to customer. ■=-</p> <p>Demurrer to the complaint in an action brought against two firms of stockbrokers for an accounting with respect to moneys deposited with one of the firms as a margin on a speculative account. It was alleged, among other things, that one of the firms acted as correspondent, agent and broker for and on behalf of the firm with which the plaintiff deposited money and also on behalf of the plaintiff, which amounts to the allegation of a conclusion that the two firms acted jointly as agents and brokers of the plaintiff. Complaint examined, and held, that the demurrer of one of the defendant firms should be sustained in that they were only employed to execute the orders of the other defendant and were not answerable to the plaintiff personally, but only to the brokers who employed them.</p> <p>But as it is possible that the plaintiff may have had a contract with the defendants so that they became jointly hable to her, she will be given an opportunity to amend her complaint.</p>

Appeal by the plaintiff, Edgar Gibbs Murphy, 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 11th day. of January, 1915, upon the verdict of a jury rendered by direction of the court dismissing the complaint upon the merits and granting defendants’ judgment on.their counterclaim.

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 12th day of July, 1917, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 14th day of July, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Annie J. Tischner, 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 November, 1917, requiring the plaintiff to serve an amended complaint wherein she shall separately state and number the facts constituting her alleged cause of action in favor of herself, individually, and those constituting her cause of action in her representative capacity as a…

Appeal by the defendant, Louis Pizitz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York.on the 21st day of June, 1917, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 15th day of June,' 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Insurance — fire insurance — policy construed — when insurance does not cover contents of wooden structure not connected with brick building.</p> <p>A fire insurance policy which covers merchandise, fixtures and furniture “ while contained in and on the brick building and extensions thereto ” situate at a certain number on a certain street, does not cover the contents of a wooden structure in the rear of the said lot described which was forty feet from the rear wall of the brick building and had no physical connection therewith. This is true although the survey of the premises made by the insurance company mentions property stored in the yard.</p>

Motion by Edward H. Titus, defendant, respondent, for an order staying the prosecution of this action until after the termination of the war between the United States and the Kingdom of Hungary, and for other relief.

<p>Trust — action to establish — evidence — Statute of Frauds.</p> <p>In an action to compel the defendant to execute and deliver to the plaintiff a quitclaim deed of an equal undivided one-half of certain real property, and for an accounting of one-half of the net profits, upon the theory that the plaintiff had contributed one-half of the purchase price, and that the property was held in trust for him, evidence held not sufficiently clear and convincing to divest the defendant of his title.</p> <p>Under section 242 of the Real Property Law, a trust cannot be created orally.</p>

<p>Cross-appeals by the plaintiff, Clarke Contracting Company, and by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of April, 1917, upon the verdict of a jury for defendant without damages, and also from an order entered in said clerk’s office on the 24th day of April, 1917, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, International Battery Company, Inc., from a. judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of March, 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 23d day of March, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by. the plaintiff, Joseph T. McCaddon, 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 January, 1917, upon the decision of the court after a trial at the New York Special Term, with notice of an intention to bring up for review an order of the Appellate Division reversing an order herein directing the issuance of a commission to take the testimony of a certain witness in…

Appeal by the defendant, Caroline Maync, individually and 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 14th day of February, 1918, granting additional compensation to the referee in a foreclosure action.

<p>Sale ■— action for breach of contract •— defect in quality — attachment — motion to vacate upon original papers — sufficiency of moving papers.</p> <p>Where a motion to vacate a warrant of attachment is made solely upon the original papers upon which a prima facie case is made out, sworn to on personal knowledge, and there is no denial, the court will uphold the attachment and will not be over technical in order to vacate it.</p> <p>Where in an action to recover damages for breach of contracts between defendant and plaintiff’s assignor for the sale by defendant of brass turnings of a designated quality, the main issue is as to the defective quality of the turnings supplied, an affidavit of the president of plaintiff’s assignor, who states upon his personal knowledge that “When the ear containing said turnings arrived * * * the contents was inspected</p> <p>and analyzed, and disclosed that the brass turnings contained lead far in excess of .05 %, and substantially failed to comply with the requirements of said contract,” is sufficient to sustain a warrant of attachment, although there is no allegation that the affiant made the inspection and analysis or was competent so to do, there being no answer denying the essential allegations in the complaint or proof tending to show that the goods shipped were of contract quality.</p> <p>Although the contract shows that the material was to be “ inspected, sampled and analyzed,” the papers are not defective because of a failure to show that the material was also “ sampled.”</p> <p>An allegation that the material was held for a reasonable time before being sold at auction sufficiently shows that when the plaintiff’s assignor called on the defendant to remove the material and repay the purchase price and its expenses, the plaintiff’s assignor actually had" the material ready for removal.</p> <p>Since the contracts provided that “ Should the quality of the material in any way vary from that specified in the contract, the Seller is to be immediately notified and is to immediately remove the material, paying its value and any expenses that the Buyer may have been put to in regard to it,” if the seller refused to remove, the purchaser was not bound to store it indefinitely, and the proper method of disposing of it was by an auction sale.</p> <p>It was not necessary to allege all of the facts with respect to the manner in which the auction sale was conducted, especially since there was no claim that it was not properly conducted.</p> <p>A failure of proof as to certain items of damage does not justify vacating the attachment, there being proof of substantial damage outside of said items.</p> <p>In an allegation “ That said defendant is justly and truly indebted to the plaintiff in the sum of $7,384.18, for damages for breach of contract, other than a contract to marry, which amount is now due and owing from the defendant to the plaintiff over and above all counterclaims known to the plaintiff upon the following facts, to wit,” the words “ upon the following facts ” do not refer to the counterclaims known to the plaintiff, but refer to the plaintiff’s right to recover the damages.</p>

Appeal by the plaintiff, Atlantic Communication Company, 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 November, 1917, 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 defendant, The Defiance Machine Works, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of February, 1918, as modified in certain respects a prior order requiring the examination of the plaintiff, by certain of its officers, and the production and inspection of certain papers and books of account with respect to issues raised by the counterclaims.

<p>Crime — attempt to offer bribe in violation of Penal Law, section 371 — sentence — sufficiency of indictment — evidence —• accomplice — admissibility of testimony of judge presiding at trial at which bribery of juror was attempted and also of district attorney as to conversations with one who informed the court of the attempted crime.</p> <p>Where a defendant was indicted, arraigned and tried upon an indictment for “ attempted bribery ” and the count of the indictment submitted to the jury charged that the defendant “ did feloniously attempt to give and offer and cause to be given and offered * * * the sum</p> <p>of Twelve hundred fifty dollars in money and a promise and agreement therefor,” and the verdict was a general one of guilty as charged in the indictment, the court is not empowered to impose a sentence with the maximum of ten years.</p> <p>Under section 371 of the Penal Law, there may be an attempt to commit the crime of offering a bribe.</p> <p>The indictment following the language of the statute, save that the specification of the offense is, instead of disjunctive, conjunctive, was good, and conviction of any one of the offenses was sufficient, i. e., of giving or of offering or of promising, etc.</p> <p>An eavesdropper who heard defendant tell another that he could control the vote of a juror in a case on trial and who prosecuted the affair with the knowledge, countenance and approval of the court, the district attorney and the attorneys in the action, was not an accomplice.</p> <p>Evidence held sufficient to justify a finding of the guilt of the defendant in attempting to commit the crime of offering a bribe.</p> <p>Evidence of the justice who presided at the trial in which the defendant was accused of bribing a juror and of the district attorney of the county at that time as to conversations and relations with the so-called eavesdropper, was competent and properly admitted.</p>

<p>Assignmemt — contract—failure to show valid transfer.</p>

Appeal by defendant Charles R. Hertzberg from a judgment of the Supreme Court, entered in the Oneida county clerk’s office April 23, 1917, upon the report of a referee in an action for the foreclosure of a mortgage.

<p>Motion to amend order allowing appeal by defendant Stein to Court of Appeals denied.</p>

Appeal by the petitioners and by the Democratic party of New York county and another from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office February 5, 1918, dismissing the application herein upon the merits and as a matter of law.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office March 16, 1918, granting judgment on the pleadings.</p>

<p>Appeal from an order of filiation made by the Court of Special Sessions of the City of New York on the 11th day of April, 1917.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office January 15, 1918, denying a motion to strike out the amended complaint herein or in the alternative to strike out the “ Eighth ” paragraph thereof.</p>

Appeal by the defendant from an order of the Supreme Court, made at the Westchester Special Term for Motions and entered in the office .of the clerk of the county of Westchester on the 1st day of October, 1917, granting the plaintiff’s motion to punish the defendant for contempt of court.

<p>Order of the Appellate Term affirmed, with costs.</p>

<p>Judgment affirmed, with costs.</p>