Volume 183 — New York Appellate Division Reports

<p>. Appeal by the defendant, George C. Howe, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1918, denying his motion to have the complaint made more definite and certain, or in the alternative that certain irrelevant matter be stricken out.</p>

Appeal by the defendant, Bradley Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 2d day of February, 1917, upon the verdict of a jury rendered by direction of the court, both sides having stipulated, during the course of the trial, that the jury might be discharged and the trial proceed before the court as if a jury were present and the court be empowered to direct a…

Appeal by Carrie Einstein, as administratrix, from an order and decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 22d day of December, 1917, settling the accounts of the administrator herein, overruling and disallowing appellant’s claim against the estate and directing distribution to other alleged creditors.

Appeal by the defendant, The Preferred Accident Insurance Company 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 Oswego on the 25th day of June, 1917, upon the verdict of a jury and also from an order entered in said clerk’s office on the 19th day of May, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Darius Broughton, from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 2d day of February, 1918, declaring the answer of the defendant to be frivolous and directing judgment for the relief demanded in the complaint.</p>

Appeal by the defendant, Buffalo General Electric Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 18th day of October, 1917, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 3d day of November, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Annie Prall Fahnestock, 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 24th day of October, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Trespass — unlawful erection of sign upon vacant lot — measure of damages — erroneous dismissal of complaint.</p> <p>The measure of damages to unimproved property by the unlawful erection of an advertising sign thereon is the difference in the rental value of the land in its original unobstructed condition and the rental value with the obstruction thereupon.</p> <p>Where, in an action for such a trespass, there was testimony that with the signboard erected the premises could not be rented at all, and that without the signboard they could have been rented for $1,625, it was error to dismiss the complaint.</p>

Appeal by the defendant, William C. Hamilton, from a judgment of the Court of Special Sessions, City of New York, Borough of Manhattan, Part VI, rendered against him on the 21st day of January, 1918, convicting him of a violation of section 530 of the Penal Law, and also from the judgment of said court overruling the demurrer and denying his motion to dismiss the information for lack of jurisdiction and further denying his motion for a new trial.

<p>Corporations — action by foreign corporation — pleading — condition precedent — allegation of compliance with section 16 of General Corporation Law.</p> <p>Where, in an action by a foreign corporation against the guarantors of a contract between the plaintiff and another foreign corporation, it appears that said contract was made within this State, and that payments thereunder were to be made at the plaintiff’s office in the city of New York, it is a condition precedent to the maintenance of the action that section 15 of the General Corporation Law should have been complied with prior to entering into the contract, and a failure to allege such •compliance renders the complaint demurrable.</p> <p>Smith and Shearn, JJ., dissented, with opinion.</p>

Appeal by the plaintiff, the East Coast Oil Company, S. A., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of January, 1918, denying its ■motion to overrule defendant’s demurrer to the complaint.

Appeal by the plaintiff, Archibald Palmer, as trustee, from a judgment of the Supreme Court in. favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of November, 1917, upon a dis-. - missal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by Joseph J. Schiffer, as committee, from so much 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 8th day of October, 1917, as disallows a claim against the estate amounting to $846.11, filed by the appellant, and as directs the distribution of the estate without providing for the payment thereof.

<p>Executors and administrators — “judicial settlement,” what constitutes — limitation of action upon claim by legatee.</p> <p>Where a final decree of a Surrogate’s Court was entered in accounting proceedings in 1900, directing the distribution of all moneys on hand to the persons entitled thereto, save a certain sum which the executors were directed to retain to meet the expenses of defending any suit which might be brought to recover a legacy claimed by the plaintiff, there was a “ judicial settlement,” within the meaning of section 2514 (now 2768) of the Code of Civil Procedure, and the plaintiff’s claim is barred under section 1819 of the Code of Civil Procedure by the six-year Statute of Limitations which began to run in 1900, although another decree was entered in 1916, without prejudice to the enforcement of payment of the legacy.</p> <p>As the person claiming the legacy was a party to the accounting proceeding, . the account became conclusive as to her,- even though the decree did not undertake to pass finally upon the validity of. her legacy or whether ■ she was entitled to the same over and above the amount of her note held by the estate.</p>

Appeal by the plaintiff, Bessie Ishie, as administratrix, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of July, 1916, granting defendant’s motion for a new trial herein on the ground of newly-discovered evidence.

<p>Trial — when separate trial of issues should not be granted.</p> <p>Where, in an action to rescind a contract for fraud and to compel the return of moneys paid thereunder, the defendant interposes a general denial and as a separate defense alleges that after a full knowledge of the facts claimed by the plaintiff to have been falsely alleged and fraudulently concealed, the latter ratified the contract by receiving payments and by prosecuting an action thereon, a separate trial of the issues raised by the defense should not be directed, as the evidence relevant thereto would also be involved in the trial of the other issues.</p> <p>The discretion of the court to order a separate trial of such issues should only be exercised where the issue ordered to be separately tried is so independent of the other issues that its trial will in no way involve the trial of the issues to be thereafter tried, and where the determination of that issue will satisfactorily and with practical certainty dispose of the ease if decided for defendant.</p>

Appeal by the defendant, William. H. Seaioh, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1918, granting him leave to serve a second amended complaint, and also from an order entered in said clerk’s office on .the 1st day of April, 1918, denying his motion for a retaxation of costs.

<p>Appeal by the defendant, St. Lawrence Life Association, 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 5th day of July, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of June, 1917, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, 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 18th day of July, 1917, upon the verdict of a jury for $85,000, and also from an order entered in said clerk’s office on the 11th day of July, 1917, denying defendant’s motion for a new trial made upon the minutes, and also from an order dated the 18th day of June,…

Appeal by the plaintiff, Alvah J. Smith, from a judgment of the County Court .of Schenectady county, entered in the office of the clerk of said county on the 24th day of October, 1917, upon the verdict of a jury dismissing the complaint, and also from an order entered in said clerk’s office on the 25th day of October, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Streever Lumber Company, from so much of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of Saratoga county on the 15th day of May, 1917, as dismisses the complaint upon the merits and directs that the hen filed by plaintiff against the property of the defendant the Congregation of Sharra Tfille be discharged and awards costs to said defendant against the plaintiff.</p> <p>The judgment was entered upon the decision of the court after a trial at the Saratoga Trial Term before the court without a jury</p>

<p>Stare decisis — obiter dictum not binding — pleading — demurrer to complaint stating cause in equity — complaint cannot be sustained as stating action at law — insurance — suit for an accounting on policy of foreign insurance company — when our court of equity has no jurisdiction.</p> <p>Expressions in a judicial opinion which, go beyond the issues involved, while entitled to respect, do not control the court in a subsequent suit where the very point is presented for decision.</p> <p>Where a complaint is confined entirely to equitable matters and is demurrable upon the ground that it does not state a cause in equity the court should not overrule the demurrer because it is possible to discover in the pleading grounds for relief by legal action.</p> <p>Under section 1207 of the Code of Civil Procedure, providing that where there is no answer the judgment shall not be more favorable to the plaintiff than that demanded in the complaint, the plaintiff on demurrer to a complaint in equity not demanding legal relief is not entitled to have the pleading sustained as stating an action at law.</p> <p>Where the plaintiff sues in equity to compel a foreign insurance company to account for certain moneys alleged to be due under a contract of insurance, a demurrer to the complaint should be sustained upon the ground that the foreign insurance company cannot be called to an accounting within this State where such accounting involves matters of its internal management within its home State.</p>

Appeal by the defendants, Callan Brothers, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 11th day of December, 1917.

<p>Pleading — demurrer — complaint in action on policy of life insurance — allegation that plaintiff was substituted as beneficiary admitted by demurrer — when defect of parties defendant not available.</p> <p>A defendant by demurring to the complaint admits the truth of the allegations thereof. Hence, where the plaintiff suing to recover on a policy of life insurance alleges' that he was designated by the insured as the beneficiary under the policy and is now the beneficiary entitled to payment, the defendant admits this fact by demurrer and cannot contend that the wife of the insured, the original beneficiary named, is the true beneficiary, or that the substitution of the plaintiff was not properly accomplished.</p> <p>Nor can the defendant attack the complaint on the ground that there is a defect of parties in that the wife of the insured has not been made a defendant.</p>

Appeal by the defendant 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 7th day of November, 1917, upon the decision of the court after a trial before the court, a jury having been waived. .

Appeal by the plaintiff,. William J. Stoneman, from a 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 October, 1917, upon the decision of the court after a trial before the court without a jury, with notice of an intention to bring up for review the decision and order of the court directing the entry of the judgment.

<p>Workmen’s Compensation Law — loss of four fingers and injury to thumb equivalent to loss of hand — award by Industrial Commission affirmed.</p> <p>Where an employee received accidental injuries which necessitated the amputation of four fingers of one hand up to and including the greater portion of their proximal phalanges and which also caused an impairment of the full use of the thumb so that it was impossible for him to bring the thumb in connection with the palm of his hand it was proper for the State Industrial Commission to make an award for the loss of the hand instead of for the loss of four fingers only, although the claimant has for certain limited purposes some use of the remaining portion of his hand.</p>

<p>Workmen’s Compensation Law — approval by Industrial Commission of compensation agreement between employer and dependents — objection of insurance carrier to such approval immaterial — insurance carrier entitled to be heard — blow exciting dormant tubercular condition — discretion of Commission to refuse to reopen case.</p> <p>An agreement for the payment of compensation entered into between the dependents of an employee who was killed and his employer which has received the approval of the State Industrial Commission, pursuant to section 20 of the - Workmen’s Compensation Law, is valid and binding although the insurance carrier indicated its dissatisfaction with the agreement before the same was approved by the Commission.</p> <p>The statute does not make the approval of the Commission depend upon the consent of the insurer, nor even on the consent of all the claimants, but only upon the consent of the employer and the principal dependent. However, the insurer is entitled to a hearing on the application for the approval of the Commission and without such hearing the award will not be deemed conclusive as to it.</p> <p>An award is justified where it appears from expert medical testimony that tuberculosis of the brain, from which the employee died, was caused by a blow upon the head which brought into activity a dormant tubercular condition.</p> <p>The State Industrial Commission has discretionary power to refuse to reopen a case.</p>

Appeal by the defendants, John E. Donovan and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 14th day of September, 1917.

Appeal by the plaintiff, Harry B. Anderson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 4th day of December, 1917, upon the decision of the court, the facts having been stipulated.

Appeal by the plaintiff, Samuel Brown, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 13th day of February, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the defendant,- Cohoes Gas Light Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 2d day of January, 1918, upon the verdict of a jury for 12,500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, James A. Hovey, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Saratoga on the 16th day of February, 1917, dismissing the complaint upon the decision of the court, one question of fact having been submitted to the jury.

Appeal by the defendant, Town of Callicoon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 12th day of June, 1917, upon the verdict of a jury for $2,700, 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, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 21st day of February, 1917, upon the verdict of a jury for $2,300, and also from an order entered in said clerk’s office on the 24th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Hudson Navigation Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 10th day of April, 1917, dismissing the complaint upon the decision of the court after a trial before the court without a jury.

Appeal by the plaintiff, The Peck Brothers & Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 9th day of April, 1917, dismissing the complaint upon the decision of the court, both sides having moved for the direction of a verdict at the close of the case.

<p>Appeal by the plaintiff, Francis J. Essig, 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 23d day of October, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of November, 1917, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by Fidalma Del Genovese, individually and as administratrix, from an order of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of said Surrogate’s Court on the 11th day of June, 1917, which, among other things, vacated and set aside a stipulation of evidence made on the 25th day of May, 1909, and relieved the respondent and proponent therefrom on the ground that the same was improvidently made and upon the further ground that at the…

Appeal by the defendants, Samuel Kaplan and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of December, 1917 granting a preliminary injunction.

Separate appeals by the defendants, Krantz Manufacturing Co., Inc., and Franklin E. Weaver and William E. Rice, individually and as surviving members of the committee of the creditors of H. Krantz Manufacturing Company, 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 11th day of March, 1918, directing judgment for the plaintiffs on the pleadings and overruling demurrers to the…

Appeal by the defendant, Union Railway Company of New York City, 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 12th day of November, 1917, upon the verdict of a jury for $2,500, afterwards reduced by stipulation to $1,500, and also from an order entered in said clerk’s office on the 1st day of December, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>. Cemeteries — will reserving family rights in private cemetery — abandonment of cemetery by removal of bodies — extinguishment of rights of burial — partition — parties — extinguishing cloud on title.</p> <p>Although a will devising land reserved a privilege to the testator’s family forever of going to and from a private burying ground and burying the-'r dead there “ if they incline so to do,” the will conferred on the testator’s family collective rather than individual and isolated rights which were not of a nature that any of them can sell or assign to one outside the family. Where interments in the private burial ground were discontinued and the bodies already buried were removed to another cemetery by the collective act of the testator’s family, no one of said family retained any further burial privilege or any appurtenant right of way to and from the former burying ground.</p> <p>A holder of a deed of a cemetery lot, however strong may be the wording of the grant and even if it uses terms of inheritance, acquires only a privilege or license exclusive of others to make interments in the lot purchased only so long as the lot remains a cemetery.</p> <p>Hence, after the abandonment of the private cemetery under the circumstances aforesaid, the lands are left subject to sale or partition and the court in a partition action can pass upon the issues involved.</p> <p>In such action of partition the plaintiff may join former holders of burial rights so as to extinguish any cloud upon the title.</p>

<p>Appeal by the petitioner, August Merrill, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 8th day of April, 1917, denying his application.</p>

<p>Insurance — incorporated fraternal benefit society — insolvency — State Superintendent of Insurance entitled to unexpended moneys collected by subordinate lodge — by-laws construed — subordinate lodge merely agent for incorporated grand lodge.</p> <p>Where an incorporated fraternal benefit society became insolvent and the State Superintendent of Insurance was directed to take possession of its property and liquidate its affairs, said Superintendent is entitled to the possession of a fund standing to the credit of a subordinate unincorporated lodge, where under the by-laws the sole objects to which the fund can be applied are the purposes of the incorporated grand lodge after the expenses of the subordinate lodge are paid, and it appears that there are no unpaid expenses of the subordinate lodge.</p> <p>Where the by-laws of said corporation provided that every lodge shall fix a certain sum to be paid monthly or quarterly by every member, from which money the lodge shall defray its own expenses and pay the assessment for endowment, reserve fund, per capita tax and cemetery taxes, moneys collected by a subordinate' lodge not essential to defray its own expenses are held in trust for the grand lodge.</p> <p>Although the subordinate lodge had thirty days from the date of the issue of an assessment call within which to remit its assessment to the grand lodge, an assessment collected belongs to the grand lodge and should be turned over to the State Superintendent of Insurance on the insolvency of the grand lodge, although the said thirty days had not expired. The thirty days given to the subordinate lodge to pay over the moneys was simply a matter of convenience.</p> <p>The- Insurance Law applicable to such corporations contemplates a central body or grand lodge for which subordinate lodges are mere agencies for the collection of funds and the organization of its members.</p>

Appeal by the defendant, Williams Building Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of August, 1917, directing the specific performance of an agreement to purchase real estate upon the decision of the court after a trial at the New York Special Term.

Appeal by the defendant, Childs Company, from a judgment of the Supreme court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of November, 1917, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, Alpheus P. Perry, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 23d day of August, 1917, upon the decision of the court, the jury having been discharged by consent.

Appeal by the plaintiff, Clayton Kellogg, 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 31st day of August, 1917, denying plaintiff’s application for a final decree of divorce in his favor on the ground that he had shown no sufficient cause for his delay of nearly .two years, after the entry of the interlocutory judgment, before making his application.

<p>Appeal by the defendants, Edward Greenbaum and others, from two orders of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 23d day of February, 1918, denying separate motions by the defendants to vacate a judge’s order for their examination before trial, and modifying said order so as to limit such examination as to the subject of the relations between the defendants, with notice of an intention to bring up for review the original judge’s order so modified.</p>

<p>Corporation — contract of original incorporators to pay salaries to each other and to repurchase stock if salary should discontinue — such contract valid only during period corporation is controlled by original stockholders — right to repurchase of stock on discontinuance of salary not enforcible after death of incorporator and accrual of rights of new stockholders.</p> <p>Where a contract for the incorporation of a mercantile business in substance provided that the parties to the contract should be the four directors, that each of them should hold a specified office and receive a certain annual salary, with a further agreement that if the directors should subsequently vote to reduce or increase the salary of any party, or if any party should be defeated for re-election to the directorate and he should not vote in favor of such resolution, he should have the right to have his stock purchased for cash by the parties voting in favor of either of such resolutions, the contract for the repurchase was valid and binding only so long as the parties thereto were the only stockholders of the corporation. Hence when ¿ne of the parties died and his stock was distributed to his next of kin so that they became interested in the corporation, the agreement not to reduce the salary of one of the original incorporators without purchasing his interest became illegal and void if such action of the directors was not for the true interests of the corporation, as otherwise the rights of the new members would be impaired. It follows that where after the rights of new stockholders had accrued, one of the original incorporators became ill and unable to attend to business as he was required to do under the contract, the subsequent action by the remaining directors annulling his salary did not give him a right of action to enforce his option to compel the purchase of his stock.</p> <p>It seems, that as the plaintiff is unable to render any service to the corporation as required except to sit as a member of its board of directors, it is questionable whether the board could lawfully vote bim a salary as a mere incident of such office.</p> <p>It seems, that the question as to the right and propriety of dispensing with the plaintiff’s services because of his ill-health and absence from the business was properly left to the jury.</p> <p>Merbell, J., dissented.</p>

<p>Appeal-by the defendant, Samuel N. Dada, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 23d day of October, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of November, 1917, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by David J. Wright, petitioner, from an order of the Surrogate’s Court of the county of Monroe, entered in the office of said Surrogate’s Court on the 25th day of March,' 1918, holding that the citation herein was not properly served upon an infant party.</p>

<p>Crime — grand larceny, first degree — conviction of defendant for stealing jewelry from pawnshop affirmed — new trial upon newly-discovered evidence denied — evidence — identity of defendant — transactions in presence of defendant while being taken to police station — hearsay.</p> <p>Appeal from a judgment convicting the defendant of grand larceny in the first degree as a first offense after a conviction of burglary in the third degree. The defendant was charged with breaking the window of a pawnshop and stealing jewelry therefrom. Evidence examined, and held, to identify the defendant as the person who committed the crime and to fully justify the conviction.</p> <p>Held further, that a motion for a new trial upon the ground of newly-discovered evidence was properly denied.</p> <p>Where the defendant on cross-examination sought to show that a witness for the prosecution stated in the presence of the defendant and other persons while on the way to the police station that he did not see the man who broke into the pawnshop, etc., although he testified at trial to his identity, it was not reversible error to allow the prosecution to show what occurred on the defendant’s way to the police station. This, because the defendant opened the door to the reception of such evidence. Such evidence is not hearsay where everything testified to took place in the presence of the defendant.</p>

<p>Appeal by the defendant, Peter G. Houck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th day of June, 1917, upon the verdict of a jury for $425, 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 petitioner, William H. Peters, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 25th day of January, 1918, denying his application herein, the questions which he desired to have resubmitted having been already submitted to and voted upon by the electors of the town of New Hartford at the biennial town meeting held in conjunction with the general election on November 6, 1917.</p>

<p>Railroad — negligence — death of locomotive engineer who drove past block signal without stopping — Federal Employers’ Liability Act—■ proof not justifying recovery.</p> <p>A judgment for the plaintiff in an action under the Federal Employers’ Liability Act to recover for the death of a locomotive engineer who ran Ms train at full speed past a mechanically operated block signal and collided with another train will be set aside where the only evidence as to the condition of the signal after the accident showed that it displayed the danger light and there is no proof that either prior or subsequent to the accident it failed to operate properly.</p> <p>A recovery cannot be sustained upon the supposition that the fact that the deceased ran his locomotive past the signal was evidence that the danger signal was not displayed, for there is no presumption that the signal failed to operate properly and the jury should not be allowed to speculate on this issue.</p> <p>Woodward, J., dissented.</p>

<p>Appeal by the defendants, Rome Brass and Copper Company and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 22d day of August, 1917, and also from a decision entered in the office of said Commission on the 22d day of December, 1917, denying the application of the insurance carrier to reopen the case and set aside the award, and also from a decision entered in said office on the 5th day of February, 1918, denying a similar application subsequently made.</p>

<p>Appeal by the defendants, Charles H. Van Burén 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 Ulster on the 5th day of November, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1917, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Reargument of an appeal by Edward Gibbons, an alleged incompetent, and others, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 22d day of August, 1917, denying a motion to set aside the verdict of a jury and confirming said verdict and finding Edward Gibbons incompetent and appointing a committee of his person and property.</p> <p>The notice of appeal also purports to appeal from the verdict and from all the proceedings herein. The appeal by the alleged incompetent is joined in by such of his children as appeared and opposed the proceedings.</p>

<p>Contempt of court — civil contempt for failing to pay over town moneys wrongfully converted — order providing for compromise with defendant — when attorney for the town not guilty of criminal contempt in receiving amount of settlement contrary to previous direction of court.</p> <p>Although in a civil action brought by a town against a former supervisor for the conversion of town moneys the defendant has been adjudged guilty of a civil contempt in failing to pay over, and the court, with the consent of the town authorities, has ordered that he be released from imprisonment on the payment of certain moneys to the county treasurer and the payment of costs to the attorney for the town, which order was opposed by the town’s attorney, the latter is not guilty of a criminal contempt of court by reason of the fact that, disregarding the order and without notice to the justice who made it, he, with the consent of the town, stipulated before another justice that the defendant should be discharged from imprisonment upon the payment of the whole amount of the agreed settlement t.o him as attorney for the town, which order was granted by the other justice, there being nothing whatever to show that said attorney did not have authority from the proper town officers to act for the town and receive the money for his client.</p> <p>It is immaterial that said attorney had other claims against the town besides the costs of said action, for that was a matter which was wholly between the town and himself and has no connection with the matter before the court.</p> <p>It seems, that a mere personal grievance of the judge, however well founded, is not sufficient ground for criminal contempt proceedings. The offense is against the dignity and authority of the court and not the judge personally.</p> <p>The only provision of law for convicting a person for criminal contempt is contained in section 750 of the Judiciary Law.</p>

<p>Intoxicating liquors ■— local option —■ qualification of women to sign petition under chapter 624 of' the Laws of 1917 — failure to register at time of signing — elections — registration — function of board or officer acting upon petition filed under chapter 624 of the Laws of 1917.</p> <p>Women qualified by section 1 of article 2 of the State Constitution, as amended, to vote, are qualified to sign a petition for the submission of local option questions under chapter 624 of the Laws of 1917, although not registered at the time of the signing.</p> <p>Registration does not qualify the voter; it ascertains the place where the vote may be cast and the right of the person to cast it in such place.</p> <p>It is not the function of the board or officer who is to act upon the petition filed under chapter 624 of the Laws of 1917, to determine whether the signers were qualified electors at the time oí the signing, as section 10 of said chapter declares that the petition shall be prima facie evidence that the signers were so qualified.</p>

<p>Appeal by the defendants, Hudson Hotel Company and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 19th day of September, 1917, upon the decision of the court after a trial at the Schenectady Special Term.</p>

Appeal by the plaintiff, Hector Bechard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 14th day of April, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order dismissing the complaint.

Appeal by the plaintiffs, James A. Leary and another, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 1st day of February, 1918, overruling their demurrer to a separate defense set up in the answer.

<p>Appeal by the plaintiffs, A. Wellington Peck and another, as executors, from a judgment of the Supreme Court in favor of the defendant, entered in the office of- the clerk of the county of Fulton on the 16th day of June, 1917, dismissing the complaint upon the decision of the court after a trial at the Fulton Trial Term before the court, a jury having been waived.</p>

Appeal by the plaintiff, Columbia Distilling Company, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 28th day of December, 1917, dismissing the claim herein on the merits.

Appeal by the defendants, Jesse F. Paddelford 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 Broome on the 26th day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of July, 1917, denying defendants’ motion for a new trial made upon the minutes.

<p>Motion for leave to appeal to the Appellate Division from an order and determination of the Appellate Term of the Supreme Court.</p>

Appeal by the defendant, Michael Burke, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 24th.day of November, 1917, upon the verdict of a jury for $125, and also from an order entered in said clerk’s office on the 3d day of December, 1917, denying defendant’s motion for a new trial made upon the minutes. The defendant is engaged in the trucking business, owning trucks and horses and employing men to operate them.

Appeal by the defendant, Bertha Schwartz, from, a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, Part Two, rendered against her on the 14th day of November, 1917, convicting her of a violation of the Liquor Tax Law, and also from an order entered in the office of the clerk of said court on the same day denying her motion for a new trial and in arrest of judgment.

<p>County Court — jurisdiction — test of jurisdiction — amount demanded in complaint.</p> <p>Under section 14 of article 6 of the State Constitution and subdivision 3 of section 340 of the Code of Civil Procedure, the service of a summons and complaint in an action to recover a sum of money only, the former not specifying any sum for which judgment would be taken in case of default, but stating such amount by the use of the words “ for the relief demanded in the complaint,” which was for the sum of $2,000, with interest, costs and disbursements, does not confer jurisdiction upon the County Court.</p> <p>The demand for judgment contained in the complaint is the sole test of jurisdiction of the County Courts, which are without power to grant an order permitting the plaintiff to amend the demand for judgment as set forth in the complaint by reducing the amount.</p>

<p>Deposition — examination of defendant before trial.</p> <p>Appeal from an order denying a motion to vacate an order for an examination of the defendant before trial. The action involved the title to stock which was deposited for the benefit of the stockholders of a certain corporation. Moving papers examined, and held, that the motion to vacate the order for examination should be granted with leave to the defendant to renew the same upon papers which shall specifically state the issues upon which defendant may be examined.</p>

Re argument of an appeal by the City of New York and others, from parts 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 confirming an award of commissioners in street closing proceedings.

Appeal by the plaintiffs, Leigh Best and another, 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 6th day of December, 1917, as resettled by an order entered in said clerk’s office on the 19th day of February, 1918, as directs that certain questions be stated for trial by a jury.

<p>Tax — transfer tax — domicile of decedent — burden of proof — evidence not establishing domicile in this State.</p> <p>Appeal by administrators from an order of the Surrogate’s Court in a transfer tax proceeding based upon a determination that the decedent at the time of his death was domiciled in the State of New York. The decedent, a man of wealth, had at various times maintained establishments in other States and had traveled extensively. Evidence examined, and held, that the decedent at the time of his death was not a resident of the State of New York but was a resident of Kentucky and that his estate should be appraised as that of a non-resident.</p> <p>In determining a decedent’s domicile his intent is the controlling consideration and this will be determined by his history, manner of life, activities and interests, rather than by his declarations, either written or oral.</p> <p>Where in a transfer tax proceeding the Comptroller claims that a decedent abandoned one residence and adopted another, the burden of proof rests upon him.</p>

Appeal by the defendant, JEtna Accident and Liability Company of Hartford, Conn., from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on or about the 10th day of January, 1918, reversing a judgment of the City Court of the City of New York and reinstating the verdict of a jury in plaintiff’s favor.

<p>Appeal by the plaintiffs, Union Real Estate Company and others, as executors, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 31st day of July, 1917, dismissing the complaint upon the decision of the court after a trial at the Bronx Special Term.</p>

<p>Appeal by the defendant, Isaac J. Heyman, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on or about the 16th day of November, 1917, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in defendant’s favor.</p>

<p>Bankruptcy — decree in equity founded upon willful and wrongful detention of property by defendant — judgment not discharged by bankruptcy — statute construed — form of action immaterial.</p> <p>Where the judgment in a suit in equity determined that the defendants willfully and wrongfully detained from the plaintiff the possession of certain stock and other property which he had sold to one of the defendants upon his express agreement not to assign or sell the same until the full consideration was paid, but that said defendant, in violation of the agreement, transferred the property to his codefendant who purchased the same with knowledge of the agreement, the judgment was not discharged by the bankruptcy of the judgment debtor who purchased the property. Hence, proceedings supplementary to an execution on said judgment will not be stayed.</p> <p>Under the Bankruptcy Act, as amended, a judgment is not discharged if the act upon which it was founded was characterized by legal malice and willfully done, and the form of the action is immaterial. The court may resort to the entire record to determine the wrongful character of the act.</p>

Appeal by the plaintiffs, Hopeton Drake Atterbury Quaid 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 19th day of December, 1917, striking the action from the Special Term calendar and remanding it to the Trial Term as an action at law triable by jury. The order was made by the presiding justice at Special Term at the close of plaintiffs’ case.

Appeal by Edward H. Childs, referee, 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 March, 1918, as resettled by an order entered in said clerk’s office on the 1st day of April, 1918, denying his motion to open an order and for leave to be heard upon defendants’ motion to retax costs by reducing the item of the referee’s fees.

<p>Bills and notes — authority of officer of corporation to indorse and deposit checks — when indorsement not forgery, although check was wrongfully diverted by officer of corporation — when subsequent holder in good faith not liable for conversion.</p> <p>A secretary and bookkeeper of a corporation who had authority to make bank deposits by stamping the name of the corporation upon the cheeks and depositing them to the credit of the corporation, did not make a forged indorsement where, having used the stamp, he wrote his own name as secretary and cashed a check with a third person who afterwards deposited it in his private bank account.</p> <p>The unauthorized diversion of the check by the secretary of the corporation did not make his indorsement a forgery, nor render the bank with which the check was subsequently deposited guilty of conversion, if it took the same without notice of the diversion.</p>

<p>Assignment — order upon fund — rights of assignee measured by performance by assignor.</p> <p>Where a contractor entitled to payment of installments as the work progressed, gave an order that the owner pay a certain amount to the plaintiff, the'order worked an assignment of the fund to become due, but only to the extent that the funds were earned by the contractor by due performance of his contract.</p>

<p>Motion by the Brooklyn Bar Association, petitioner, to confirm report of official referee.</p>

<p>Municipal corporations — city of Buffalo — erection of city and county hall — raising funds for said purpose — trustees not entitled to accumulate unexpended balance.</p> <p>Although the statute under which the trustees of the city and county hall in the city of Buffalo are appointed, which provides that the cost of said building shall be borne equally by the city and county, directs the supervisors of the county and the common council of the city to raise yearly the sums required for the erection of said building and place the same in the treasury of the city and county subject to the order of the trustees, the latter are not entitled to compel by writ of mandamus the raising of the full sum which the trustees desire for the yearly work, where it appears that a large sum has accumulated from unexpended former appropriations and is now on deposit in various banks to the credit of the trustees. The certificate of the trustees should cover only such amount of money as is reasonably necessary for the purposes enumerated in the statute for the ensuing year, and the moneys appropriated should remain in the treasuries of the city and county until actually needed for expenses incurred.</p>

Appeal by the relator, Marquis Curtis, from an order of the County Court of Cayuga county, entered in the office of the clerk of said county on the 8th day of April, 1918, dismissing the writ of habeas corpus herein and remanding the relator to custody.

Appeal by the defendant, Cleveland, Cincinnati, Chicago and St. Louis Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of February, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office of the 25th day of July, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Chris Dalury, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 18th day of December, 1917, upon a dismissal of the complaint at the opening on a trial at Trial Term.

Appeal by the defendant, Harry Murray, from a judgment of the County Court of Orange county, entered in the office of the clerk of said county on the 23d day of November, 1916, convicting him of the crime of rape in the first degree as a second offense and sentencing him to State prison for twenty years, and also from an order entered in said clerk’s office on the 28th day of November,-1916, denying defendant’s motion for a new trial made upon the minutes.

<p>Railroads — negligence — injury to pedestrian by street car — contributory negligence — attempt to cross street in front of approaching car — calculation as to chance of crossing safely — necessity of running in order to cross — sudden acceleration of car — bill of particulars — evidence — extent of injuries.</p> <p>A verdict based on a finding that a plaintiff who was struck by an approaching car while crossing a street in the city of New York was free from contributory negligence is against the weight of evidence where it appears that he was watching the approaching car' and was struck before he succeeded in crossing the track although there was no emergency.</p> <p>It is negligence to cross a street in front of an approaching car with a nice calculation of chances, especially where it is necessary to run in order to cross safely.</p> <p>It seems, however, that the rule aforesaid would not obtain if the calculations of the plaintiff were upset by a sudden acceleration of the car as it approached him.</p> <p>Evidence examined, and held, insufficient to show that the car which struck the plaintiff was suddenly accelerated and that a finding that the plaintiff was free from contributory negligence was against the weight of evidence and that a new trial should be granted.</p> <p>It seems, that a bill of particulars which specifies an injury to the plaintiff as “ fracture of clavicle ” does not limit the proof to the fracture of one clavicle only, especially where there is to be a new trial so that the defendant cannot be taken by surprise.</p>

Appeal by Anna W. Tompkins from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of May, 1918.

Appeal by the plaintiffs, Maurice W. Metzler 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 Nassau on the 15th day of November, 1917, with notice of an intention to bring up for review an order entered in said clerk's office on the 22d day of October, 1917, directing a dismissal of the action, and also an order entered on the 8th day of November, 1917, denying their motion for a rehearing of…

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 Westchester on the 13th day of August, 1917, upon the verdict of a jury for $49,000, and also from an order entered in said clerk’s office on the 13th day of September, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Elizabeth Whitlock, from a judgment of the County Court of Tompkins county, rendered against her on the 12th day of October, 1917, convicting her of the crime of arson in the third degree.

Appeal by the plaintiff, Gertrude Burdick, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 13th day of March, 1918, denying her motion to punish the defendant for contempt of court and granting the defendant’s motion to modify a final decree of divorce.

Appeal by the petitioner, John J. Gardiner, 'as Deputy State Superintendent of Elections, from an order of the County Court of Ulster county, entered in the office of the clerk of said county on the 26th day of November, 1917, dismissing his petition herein.

<p>Husband and wife — separation — evidence not justifying decree.</p> <p>Action brought by a wife against her husband to obtain a decree of separation from bed and board. Evidence examined, and held, insufficient to support a decree of separation.</p> <p>While married persons may voluntarily separate if they wish to do so, they can obtain a decree of separation only for the causes specified in the statute, which does not include incompatibility of temper leading to domestic quarrels.</p>

Appeal by the __ claimant, Rose Campbell, from a determination of the State Industrial Commission, entered in the office of said Commission on the 12th day of December, 1917, disallowing the claim for compensation herein.

<p>Decedent’s estate — action to compel return to estate of savings bank accounts transferred by deceased to her cousin — fraud and undue influence — evidence — burden of proof.</p> <p>In an action against the widow and executrix of a cousin of the deceased, to compel the return to her estate of savings bank accounts originally standing in her name, it appeared that two years prior to her death she changed the deposits in two banks from her own name to her name in trust for her cousin, and at the same time transferred another account to a joint account in favor of herself or her cousin. Her cousin, the defendant’s testator, died one week after the deceased, who it is claimed was of weak intellect and was unduly influenced to transfer the accounts by the defendant’s testator.</p> <p>'Held, that if the defendant’s testator were now living, the burden would rest upon him of showing that the transfers were freely made, and that the transactions so far as his conduct was concerned were fair and honest, and the same burden now rests on defendant, his widow and executrix;</p> <p>That the evidence conclusively establishes that there was no fraud or undue influence on the part of the defendant’s testator, and that the complaint should be dismissed on the merits.</p>

<p>Appeal by the defendant, David L. Schwartz, 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 29th day of June, 1917, upon the decision of the court after a trial before the court without a jury.</p>

<p>Appeal by the plaintiff, United States Printing and Lithograph 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 22d day of November, 1917, sustaining a demurrer to the third amended complaint.</p>

<p>Municipal corporations — street opening, city of New York — taxpayer’s suit to restrain raising of money by taxation — charter construed — provisions relating to raising of money by issuance of stock does not relate to expense of street opening — city’s share of cost of Queens boulevard to be raised by taxation — when taxpayer’s action does not lie.</p> <p>The suit of a taxpayer to restrain the comptroller and president of the board of aldermen of the city of New York and others from raising moneys by taxation for the city’s share of the cost of opening and extending the Queens boulevard in the borough of Queens, should not be dismissed upon the ground that the question is academic because the acts sought to be restrained have been performed by the defendants, if in fact all things necessary to be done to perfect the tax levy have not been done and the matter involved is severable from the other provisions of the annual tax levy ordinance.</p> <p>It seems, that section 176 of the charter of the city of New York relating to the issuance and sale of corporate stock to raise money to pay assessments imposed upon the city and expenses relates to the acquisition of lands for public purposes other than for streets, avenues and parks, and other uses which have been provided for by the preceding sections of the act.</p> <p>Section 175 of said charter, relating to the replenishment of funds for street and park openings, does not authorize the sale of corporate stock for that purpose, but provides for the replenishment of said fund by taxation. However, a taxpayer is not entitled to maintain a suit to restrain the collection of moneys for the city's share of the cost of opening and extending the Queens boulevard by taxation and to compel the moneys to be raised by the issue of corporate stock, for the Legislature by the amendment to section 247 of the charter required the funds to be raised by taxation to be levied and collected with the taxes upon the real property in said city and the only discretion left with the board of estimate and apportionment was whether the tax should be imposed as due and payable in the year in which the cost and expenses shall be fixed, or in the next succeeding year. The manner of the payment itself has been determined by the Legislature, the time thereof was only left open and this is a subject upon which the taxpayer is not entitled to be heard. Furthermore, a taxpayer has no right to demand either at law or in equity the vindication of a public right unless the violation of that right affects him injuriously in some peculiar maimer in which other members of the community are not equally affected.</p> <p>The present taxpayer’s action is not authorized by section 1925 of the Code of Civil Procedure, for it does not seek to obtain a judgment preventing waste or injury to the property of the city, but relates only to the manner of raising funds to pay an obligation that the city is lawfully required to pay.</p>

Appeal by the plaintiff, Grove E. Warner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, denying his motion for the discontinuance of this action as to him.

Appeal by the plaintiff, Alfred J. Higgins, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 8th day of February, 1918, sustaining a demurrer to the complaint.

Appeal by the plaintiff, George Bullock, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 21st day of September, 1917, dismissing the complaint upon the merits upon the decision of the court after a trial at the Nassau Special Term. Plaintiff is a taxpayer in school district No. 7 in the town of Oyster Bay.

Cross-appeals by Catherine J. Gastmeyer and another, and by William H. Fischer, as executor, from parts of a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 3d day of December, 1917.

First, an appeal by the plaintiff, David Huyler, 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 August, 1917, directing him to serve a further bill of particulars upon the respondent, Frank DeK. Huyler.

<p>Municipal corporations — liability of city for private nuisance — failure to properly maintain jail building — governmental functions — liability of sheriff of New York county.</p> <p>. The city of New York although it owns the land upon which a jail is located and has allowed the building to become so out of repair as to constitute a nuisance, is not liable for personal injuries resulting therefrom, as it was performing a governmental function.</p> <p>The sheriff of the county of New York is not charged with the duty of repair and maintenance of the Ludlow Street Jail under the Greater New York charter, so as to impose upon Mm any liability for personal injuries resulting from the condition of the building.'</p> <p>The repair and maintenance of said jail are placed in charge of the borough president under the provisions of the Consolidation Act.</p>

Appeal by the defendant, Joseph Isaac, 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 November, 1917, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 27th day of November, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Sarah Pernick, from a judgment of the County Court of Bronx county, entered in the office of the clerk of said county on the 20th day of November, 1917, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, The Western Union Telegraph 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 29th day of October, 1917, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Trial Term before the court without a jury.

Appeal by the defendant, The Baltimore and Ohio Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of April, 1917, upon the verdict of a jury for $2,900, and also from an order entered in said clerk’s office on the 19th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Michael W. Larendon and others, 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 19th day of July, 1917, upon the decision of the court after a trial at the New York Trial Term before the court without a jury.

<p>Appeal by the petitioner, Uriah Harris, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of October, 1917, and also from said order as resettled by an order entered in the office of the clerk of the county of Bronx on the 30th day of October, 1917, denying his application, made under section 14 of chapter 1006 of the Laws of 1895, for an order referring it to the commissioners in this proceeding to determine the compensation that should be made to him for the closing of the Albany Post road.</p>

Appeal by the defendant, Marina Quezada de Willis, 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 January, 1918, continuing a temporary injunction.

Appeal by the defendant, Raphael Allocca, from a judgment of the County Court of Queens county, entered in the office of the clerk of said county on the 7th day of December, 1913, convicting him of the crime of murder in the second degree.

Appeal by the defendant, Union Railway Company of New York City, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of December, .1917, denying defendant’s motion to change the place of trial herein from the county of Westchester to the county of Bronx on the ground of the convenience of witnesses.

<p>Real property — vendor and purchaser — suit for specific performance — failure of vendor to insure title as agreed bars specific performance — counterclaim — recovery of earnest money on' inability of vendor to insure title.</p> <p>Where a vendee, having an option to purchase lands within a specified time, insisted as a new condition that the vendor should insure the title with a specified title company and the vendor accepted said condition it became part of the contract.</p> <p>Where the vendor at the day set for passing title did not furnish the insurance aforesaid he cannot maintain a suit for specific performance. Moreover, where the vendee was willing to accept title under the option, except for the fact that the vendor was unable to insure the same as agreed, the vendee performed her part" of the contract and when sued for specific performance is entitled to recover on a counterclaim for earnest money paid although it was to be retained by the vendor as liquidated damages if the vendee did not exercise the option to purchase, and she may also recover for moneys paid out on account of the title. Blackmab. J., dissented in part.</p> <p>Appeal by the plaintiff, John .Sterling Drake, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 22d day of January, 1917, dismissing the complaint and granting defendant Grace Wire affirmative relief on her counterclaim, upon the decision of the court after a trial at the Richmond Special Term.</p>

Appeal by the defendant, Max Frensdorf, from part of an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 26th day of April, 1918.

<p>Reference — to take and state account — written interrogatories.</p> <p>Upon a reference to take and state an account the referee has no right to issue written interrogatories and require sworn answers thereto in writing as was the practice before a master in chancery.</p>

<p>Appeal by the defendant, Joseph R. Marquette, Jr., 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 27th day of . April, 1917, upon the verdict of a jury rendered by direction of the court.</p>

<p>Bills and notes — stockbrokers — check of bankrupt paid on forged indorsements — burden of proof to show that alleged agent of bankrupt was authorized to. indorse the check.</p> <p>Where after accounts had been stated between a stockbrokerage firm and the defendant bank the trustee in bankruptcy of the brokers brings an action to recover the amount of two checks made by the bankrupt and paid by defendant upon alleged false indorsements, it is incumbent upon the plaintiff, in order to open the account, to show fraud or mistake, and the burden of proof is upon him to show that one who handled a speculative account for the payee, indorsed said checks and applied the proceeds in adjustment of the accounts of other customers, was authorized to indorse said.checks.</p> <p>Where an agent claims authority to indorse the name of his principal on negotiable instruments, the clearest kind of proof should be required as to the scope and purposes of the agency.</p> <p>Evidence considered, and held, that an order setting aside a verdict in favor of defendant, on the ground that the one who indorsed .the checks had no authority so to do, under section 38 of the Negotiable Instruments Law. which declares that a signature of any party may be made by a duly authorized agent, will be affirmed.</p>

<p>Motion by the defendant, J. Lewis Weinberg, for a reargument or for leave to appeal to. the Court of Appeals on an affirmance by the Appellate Division without opinion of a determination of the Appellate Term affirming an order of the City Court of the City of New York denying his motion to vacate a body execution.</p>

Appeal by the defendant, Isadore Atlas, from a judgment of the Court of Special Sessions of the City of New York, First Division, rendered against him on or about the 2d day of March, 1917, convicting him of violating section 435 of the Penal Law in that he unlawfully and with intent to defraud exposed for sale to the public generally certain meats which he falsely represented to be kosher meat and as having been prepared under orthodox Hebrew religious requirements.

<p>Crime — inducing woman to live as kept mistress — Penal Law, section 2460, subdivisions 2 and 3, construed — indictment — inducing woman to commit fornication.</p> <p>An indictment which alleges the defendant feloniously enticed a certain woman to reside with him for immoral purposes, she being his kept mistress and not his wife, charges a crime within subdivision 2 of section 2460 of the Penal Law.</p> <p>’ But another count in the indictment which charges the defendant with feloniously inducing and enticing said woman for the purpose of concubinage with him, and a further count which charges him with feloniously inducing said woman for immoral purposes to have sexual intercourse with him, do not state a crime within subdivision 3 of section 2460 of the Penal Law.</p> <p>Subdivision 3 of section 2460 of the Penal Law, making it a crime to “ induce ” a woman for immoral purposes lacks the clarity which is essential to a valid criminal statute.</p> <p>But by eliminating the word “ or ” before the words “ to enter any house of prostitution ” said subdivision 3 of section 2460 of the Penal Law may be freed from obscurity and show an intention on the part of the Legislature only to make it a crime to induce, entice or procure a woman for immoral purposes to enter a house of prostitution.</p> <p>Clarke, P. J., dissented in part.</p>

<p>Railroads — negligence — injury to cattle straying upon railroad tracks — covenant of plaintiff’s lessor to erect and maintain fences — when defendant railroad cannot be charged with negligence, or gross negligence — failure to stop train or slacken speed on discovering cattle upon track.</p> <p>A plaintiff whose cattle were injured by a train of the defendant while straying upon the defendant’s roadbed cannot recover upon the ground that the defendant was negligent in not erecting and maintaining fences along its right of way as required by the statute where, as a matter of fact, the plaintiff’s lessor, pursuant to a covenant with the defendant, bound himself to erect and maintain a suitable fence on either side of the railroad and the plaintiff’s cattle broke through the fence which the lessor had erected. This, whether the covenant was made before or subsequent to the enactment of the statute, so long as the covenant brought about the erection and maintenance of the fence contemplated by the statute</p> <p>Under the circumstances the railroad company was not required by the statute to erect and maintain a second and superfluous fence.</p> <p>The covenant of the plaintiff’s lessor ran with the land and is binding upon him and is a defense available to the defendant.</p> <p>The liability of the defendant railroad was not enlarged by the amendment to section 44 of chapter 140 of the Laws of 1850 made by section 8 of chapter 282 of the Laws of 1854, which provides for Lability for damages to “ any ” cattle, horses, sheep or hogs, nor did said amendment rob the defendant of any rights which accrued to it perforce the covenant aforesaid.</p> <p>As the plaintiff's cattle broke through the fence which the plaintiff’s lessor had covenanted to maintain, they were .estrays and trespassers, and the defendant cannot be held to be wantonly and grossly negligent in not stopping or attempting to stop or slacken the speed of the train when the cows were observed on the track by the engineer.</p>

<p>Appeal by the defendant, Commercial Advertiser Association, 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 8th day of March, 1917, denying its motion for judgment on the pleadings consisting of a complaint, amended answer and the reply thereto.</p>

<p>Appeal by the defendant, Paul Smith’s Electric Light and Power and Railroad Company, from an order of the Supreme Court, made at the Franklin Special Term and entered in the office of the clerk of the county of Franklin on the 21st day of December, 1917, overruling its demurrer to the amended complaint, and also from an "interlocutory judgment entered in said clerk’s office on the same day pursuant to said order.</p>

Appeal by the plaintiff, W. F. Martens & Co., Inc., 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 21st day of September, 1917, dismissing the complaint upon the decision of the court after a trial at the Onondaga Special Term, and also from an order entered in said clerk’s office on the 17th day of September, 1917, denying plaintiff’s motion to vacate and set aside the decision of the…

Appeal by the defendant, The Mutual Life Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Wyoming on the 19th 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 28th day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Morris Newgold, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of December, 1917, granting plaintiff’s motion for judgment on the pleadings, consisting of a complaint and an amended answer, and further directing the defendant The Equitable Trust Company of New York to turn over to plaintiff the sum of $10,000.</p>

Appeal by Stanislaus P. M. C. DeRidder, 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 19th day of April, 1918, denying his motion for leave to sue the temporary administrators herein.

<p>Appeal by the defendant, Otto Wissner, from, a judgment, order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of November, 1917, affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, Second District, and also, as stated in the notice of appeal, from the judgment of the Municipal Court.</p>

Appeal by the defendants, George T. Powell and others, as trustees, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 17th day of December, 1917, upon the decision of the court.

<p>Appeal by the plaintiff, Charles Schweinler, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of October, 1916, setting aside a verdict in favor of the plaintiff and directing a verdict in favor of defendants dismissing the complaint upon the merits, and also from the judgment entered in said clerk’s office on the 3d day of November, 1916, dismissing the complaint pursuant to said order, and also an appeal is taken from said judgment as amended, which amended judgment was entered in said clerk’s office on the 19th day of December, 1916, and from the order amending the same, which was entered in said clerk’s office on the same day.</p>

Appeal by the City of New York and others from a determination of the Public Service Commission of the State of New York for the First District herein, and from the order made in accordance therewith, entered in the office of the secretary of said Commission on the 14th day of March, 1917.

Appeal by the defendant, Mary Elizabeth Post, as executrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of December, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1917, denying defendant’s motion for a new trial made upon the minutes. The action was brought to recover for broker’s commissions.

Appeal by the defendant, Stanley C. Fowler, 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 decision of the court after a trial at the Kings County Trial Term before the court, a jury having been waived, and also, as stated in the notice of appeal, from the decision of the court.

Reargument of an appeal by the defendant, Harriet T. Williams, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 16th day of May, 1917, upon the verdict of a jury for $4,000.

<p>Appeal by the defendants, "Arthur Lyman and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of July, 1917, confirming the report of commissioners of estimate herein.</p>

<p>Tax — transfer tax — bequest to widow who also receives property under deed of trust — when latter transfer takes effect at death — legacy and gift by deed taken together in determining widow’s exemption and rate of taxation.</p> <p>Where a testator, before executing a will in which he left certain property to his widow, gave a deed of trust to the persons whom he afterwards appointed as executors, the income from the trust property to be paid to him. for life and at his death the principal to be paid to his widow if living, but to her appointee by will if she died before such payment, and on. her failure to exercise her power of appointment then the principal to become part of the residuary estate or to be returned to the testator • if his widow died before him, the gift of the trust fund to the widow was not intended to take effect in possession or enjoyment until after the death of the testator, although he did not reserve unconditionally the right of control or revocation.</p> <p>Hence, on the death of the testator leaving the widow him surviving the legacy to her and the gift under the deed of trust should be taken together for the purpose of determining the exemption and amount of the transfer tax; that is to say, there should be only one exemption.</p> <p>The executors on appeal cannot insist that the tax on the transfer of the corpus of the trust should have been imposed against the trustees as such where they did not take the objection in the court below, and moreover there is no merit in such objection as the tax is binding on the widow and will only affect the executors or trustees to the extent that they receive the property against which the tax is a charge.</p>

<p>Separate appeals in each case by the defendants, The Winter Garden Company, Incorporated, and another, from judgments of the Supreme Court, one in each action, entered in the office of the clerk of the county of New York on the 29th day of May, 1917, upon the verdict of a jury, and also from orders entered in said clerk’s office on the 31st day of May, 1917, denying defendants’ motions for a new trial in each case made upon the minutes.</p> <p>The verdict of the jury in the first case was for $15,000, and in the second was for $4,561.75.</p>

<p>Appeal by the defendant, George H De Ronde, 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 19th day of November, 1917, upon the decision of the court after a trial at the Westchester Special Term.</p> <p>The judgment directed the specific performance of a contract for the purchase of real estate by defendant.</p>

Appeal by the tenants, Jesse R. Bloom, and another, from a final order and judgment of the County Court of Greene county, entered in the office of the clerk of said county on the 8th day of December, 1917, removing the appellants from certain premises for non-payment of rent.

<p>Evidence — action by physician for services rendered to defendant’s wife •— admissibility of testimony of non-professional nurse and of physician as to conversations with reference to patient's condition and its cause.</p> <p>In an notion by a physician to recover for services rendered to the defendant’s wife, a non-professional and unregistered nurse is competent to testify as to conversations between the plaintiff, the defendant and herself, as to the patient’s condition and its cause. But testimony by the plaintiff as to such conversations is inadmissible under section 834 of the Code of Civil Procedure, and a judgment influenced thereby should be reversed.</p> <p>It is against publie policy to permit a physician to make such disclosures even in an action to recover for his services.</p>

<p>Appeal by the plaintiff, Jeanette W. Losie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 20th day of February, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the plaintiff’s motion to set aside the verdict and for a new trial.</p>

Appeal by the defendants, John J. Smith and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 15th day of November, 1917.

Appeal by the plaintiff, Giovanna Caltabellotta, from a decree and order of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 26th day of December, 1917, adjudging that appellant is not a party interested in this proceeding, and denying her petition for leave to intervene. ■ ' ■

Appeal by the plaintiff, Frederick E. Benham, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 27th day of December, 1917, upon a dismissal of the complaint by direction of the court at the close of the case.

<p>Appeal by the plaintiffs, Charles M. Durland and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schuyler on the 12th day of December, 1917, upon the decision of the court after a trial at the Schuyler Special Term.</p>

Appeal by the defendant, New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 19th day of September, 1917, upon the verdict of a jury for $2,000.

Appeal by the plaintiff, Charles Edward Vosbury, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 2d day of April, 1918, dismissing the complaint, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 23d day of March, 1918, sustaining a demurrer to the complaint.

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

Appeal by the plaintiff, Edward W. Browning, 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 31st day of January, 1917, upon the report of a referee appointed to hear and determine the issues. Appeal by the defendants, Frederick P. Fox and others, from parts of said judgment.

Appeal by the plaintiff, W. Edson Andrews, from an order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of December, 1917, reversing a judgment of the Municipal Court of the City of New York, Borough of Bronx, Second District, in plaintiff’s favor.

Appeal by the plaintiff, Annie O’Brien, 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 New York on the 23d day of March, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the relator, The City of New York, from part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of the Westchester on the 10th day of July, 1916, as amended by an order entered in said clerk’s office on the 18th day of May, 1917. Appeal by the defendants, Robert H. Neville and others, as assessors, from the whole of said order.

Appeal by the plaintiff, Isidore Lipshen, from an order of the County Court of Kings, county, entered in the office of the clerk of said county on the 8th day,of April, 1918, directing the clerk to tax costs in favor of the defendant. The action was for damages by reason of alleged leakage of water onto plaintiff’s premises. The defendant and plaintiff are both residents of the county of Kings.

Certiorari issued out of the Supreme Court and attested, directed to John J. T. Waldron and others, as surveyors, , and to Robert Adamson, as fire commissioner,… Held: the surveyors hearing counsel for the relator, and one Peter J. McKeon, who presented several technical methods of limiting the fire hazards* which he stated might have been ordered in lieu of the present requirements of the fire department, but no testimony was offered or received upon said survey. Messrs.

Appeal by the plaintiff, The People of the State of New York,, from an order and judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of said county on the 10th day of January, 1918, reversing a judgment of the City Magistrate’s Court of the city of New York which convicted the defendant of a violation of the Code of Ordinances of the city of New York relative to the speed of certain vehicles, and which imposed a fine of…

Appeal by the defendant, Paul Adeler, from a judgment of theJSupreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 13th day of March, 1918, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 19th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Samuel Bonn and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 21st day of June, 1917, and also from a second decision and award which was entered in the office of said Commission on or about the 18th day of January, 1918.

<p>Workmen’s Compensation Law — interstate commerce — test of employment in — injury to laborer while cleaning boiler used to generate current for operation of both intrastate and interstate-trains.</p> <p>The Federal Employers’ Liability Act speaks of interstate commerce not in a technical legal sense, but in a practical one, making the true test of such employment whether the employee at the time of the injury was engaged in interstate transportation or in a work so closely related to it as to be practically a part of it.</p> <p>Where a railroad company maintained boilers at a point in this State in which it produced steam necessary to operate electricity producing machinery, from which it supplied power to both intrastate and inter-. state trains, such boilers are indispensable instrumentalities of interstate commerce, and a common laborer injured while removing soot from one of the boilers was injured in interstate commerce, within the meaning of the Federal Employers’ Liability Act, and hence is not entitled to an award under the Workmen’s Compensation Law.</p> <p>Kellogg, P. J., dissented.</p>

<p>Insurance — fire insurance — when building unoccupied as family residence "within meaning of policy — remedy of mortgagee after breach of policy by mortgagor rendering it void.</p> <p>Where a tenant moved his family from insured property to another house several miles distant, taking with Mm part of Ms household furMture and placing a portion of the remainder in a room wMch he looked and before leaving closed the windows and shutters of the house and nailed them and made an arrangement with his son-in-law, who lived near, to look after the place, and said son-in-law visited the premises every day or two and during the week preceding a fire the tenant and Ms wife went to the house but during said period were staying at Ms son-in-law’s house, a mile and a quarter distant, neither the acts of the son-in-law or of the tenant constituted the house “ a family residence ” within the meamng of a policy of fire insurance providing that said policy “ shall be void * * * if a building herein described * * * be or become vacant or unoccupied and so remain for ten days,” and hence the building must be held to have been unoccupied for a period of more than ten days preceding the fire, so as to preclude a recovery under the policy.</p> <p>There being no contract between a mortgagee to whom the loss if any was first payable and the insurer, contained in or annexed to the policy constituting a mortgagee clause, there can be no recovery by her against the insurer and she must look to the mortgagor and to her lien upon the real estate for the payment of her claim.</p>

Appeal by Harriet M. Dwight and another, as executors, from a decree of the Surrogate’s Court of the county of Greene, entered in the office of said Surrogate’s Court on the 16th day of May, 1917, settling the accounts herein.

Appeal by Harriet M. Dwight and another, as executors, from a decree of the Surrogate’s Court of the county of Greene, entered in the office of said Surrogate’s Court on the 16th day of May, 1917, settling the accounts herein.

<p>Executors and administrators — reference by surrogate of accounts of attorneys — waiver of right to trial by jury — appeal — substitution of attorneys.</p> <p>Where, upon the judicial settlement of the accounts of temporary administrators and of executors, there were certain accounts of attorneys involving a large number of items which the surrogate upon his own motion determined to send to a referee subject to the limitations provided by section 2536 of the Code of Civil Procedure, which order was made without objection, a residuary legatee, having acquiesced in the making of the order and remained passive for practically four months until long after the time for an appeal had expired, waived any right to a trial by jury and is not in a position by appealing from an order denying relief from the order of reference to question the propriety of the original order, of reference.</p> <p>The fact that said legatee subsequent to the original order substituted attorneys does not enlarge its rights.</p>

<p>Appeal by William H. Waters and another from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 6th day of July, 1917, confirming the supplemental report of a referee and surcharging the accounts herein, with notice of intention to bring up for review an order entered in the office of said Surrogate’s Court on or about the 21st day of September, 1911, as resettled by an order entered on or about the 27th day of June, 1913, vacating a decree herein, and also with notice of intention to bring up for review an order entered in said clerk’s office on or about the 13th day of December, 1911, denying a motion to vacate and set aside a prior order, and also with notice of intention to bring up for review an order entered in said office on the 29th day of August, 1916, modifying the first report of the referee herein and remitting the said report for correction.</p>

<p>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 21st day of May, 1917, upon the decision of the court after a trial by consent before a judge without a jury in Westchester county.</p> <p>The judgment was in the sum of $204,347.20.</p>

Appeal by the defendants, Charles E. Pope 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 14th day of February, 1918, denying their motion for judgment on the pleadings consisting of an amended complaint and the answer thereto.

<p>Crime — attempt to commit grand larceny in first degree — felonious and fraudulent attempt to obtain moneys from insurance company on policy — joint indictment — application of provision of policy making it incontestable after one year — conviction only obtainable for crime charged — evidence of conspiracy — acts and declarations of co-conspirators — effect of joint verdict — effect of dismissal of indictment upon liability of other joint defendants.</p> <p>An indictment against M., A. and L. jointly, accusing them of an attempt to commit the crime of grand larceny in the first degree, charged that the defendants, with intent to deprive an insurance company of its money, etc., and to appropriate the same to the use of the beneficiary named in the policy, feloniously, falsely and fraudulently pretended and represented that when the assured applied for a policy he did so for the sole use and benefit of his wife, and that he then promised and undertook to pay the premiums, and that when examined he was in good health and did not then have diabetes, and that a sample of urine which the assured and A. then presented to the medical examiner was a true specimen, and that L. was the lawful attorney and assignee of the beneficiary, and that there was then due and owing to him as such assignee, the amount of the policy and that they did on presenting the claim by collusion and the aid of said false and fraudulent pretenses, etc., attempt to obtain said moneys and to appropriate the same to their own use. It was then charged that the insured did not apply for the insurance in the amount stated, and that the application was not for the benefit of his wife, but was made by and for the benefit of the indicted defendants and other persons. A second count charged the crime at common law.</p> <p>Held, that although the provision of the policy that it should be incontestable except for non-payment of premiums after one year from date rendered it incontestable at the time the proofs of death were presented and when the crime was charged as against a bona fide beneficiary on any ground, it is not available where the policy has been fraudulently taken out by and for the benefit of others.</p> <p>Public policy requires that such provisions of the policy be limited to legitimate policies actually taken out by the assured for the protection of his named beneficiary.</p> <p>A conviction can only be sustained for the crime for which the defendant •has been accused in the indictment on which he has been tried. This is essential both to enable the accused to know what he is called upon to answer, and also to grant him immunity for the further prosecution for the same crime.</p> <p>Where two or more are jointly charged with the crime, whether tried together or separately, a conspiracy to which the defendant on trial was a party may be shown, and then the acts and declarations of any of the eo-eonspirators in furtherance of the conspiracy are admissible. Hence, the court did not err in receiving evidence tending to show a conspiracy to procure the policy, and in admitting declarations of L., M. and others in furtherance thereof not made in the presence of the defendant A., although no conspiracy to procure the policy was charged in the indictment. Since there was no motion to dismiss either count of the indictment separately and the jury rendered a general verdict of guilty, if the evidence is sufficient under either count the conviction should be sustained.</p> <p>Under-the second count of the indictment all of the facts relating to the fraudulent procurement of the policy through a conspiracy to which the defendant A. was a party, although not set out in the indictment, were admissible to show that the presentation of the claim and proofs of death, the final act in the conspiracy, constituted an attempt to commit grand larceny in the first degree by trick and device.</p> <p>The fact that the indictment against M. and L. has been dismissed is no ground for reversing the conviction of the defendant A.</p>

<p>Master and servant — wrongful discharge — counterclaim for moneys due.</p>

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

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

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office January 24, 1918, denying the plaintiff’s motion for reargument of a motion.</p>

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Richmond on the 14th day of February, 1918, dismissing its complaint, and from an order, entered in said clerk’s office on the 8th day of February, 1918, denying a motion to reconsider decision to dismiss the complaint.

Appeal by the defendants from an order of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 18th day of February, 1918, granting the relator’s application for a peremptory writ of mandamus.

Appeal by the New York, Westchester and Boston Railway Company from an order of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 16th day of February, 1918.

<p>Order affirmed, with ten dollars costs and disbursements, on authority of Holland v. Grote (193 N. Y. 262).</p>