Volume 184 — New York Appellate Division Reports

<p>Insurance — indemnity insurance — release of insurance company from liability by settlement by assured without consent of insurer in violation of policy.</p> <p>Where an assured, settles a claim for damages without the consent of the insurance company, in violation of a provision of the policy of indemnity insurance that “ the assured may settle any ease at the company’s expense if the company shall have previously given its consent in writing,” the company is released from all liability to the assured.</p> <p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The dispute is between the assured and the insurer on an indemnity policy written to protect the assured from liability for personal injuries caused by the use of his automobile.</p>

Appeal by the defendants, Seaboard National Bank and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of March, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of March, 1917, denying defendants’ motion for a new trial made upon the minutes.

<p>Attorney at law — suspension from practice — misconduct while acting as trustee.</p> <p>An attorney at law of many years of experience at the bar, suspended from practice for professional misconduct while acting as trustee of estates, in that he dealt personally with a trust estate, mingled the trust moneys with his own, and made a personal profit by receiving an unwarranted commission or bonus for a loan of trust money upon inadequate security, without the knowledge of his client.</p> <p>The fact that by reason of surcharging his accounts the estates of which he was trustee ultimately suffered no financial loss, is not determinative of a proceeding to inquire into his professional conduct.</p> <p>Disciplinary proceedings instituted by the Association of the Bar of the City of New York.</p>

Appeal by the defendant, the New York Times 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 29th day of November, 1916, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, Blanche Realty 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 28th day of March, 1918, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 26th day of March, .1918, denying defendant’s motion for a new trial made upon the minutes.

Cross-appeals by the plaintiff, Walter A. Fullerton, as administrator, and by the defendant, The Northern Bank 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 29th day of January, 1916, upon the report of a referee appointed to hear and determine the issues.

<p>Public health — violation of New York Sanitary Code, section 68 — use of saccharin in soda water — authority of board of health to adopt resolutions with respect to Sanitary Code — constitutional law — police power.</p> <p>Upon the prosecution of a bottling works corporation for a violation of section 68 of the Sanitary Code and a resolution of the board of health, in adulterating bottled soda with saccharin, it appeared that there was a label on the bottle containing the address of the defendant and stating that the contents were “ sweetened with sugar and one one-hundredth of one per cent, of Saccharin.” Section 68 of the Sanitary Code provides “ That an article of food which does not contain any added poisonous or deleterious ingredients shall not be deemed to be adulterated or misbranded in the following cases: First. In the case of mixtures or compounds which may be now or from time to time hereafter known as articles of food, under their own distinctive names, and not an imitation of or offered for sale under the distinctive name of another article, * * *.”</p> <p>The provisions of the Sanitary Code are substantially the same in effect as the Federal Food and Drugs Act and the resolution of the board of health “ That food or food products containing saccharin be deemed adulterated under the Sanitary Code ” was based on the action of the Federal officials in construing the Federal act.</p> <p>Held, on all the evidence, that soda water is not a natural food product and that the alleged use of saccharin comes within the provision of section 68 of the Sanitary Code relating to a mixture of compounds known by their own “ distinctive name;” that the label complied with the requirements thereof, and that, therefore, the conviction should be reversed and the information dismissed.</p> <p>As the resolution of the board of health was not enacted in form as an amendment to the Sanitary Code and as it was not shown that a certified copy was filed with the city clerk as required by section 1172 of the Greater New York charter, as amended, it cannot be given effect as an amendment of said Code nor can it be construed either as modifying or extending section 68 thereof.</p> <p>The only authority of the board of health to adopt resolutions with respect to the Sanitary Code is to carry the provisions thereof into effect.</p> <p>Since saccharin is not injurious to health its use may be regulated but cannot be prohibited under the exercise of the police power and, therefore, the resolution of the board of health was void.</p>

<p>Appeal by the petitioner, Domestic Realty Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of April, 1918, denying its application for an order requiring the comptroller of the city of New York to pay interest on certain awards.</p>

Appeals by the defendant, National Surety Company, in each action from judgments in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 15th day of December, 1917, upon verdicts of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from orders entered in said clerk’s office on the 14th day of December, 1917, denying defendant’s motion for a new trial in…

<p>Practice —• enforcement of order for examination of foreign corporation before trial —• stay of proceedings — such order may not be used instead of procuring testimony by commission — service of order —■ default. t j</p> <p>An order for the examination of a defendant foreign corporation, which has not been personally served as required, can be enforced only by staying the proceedings of the defendant.</p> <p>An order for examination before trial may not be used to require a foreign corporation defendant, having no officer or office or place of business in this State, at its own expense, to bring its officers or employees and its records here for examination, instead of procuring the testimony and evidence by a commission.</p> <p>Where a defendant foreign corporation had no knowledge of the service of an order for examination before trial upon its attorney, until after the time set • for the examination, it was not in default.</p>

Appeal by the plaintiff, Paul Bila, as administrator, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of December, 1917, upon a dismissal of the complaint by direction of the court at the close of plantiff’s case, and also from an order entered in said clerk’s office on the 18th day of December, 1917, granting the motion to dismiss the complaint.

Appeal by the defendant, Eugene Lamb Richards, as trustee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of October, 1916, overruling his demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings consisting of the complaint and the demurrer thereto.

<p>Fraud — action for damages resulting from fraudulent conspiracy to sell stock in fictitious corporation — evidence — competency of admissions by co-conspirator by way of narrative of past facts.</p> <p>Where in an action to recover damages claimed to have been suffered by the plaintiff as the result of a fraudulent conspiracy entered into by the defendants to sell to the plaintiff certain stock of a film company, it appeared that the whole transaction was a deliberate swindle and that the company was a mere paper corporation, evidence of statements made subsequent to the completion of the transaction between the defendant R. .and the defendant W. in which R. had said to W. that he was in danger of going to jail because he had secured money from the plaintiff, and that W. and G-. & T. were under an obligation to save him because they had kept most of the money, and that W. then went to G-. & T.’s office and returned with money which was used for the purpose of obtaining an option on the picture, was competent as against W., because it was a statement made in his presence and apparently acquiesced in by him, but it was not competent as against T., because after the conspiracy has come to an end, the admissions by one conspirator by way of narrative of past facts are not admissible against the other, and the jury should have been instructed when the evidence was received that they must not consider it as against T. .,</p>

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

<p>Dead bodies — action by wife against crematory for damages for mental suffering due to erroneous certificate as to cremation of body of husband — right of next of kin to possession of body of deceased relative — when recovery may be had for mental suffering.</p> <p>In the absence of testamentary disposition to the contrary a surviving husband or wife or the next of kin have the right to the possession for the purpose of burial or other disposition which they may see fit to make of the body of a deceased relative. They are entitled to such right of possession as a solace and comfort in their time of distress.</p> <p>One who deprives a party thus entitled to the remains of a departed relative from the solace and comfort arising from the privilege of such burial or disposition as they may desire to make, is liable in damages for the mental suffering and anguish to the surviving relative by reason of such deprivation.</p> <p>Where, in an action by a wife against a corporation operating a crematory to which sho had delivered the body of her deceased husband to be cremated and the ashes returned to her in an urn with a certificate stating the time and correct date of the cremation, it appeared that the certificate was erroneous but the jury found under proper instructions by the court that the urn delivered to the plaintiff contained the ashes of her deceased husband, there was no basis for awarding damages to the plaintiff for her mental anguish from the time of the delivery of the ashes to the time of the rendition of the verdict, and a judgment entered thereon should be reversed and a new trial granted.</p> <p>A person may only recover damages for mental suffering which is the natural and proximate consequence of some wrongful act or neglect on the part of the one sought to be charged. Independent of some corporeal or personal injury or breach of duty there can be no mental suffering for which recovery may be had.</p>

Appeal by the defendant, Harry Ullman, from a judgment of the Supreme Court, rendered against him on the 11th day of April, 1918, convicting him of a misdemeanor in wrongfully making a false statement of the result of a canvass at a primary election.

Appeal by the defendant, H. W. Johns-Manville 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 2d day of November, 1917, upon the verdict of a jury, 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.

Appeal by the plaintiffs, Malcolm E. Smith and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of January, 1918, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the plaintiff, James S. Barcus, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1918, denying plaintiff’s motion for an injunction pendente lite.</p>

Appeal by the defendant, The Smith-Worthington Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of January, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Arthur P. Heinze and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1917, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Arthur P. Heinze and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of June, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1917, denying defendants’ motion for a new trial made upon the minutes’.

<p>Appeal by the defendants, Robert E. Lane and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1918, upon the verdict of a jury, and also from the corrected judgment entered in said clerk’s office on the 18th day of January, 1918, and also from an order entered in said clerk’s office on the 16th day of January, 1918, denying defendants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 14th day of January, 1918, granting plaintiff an extra allowance.</p>

<p>Attorney at law censured for lack of supervision over operations of collection clerk.</p> <p>Attorney at law censured for lack of supervision and care over the operations of his clerk in charge of the collection branch of his business resulting in the clerk’s misappropriation of the funds of clients which, however, were repaid by said attorney within a reasonable time. There was no evidence of improper motive on the part of the attorney.</p>

<p>Appeal by the petitioner, William Haydorn, 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 April, 1918, denying his motion for a peremptory writ of mandamus.</p>

<p>Corporations — mortgages — waiver of strict performance of mortgage executed to secure bonds — necessity for presentation and demand of payment — failure to acknowledge instrument declaring principal due.</p> <p>Where a mortgage executed by a corporation .to secure coupon bonds thereafter issued provided that after a continuous default in payment of interest for a period of six months a majority in interest of the bondholders might declare the principal sum due by an instrument in writing, signed and acknowledged, the mortgagor cannot be declared in default without presentation and demand of payment after the holders of a majority of the bonds have waived the strict performance of the provisions of the mortgage by extending the time of payment of the coupons. An election to declare the principal sum due not acknowledged as required by the terms of the mortgage is insufficient.</p>

Appeal by the defendant, Fernando E.. Carrero, 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 May, 1918, denying his motion to vacate a warrant of attachment herein.

<p>Appeal by the plaintiff, Frances Middleton, 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 21st day of April, 1914, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of April, 1914, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Realty Advertising and Supply Company, from a determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of January, 1918, affirming a judgment of the Municipal Court of the City of New York, Borough of Manahattan, Ninth District, dismissing the complaint.</p>

Appeal by the defendant, Otto M. Kohn, from an order of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of February, 1918, denying his motion for judgment on the pleadings consisting of an amended complaint and the demurrer thereto.

<p>Landlord and tenant — action for breach of covenant in lease — pleading — refusal of landlord to allow tenant to install power plant — damages — speculative profits from sale of electric current to landlord — liability of landlord to comply with order requiring installation of fire alarm signal system enacted after execution of lease — failure of landlord to comply with provisions of lease for arbitration of disputed questions.</p> <p>Where in an action by a tenant for the breach of a covenant in a lease under which the defendant landlord agreed with the plaintiff that it would comply with all reasonable orders and regulations of the New York Insurance Exchange and of the New York Board of Fire Underwriters, the plaintiff merely alleged the making of the lease, the provisions of the covenant and that it was damaged by the defendant’s breach thereof, and refused an offer to amend its complaint so as to allege the defendant’s refusal to install a sprinkler system as ordered by the city authorities, the cause of action was properly dismissed as the complaint set forth merely inferences or conclusions without facts showing a breach.</p> <p>In an action for the breach of covenants and agreements by a landlord in refusing to permit its tenant to install, at its own expense, an electric power and light generating plant, the profits which the plaintiff might have made by furnishing power to the defendant for a period of twenty years, or the duration of the lease, are too problematical and speculative to furnish a basis for damages.</p> <p>The mere fact that for the first or second year of the lease a profit might have been made is no basis for finding that similar profits would have been made for the remaining period of the lease.</p> <p>Since the defendant’s sole liability under such covenant was limited to the taking of sufficient power from the plaintiff to enable it to heat and light the building, run the elevators and take general care of the premises, and since it had offered the plaintiff requisite space in which to install its power plant and had further offered to make a contract to use continuously a minimum of current sufficient for its purposes, it had complied with all its obligations and plaintiff had no cause of action.</p> <p>Where, after the execution of the lease of a building as a factory, the industrial board of the city of New York demanded that such building be equipped with a fire alarm signal system because of the nature of the building itself and not because of the business therein conducted by the plaintiff, it was the duty of the landlord to comply with said order at its own expense, notwithstanding a covenant in the lease that the tenant would faithfully fulfill and comply with all reasonable orders, rules iand regulations of the State, municipal or Federal authorities. '</p> <p>In an action by a tenant against its landlord for breach of covenants of the lease a counterclaim alleging that the plaintiff had violated a provision of said lease by making structural alterations in the premises should be dismissed where it is neither alleged nor sought to be proved that the landlord had complied with the express provisions of the lease for the arbitration of disputes between the parties and the termination of the lease for persistent violation of covenants.</p>

Appeal by Ellen Cogan Meanor and others, contestants, from a decree of the Surrogate’s Court of the county of Bronx, entered in the office of said Surrogate’s Court on the 23d day of January, 1918, admitting to probate a paper purporting to be the last will and testament of John H. Cogan, deceased.

Appeal by the plaintiff, Irving Rosenbaum, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of March, 1918, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also, as stated in the notice of appeal, from the decision of the court dismissing the complaint.

Appeal by the defendant, Albert S. Owens, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of February, 1918, denying his motion for judgment on the pleadings, consisting of an amended complaint and the demurrer thereto.

Appeal by the defendant, Springfield L. I. Cemetery Society, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of February, 1918, denying its motion for judgment on the pleadings, consisting of an amended complaint and a demurrer thereto.

Appeal by the defendant, Thomas E. Colby, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of February, 1918, denying his motion for judgment on the pleadings, consisting of an amended complaint and a demurrer thereto.

Appeal by the defendant, American Raw Silk Company, Inc., from a judgment 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 16th day of November, 1917, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District.

Appeal by the plaintiffs, Orestes De Martini and others, from an interlocutory 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, sustaining a demurrer to the complaint upon the grounds that it is insufficient in substance and that there is a defect of parties defendant.

Appeal by the defendant, James C. Bishop, appearing specially, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of May, 1918, resettling a prior order and adjudging respondent guilty of criminal contempt in willfully disobeying a writ of habeas corpus, with notice of an intention to bring up for review an order entered in said clerk’s office on the 21st day of January, 1918,…

Appeal by the plaintiff, The American Metal Company, Ltd., 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 January, 1918, sustaining a demurrer to the complaint.

<p>Appeal by the defendant, the Massachusetts Bonding and Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 31st day of October, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 30th day of July, 1917, modifying a prior order fixing and assessing a tax herein.

<p>Workmen’s Compensation Law — appeal from award — time of notice — sufficiency of notice — letter by insurance carrier constituting notice.</p> <p>A notice of appeal from an award by the State Industrial Commission not served within thirty days from the service of the notice of the award is ineffectual.</p> <p>A letter by an insurance carrier to the State Industrial Commission which in its first paragraph merely gives notice of an intention to appeal but in the concluding sentence uses these words “ in order to be on the safe side I am filing this notice of appeal,” should be regarded as a sufficient notice.</p>

Appeal by the defendant, Bradley Contracting Company, from an award and order of the State Industrial Commission, entered in the New York city office of said Commission on the 4th day of January, 1918, awarding compensation up to January 18, 1918, and continuing the case and directing the employer to pay the amount of the award in the office of the cashier of the said Commission.

Cross-appeals by the plaintiff, Charles Leopold, and 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 25th day of April, 1917, upon the verdict of a jury, and also an appeal by the defendant, The City of New York, from an order entered in said clerk’s office on the 26th day of April, 1917, denying its motion for a new trial made upon the minutes.

<p>Sale — contract for sale of goods to be delivered monthly as called for by buyer—damages — failure of buyer to make demand fdr monthly shipments.</p> <p>Where a contract for the sale of goods gave the buyer the power to call upon the seller to deliverfifteen carloads within twelve calendar months in fairly equal monthly quantities, but if the minimum for any month shall not be called for, the buyer shall not be allowed thereafter to demand the same, the buyer cannot recover as for a breach of contract, for the failure of the seller to deliver a shipment of goods for a particular month, if no demand for shipment in that month was made by the buyer. But it was error to allow the buyer damages for two carloads not shipped when there was only one month in which the buyer made no demand for shipment, as one carload would be the minimum demandable under the contract.</p>

<p>Corporation — suit to compel officers of corporation to account for excessive salaries received — right of minority stockholders to maintain such action — individual officers required to account — , appropriation of corporate moneys to defend action — costs.</p> <p>Action by the minority stockholders of a foreign corporation to compel certain officers of the company to account for moneys received as salaries which are alleged to have been both illegal and excessive. It appeared that the corporation, which owned coal mines, had leased the same for long terms and the only business actually carried on was the collection of the rentals. Evidence examined, and held, that the defendants, majority stockholders, were not justified in voting themselves increased salaries which were, in fact, grossly excessive under the circumstances, and that they should be compelled to account therefor.</p> <p>Under the well-settled principle of equity jurisprudence it is competent for the court to require an accounting for salaries paid to the officers of a corporation in excess of a fair and reasonable value for the services performed.</p> <p>In an action by minority stockholders to compel the repayment of such excessive salaries the individual defendants may be required to account for the salaries received by them.</p> <p>However, it was proper for the directors of the corporation to adopt a resolution appropriating $1,000 for the defense of an action against the corporation where the plaintiffs asked for the appointment of a receiver pendente lite.</p> <p>The plaintiffs in such action are entitled to recover the reasonable costs and expenses of maintaining the same where the prosecution of such action by the corporation itself was prevented by the majority stockholders.</p>

<p>Appeal by the defendant, Jacob Polstein, from a judgment of the County Court of Bronx county, entered in the office of the clerk of said county on the 1st day of June, 1917, convicting him of the crime of manslaughter in the second degree, and also from the orders forming part of the judgment roll, and from an order denying defendant’s motion to set aside the verdict and for a new trial, and also from an order denying his motion in arrest of judgment.</p>

Appeal by the plaintiff, Harry Strauss, 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 Bronx on the 21st day of December, 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.

Separate appeals by the defendants, Florence Goldstein and another, from a judgment of the Supreme Court in favor óf the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1917, upon the verdict of a jury for $10,000, and also an appeal by Florence Goldstein from an order entered in said clerk’s office on the 20th day of December, 1917, denying her motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Manhattan Shirt 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 21st day of December, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of January, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Ada Florence Curtis and others, from parts of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 1st day of February, 1918, upon the report of a referee appointed to hear and determine the issues.

Appeal by the plaintiff, Josephine Finucane, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of Erie on the 30th day of July, 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.

<p>Public service corporations — gas and electricity — right of gas company to increase rates without approval of Public Service Commission — stipulation construed.</p> <p>An incorporated gas company which has filed with the Public Service Commission a new schedule increasing its rates to take effect upon a certain date is entitled by virtue of the statute to increase the rate and make the increase effective thirty days after the filing of the schedule, even though the Public Service Commission has not yet sanctioned the increase and a proceeding involving that issue is still pending.</p> <p>In this respect gas companies differ from railroad companies, for as to the latter a proposed increase of rates may be suspended by the Public Service Commission so that the increase will not take effect until the Commission, after a hearing and investigation, has determined that the proposed increase is proper.</p> <p>Stipulation made between a gas company, the Public Service Commission and the city of Buffalo examined, and held, that the gas company did not bind itself not to increase its rate before such increase should be approved by the Public Service Commission, or agree not to collect the increased rates after the time limit allowed by the statute.</p>

Appeal by the defendant, The Connecticut Fire Insurance Company of Hartford, Connecticut, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Genesee on the 27th day of October, 1917, upon the decision of the court after a trial before the court without a jury.

<p>Appeal by the plaintiff, Empire Cream Separator Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 7th day of February, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the 16th day of January, 1917, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Landlord and tenant — liability of landlord for injury to pedestrian by stepping on cover of coal vault — evidence.</p> <p>In an action against a landlord to recover for personal injuries sustained by stepping on the cover of a coal vault in the sidewalk, evidence that at the time of the accident there was no chain attached to the cover does not justify the jury in inferring that the same condition existed at the time of the lease, where the defendant’s treasurer testifies that there was a proper fastening at that time.</p>

<p>Chattel mortgage — conditional sale — validity of provisions in contract affecting procedure by statute — provision in contract for retaking of property invalid — validity of provision permitting seller to elect to take chattel mortgage upon acceptance of property.</p> <p>Terms in a contract for the conditional sale of property waiving or thwarting the procedure provided by the Personal Property Law are against public policy.</p> <p>Provisions in a contract for the conditional sale of personal property for the retaking thereof are void, and their place will be supplied by the provisions of the statute.</p> <p>A provision in a contract for conditional sale that the seller may elect to request a chattel mortgage upon the delivery of the property is valid and effective, where the seller did so elect dining the time the property was under demonstration so that the security of the mortgage was effective at the time of the acceptance of the property and rendered the provision for the conditional sale and for action in case of default without effect.</p>

Appeal by Louis R. Warren, petitioner, from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 4th day of March, 1918, denying the petitioner’s application for letters of administration c. t. a. upon the estate of John H. Englebirt, deceased.

<p>Appeal by the plaintiff, Dudley Barrington, 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 28th day of July, 1917, upon a dismissal of the complaint by direction of -the court at the close of plaintiff’s case after a verdict in plaintiff’s favor had been rendered by the jury in the sum of $1,000.</p>

<p>Real property — municipal corporations — suit to restrain city from opening public street through plaintiff’s lands — nominal damages where plaintiff has only naked fee subject to private easements — injunctions — when rights of condemnation may be adjudicated in suit in equity — costs.</p> <p>Where lands are burdened with a private right of way in the nature of an easement, coextensive with the bounds of a proposed city street, so that the owner has only a naked fee, he is entitled only to nominal damages when the lands are subjected to the additional use as a public street.</p> <p>A court-of equity is not required to issue an injunction to protect a mere technical right.</p> <p>Although a city in attempting to open a public street acted upon the petition of persons having private rights of way over the same, it had no right to subject the lands to the further burden of a public street without making compensation to the owner.</p> <p>Where the owner of a naked fee in such lands sues in equity to enjoin the the city from entering upon said premises to open them as a public highway the respective rights of the parties may be adjudicated in said suit and provisions may be made for acquiring the lands without resorting to condemnation proceedings.</p> <p>Certain findings disapproved and reversed.</p> <p>Held, that the plaintiff is entitled to costs, unless the defendant pay nominal damages with the costs of the action, including the costs of an appeal. Foote and Htjbbs, JJ., dissented, with memorandum.</p>

Appeal by the defendants, Albert E. Sager 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 Monroe on the 27th day of April, 1917, upon the decision of the court after a trial at the Monroe Special Term, and also from an order entered in said clerk’s office on the 28th day of December, 1916, granting plaintiff an extra allowance.

Appeal by the plaintiff, Morris Lipedes, from an order of the Supreme Court, made at the Onondaga Trial Term and entered in the office of the clerk of the county of Onondaga on the 5th day of April, 1918, granting defendant’s motion for a nonsuit and dismissing the complaint at the close of the case upon a trial before the court and a jury. Decision on the motion for a nonsuit was reserved by consent and.the verdict of the jury was taken. The jury found in plaintiff’s favor.

<p>Motion by the defendant to dismiss the appeals in the above-entitled cases.</p>

Appeal by the defendant, Fred Mietz, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of said county on the 18th day of June, 1917, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 8th day of August, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John L. White, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 7th day of December, 1916, upon the decision of the court dismissing the complaint after a trial at the Chemung Special Term.

Appeal by the plaintiff, Timothy Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 26th day of March, 1917, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 23d day of March, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Selwyn Realty Corporation from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1918, denying its application to have a notice of lien vacated and canceled of record.</p>

<p>Constitutional law — eminent domain — municipal corporations — condemnation of land by city of Rochester — charter provision requiring one of the commissioners of appraisal to be a resident of the city is unconstitutional where lands outside the city are to be taken — failure of charter to give right to hearing — due process of law — jurisdiction of common council — right of appeal with added burden of giving bond.</p> <p>Section 438 of the charter of the city of Rochester, requiring that at least one of the commissioners of appraisal to be appointed where lands are to be taken by said city by eminent domain shall be a resident and freeholder of said city, is unconstitutional in a case where lands outside the city limits are to be condemned, being in violation of the provision of the State Constitution clothing the court,with plenary power to appoint not less than three commissioners.</p> <p>Moreover, said requirement of the city charter violates the equal protection clause of the Fourteenth Amendment to the Federal Constitution, where the landowners are not residents of Rochester and the lands sought to be condemned are not within the territorial limits of said city.</p> <p>The common council of the city of Rochester is not authorized to legislate to affect lands beyond the territorial limits of the city, and hence has no power to determine the reasonable necessity for condemning lands outside the city for the city water supply. The provision of the charter permitting the common council to determine that question, and especially so to do without notice to the landowners, violates the due process of law provision in the Fourteenth Amendment to the Federal Constitution.</p> <p>Moreover, the provisions of the charter of the city of Rochester relating to such condemnation of lands are unconstitutional in that they make no provision for the confirmation by a court of the report of the commissioners.</p> <p>The provision in the charter that any person aggrieved by the report or award of the commissioners may appeal to the Appellate Division within thirty days after the confirmation by the common council does not give to landowners outside the city their constitutional right of due process of law, for the party appealing must give a bond in the penal sum of $1,000 conditioned for the diligent prosecution of the appeal and for the payment of costs which may be awarded against the appellant.</p> <p>Kruse, P. J., dissented.</p>

<p>• Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 21st day of December, 1917, on appeal from a prior order fixing the transfer tax herein, with notice of intention to bring up for review the intermediate order entered on the 23d day of April, 1917, adjudging that the decedent was a non-resident, and remitting the report to the appraiser for taxation, together with the proceedings on appeal therefrom and in said Surrogate’s Court.</p>

<p>Appeal by Canadian Bank of Commerce 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 17th day of January, 1918.</p>

Appeal by the plaintiff, Claude Cole, from a judgment of the County Court of Sullivan county, entered in the office of the clerk of said county on the 17th day of April, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of May, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by William P. Dunn, proponent, and another, from a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 17th day of December, 1917, denying probate to the alleged last will and testament of John J. Hicks, and also from an order entered in said court on the same day denying appellants’ motion for a new trial on the questions of fact submitted to the jury.</p>

<p>False imprisonment — pleading — allegation as to assault — arrest — duty of citizen to submit to attempted arrest — authority of police officer to make arrest for misdemeanor without warrant —■ justification — drunkenness — malice — damages — additional damages as punishment to defendant for malicious assault.</p> <p>A complaint in an action for false imprisonment which alleges that the defendant, a village police officer, struck the plaintiff upon the head and forcibly took him to the lock-up from which he was released after about twenty-four hours without an arraignment or trial, and that the plaintiff was made sore and sick and was confined to the house for two weeks, only states one cause of action and hence the plaintiff should not be directed to elect between alleged conflicting claims. ■</p> <p>An action for false imprisonment always involves the element of an assault in a technical sense, and if this technical assault is combined with battery, it does not change the character of the action, but merely serves to increase the actual damages sustained by the plaintiff.</p> <p>While it is undoubtedly the better practice on the part of a citizen to submit to an attempted arrest under a pretended authority, and to depend upon the law for a vindication of his rights, he is not bound to do so where the person attempting the arrest is not legally authorized to make it, and the person acting without authority does so at his peril.</p> <p>The fact that a man is a police officer does not make all of his acts official; he is still governed by law and has no authority to make an arrest for a misdemeanor without a warrant, unless the crime is committed in his presence.</p> <p>Evidence held sufficient to justify the jury in finding that the plaintiff was not drunk at the time of the assault, and hence there was no possible justification therefor.</p> <p>Malice is an inference of law from known facts and does not necessarily involve the element of personal ill-will; it is the wrongful act done intentionally without just cause or excuse.</p> <p>The fact that a police officer in making an arrest intentionally and without just cause or excuse struck the prisoner a blow likely to produce his death constitutes malice.</p> <p>In an action for false imprisonment the burden of justifying the act is upon the defendant.</p> <p>Where in such an action it appears that the defendant maliciously assaulted the plaintiff it is proper to allow damages as a punishment to the defendant for the assault in addition to the actual damages sustained by the plaintiff.</p>

Appeal by the plaintiff, Louise Hamburger, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 12th day of February, 1918, sustaining a demurrer to the second amended complaint and dismissing said complaint.

<p>Highways — town — liability for negligence in maintenance of highways — action for death caused by automobile accident on hill resurfaced with “ clay marl ’’ — evidence — expert evidence — imputed negligence — intoxication — liability for accident resulting from common intoxication.</p> <p>The liability of a town for negligence in the maintenance of highways can only arise from the negligence of its town superintendent.</p> <p>In an action against a town for death resulting from an automobile accident,. which occurred on a hill on an ordinary country road, it appeared that the road had been resurfaced for a width of about seven feet by filling in with “ clay marl,” on either side of which there was a space of eight feet suitable for teams and automobiles; that this “ clay marl ” had been rendered slippery by rain for several days preceding the accident, and that the plaintiff’s decedent and his three companions were intoxicated. Held, on all the evidence, that the condition of the road was not such as to render the town liable for negligence.</p> <p>The fact that the superintendent of highways, upon taking office, received a highway manual from the State Highway Department, containing general instructions as to the maintenance of highways, which he followed, was competent evidence. It was also competent to show that he used the “ clay marl ” upon other hills, and that it was in his judgment the best material for such purpose.</p> <p>It was error for the court to hold that expert evidence as to the best material to put upon a hill and the best manner of resurfacing was not admissible. A charge by the court in substance that the negligent and improper management of the car by the one driving could not be imputed to the intestate, was misleading.</p> <p>If sober men embark in a car on a general drinking scheme and each drinks with, participates in and is the cause of the intoxication of the others, they are all equally to blame if the ear is managed by a drunken person, and cannot recover damages which can be traced to the intoxication. Cochbane and H. T. Kellogg, JJ., dissented.</p>

<p>Appeal by The City of New York from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 4th day of December, 1917, confirming the report and award of Damage Commission No. 4, and granting allowances, etc., in this proceeding.</p>

Appeal by the plaintiff, Julian C. LaVin, 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 15th day of December, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Frederick Geller, as executor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1917, confirming the report of a referee appointed to determine the ownership of a fund of $8,000 held by him subject to the order of this court.

Appeal by the defendant, Charles L. Craig, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of April, 1918, granting an application for a peremptory writ of mandamus. The appeal was transferred from the Second Department tó the First Department. (See 184 App. Div. 908.)

<p>Wills — action by mortgagee to enforce deficiency judgments out of proceeds of real estate devised by mortgagor to his wife — defense — increase of rate of interest on bond and mortgage — devise in lieu of dower — motion by plaintiff for judgment on pleadings — when land may be resorted to for payment of debts and legacies — Real Property Law, section 250, construed — pleading — complaint in action to enforce payment of testator’s debts out of real estate devised to his wife.</p> <p>In an action by a mortgagee to enforce a deficiency judgment, a debt of a testator, out of the proceeds of real estate devised to his wife, the fact that the rate of interest was increased on the bond and mortgage by agreement between the plaintiff and the testator is no defense.</p> <p>Nor is it a defense that the devise was made to the testator’s wife in lieu of her dower right in his real estate which was of greater value than the devise and other provisions of the will in her behalf.</p> <p>Where a widow elects to take a devise in lieu of dower she takes it subject to the same liabilities as any other devisee, and if the personalty be insufficient to pay the testator’s debts, or if the land is expressly charged with the payment of debts, her interest is liable to be sold for that purpose.</p> <p>A plaintiff who moves for judgment on the pleadings submits his complaint to the scrutiny of the court.</p> <p>Although an answer does not state facts sufficient to constitute a defense the plaintiff cannot obtain a judgment upon the pleadings unless his complaint states a cause of action.</p> <p>The rule that the primary fund for the payment of debts and legacies is the personal estate of the decedent and that the land cannot be resorted to for that purpose until the personalty is exhausted in the ordinary course of administration and under the statute, is not changed by section 250 of the Real Property Law.</p> <p>Section 250 of the Real Property Law has no application to an action to enforce payment of a debt of a testator out of the proceeds of real estate devised to his wife unless the mortgage was a lien upon the premises devised or debts specifically charged upon the real estate.</p> <p>A complaint in such an action, which fails to allege that the executors of the testator had accounted, or that they did not have sufficient personalty of the estate in their possession to satisfy the plaintiff’s judgment, or that the plaintiff’s claim was presented to the executor and that he had either rejected or refused to pay, is defective.</p> <p>Where, on a motion by the plaintiff for judgment on the pleadings, the complaint is found to be insufficient but no motion for judgment is made by the defendant, the Appellate Division cannot dismiss the complaint.</p>

Appeal by the defendant, Hammerstein Opera 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 20th day of February, 1918, upon the decision of the court after a trial at the New York Special Term, with notice of an intention to bring up for review an order entered in said clerk’s office on the 5th day of December, 1917, denying defendant’s motion for a jury trial of the issues raised by…

<p>Appeal by the defendants, Dellora R. Gates, as executrix, etc., of John W. Gates and another, appearing separately, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of May, 1918, denying a motion to set aside the service of the summons therein.</p>

Appeal by the defendant, Benjamin E. Sandall, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of November, 1917, denying defendant’s motion to vacate a warrant of attachment herein.

<p>War—Soldiers’ and Sailors’ Civil Relief Act construed — stay of entry of possible deficiency judgment in foreclosure.</p> <p>While the provisions of the Soldiers’ and Sailors’ Civil Relief Act should be liberally construed in the interest of those for whose benefit it was enacted, the appellate court should not interfere with the discretion of a justice at Special Term in staying the entry of any possible deficiency judgment against the signer of the bond accompanying a mortgage until six months after the termination of the war, where it appears that the liability of such person, if any, is contingent and that he is a chief yeoman in the naval reserve who has not entirely relinquished his business interests.</p> <p>The court has no power to stay the prosecution of a foreclosure suit under such circumstances.</p> <p>While the court will protect the men engaged in the service of the nation from loss in legal proceedings brought about by their absence in service, the papers should show that the threatened injury is due to their service and consequent inability to protect their interests.</p>

<p>Appeal by the defendant, The President and Trustees of the Village of Monticello, 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 25th day of February, 1918, upon the decision of the court after a trial before the court without a jury at the Sullivan Trial Term.</p>

<p>Appeal by the defendants, Standard Oil Company of New York and another, from an award of the State Industrial Commission, made on the 28th day of November, 1917, and also from an award entered in the New York city office of said Commission on the 3d day of April, 1918, confirming the prior award.</p>

Appeal by the defendants, Underwood Silk Fabric Company, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 20th day of April, 1917.

Appeal by the defendant, John J. Rodgers, from a judgment of the Supreme Court, rendered against him on the 13th day of December, 1917, convicting him of the crime of robbery in the first degree as a second offense.

■ Appeal by the plaintiff, Ethel Mundy, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 13th day of December, 1917, setting aside the verdict of a jury in her favor for $2,500, and also from a judgment of said court entered in said clerk’s office on the 5th day of January, 1918, dismissing her complaint at the close of the case. Stipulation was made consenting to the reduction of said verdict to $2,000.

Appeal by the plaintiff, Nancy H. Bowman, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of Broome on the 18th day of February, 1918, upon a decision of the court rendered after a trial at the Broome Special Term sustaining the demurrer interposed by the defendant to the complaint and dismissing said complaint.

<p>Parent and child — adoption — will — rights of child adopted after making of will and not mentioned therein — Decedent Estate Law, section 26, construed — Domestic Relations Law, section 114, construed.</p> <p>Section 26 of the Decedent Estate Law, providing in substance that where a testator shall have a child bom after the making of a will and shall die leaving such child unprovided for and unmentioned in the will the child will succeed to such part of the parent’s estate as he would take if the parent died intestate, applies to a child legally adopted after the foster parent has made a will which neither mentions nor makes provision for said child.</p> <p>An adopted child of a testator is by the present statute given a status of inheritance equivalent to that of a child bom to the testator, with the exceptions prescribed in section 114 of the Domestic Relations Law.</p> <p>In other words, the Statutes of Descent and Distribution strictly available to those of the blood inure to the benefit of an adopted child under the present statute of adoption.</p> <p>Putnam and Blackmar, JJ., dissented, with opinion.</p>

<p>Appeal by the plaintiff, Andres Lajam, 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 17th day of January, 1918, upon the dismissal of the complaint by direction of the court at the opening.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 9th 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 June, 1917, denying defendant’s motion for a new trial made upon the minutes.

Cross-appeals by the plaintiffs, Anthony Gettins and another, and by the defendants, Catherine Boyle, individually and as executrix, and another, from parts of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of April, 1918, upon the decision of the court after a trial at the Kings County Special Term.

<p>Appeal by the plaintiffs, Charles Rush and others, 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 Westchester on the 13th day of November, 1917, upon the decision of the court after a trial at the Westchester Special Term.</p> <p>The judgment granted defendant a recovery against the plaintiffs on his second counterclaim. It also dismissed the complaint and awarded defendant "control and possession of a certain automobile and a lien thereon. ■</p>

Appeal by Eugene M. Travis 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 Kings county on the 22d day of August, 1918, striking the name of said Eugene M. Travis from the primary ballot.

Appeal by Myra J. Neil and another, legatees, from part of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 4th day of February, 1918, admitting to probate the last will and testament of George E. Neil, deceased.

Separate appeals by the Woodward-Brown Realty Company and others from a final order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 14th day of February, 1917, confirming the report of commissioners in proceedings to condemn property for the purpose of a public park located on the southeasterly side of Hell Gate in Queens county, city of New York.

Appeal by the defendant, Alfredo Caruso, from a judgment of the Supreme Court, Kings county, rendered against him on the 2d day of October, 1917, convicting him of the crime of robbery in the first degree as a second offense, and also from an order made on the same day, after sentence, denying his motion for a new trial, and also from an order entered in the office of the clerk of the county of Kings on the 29th day. of January, 1918, denying his motion for a reargument of…

<p>Appeal by the plaintiff, The Storm King Paper Company, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 6th day of December, 1917, upon the decision of the court after a trial at the Orange Special Term.</p>

<p>Crime — disorderly person — telling fortunes — spiritualist — evidence — constitutional law — interference with religious beliefs and opinions of citizen.</p> <p>Upon the prosecution of a defendant for “ pretending to tell fortunes ” in violation of subdivision 3 of section 899 of the Code of' Criminal Procedure, the defendant denied that she was a fortune teller or pretended to tell fortunes, and claimed that she was the president and a minister of the “ Brooklyn Spiritualist Society ” and that she simply gave the complaining witness “ advice.” The defendant claimed to summon departed spirits to aid her in answering the complainant’s questions.</p> <p>Held, that the evidence was sufficient to justify a finding that the defendant was guilty of telling fortunes in violation of the statute, thereby constituting her a disorderly person.</p> <p>Subdivision 3 of section 899 of the Code of Criminal Procedure, making one a disorderly person who pretends to tell fortunes, is not unconstitutional, upon the ground that it deprived the defendant of the exercise and enjoyment of her religion, profession and worship, in violation of article 1, section 3, of the State Constitution, and in violation of the Constitution of the United States.</p> <p>The State may not interfere with the religious beliefs and opinions of a citizen, but it may prohibit acts and practices which are deemed to be detrimental to the community.</p>

<p>Libel — pleading — complaint — article charging unlawful pilfering of films but not mentioning plaintiff by name — innuendo.</p> <p>Where a complaint in an action for libel alleges that the plaintiff is a man of good reputation, lawfully engaged in the business of selling motion pictures and rights to exhibit the same; that during the time in question he was the owner of “ certain rights to exhibit a certain motion picture film called ‘ The Feudists,’ and was authorized to sell and vend same; ” that the defendant published “ of and concerning the plaintiff ” in certain moving picture journals articles which stated in substance that persons engaged in the unlawful practice of stealing and selling filma without authority of the real owners were at large, and that the defendant’s president purposes to apprehend the criminals and fling them into jail, and that “ The Feudists ” is one of the pilfered films, but such article nowhere mentions the plaintiff by name, and the innuendo consists of the mere statement that the plaintiff was the person referred to, without averment of extrinsic facts, there is a failure to state a cause of action.</p>

<p>Appeal by the petitioner, Brooklyn Bar Association, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 22d day of August, 1918, denying its motion for leave to intervene herein and for a dismissal of the complaint.</p>

Appeal by the plaintiffs, George L. Fileman. and another, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 20th day of June, 1918, denying their motion for judgment on the pleadings after a demurrer had been interposed to the complaint on the grounds, (1) that two alleged causes of action have been improperly united therein; and (2) that the second cause of action does not state facts…

Appeal by the defendant, Republic Trading 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 13th day of September, 1918, as resettled, directing the discovery of defendant’s books and papers herein.

Appeal by the defendant, Christoffer Hannevig, Inc., 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 2d day of May, 1918, denying its motion for judgment on the pleadings consisting of a complaint and the demurrer thereto in an action brought for specific performance of an alleged agreement for the purchase and sale of real property.

<p>Crime — criminally receiving stolen property — what constitutes —• sufficiency of circumstantial evidence.</p> <p>To constitute the crime of criminally receiving stolen property it must be shown that the property was stolen by someone; that it was bought, received, concealed or withheld by the defendant ihat he knew that the property was stolen, and that he received the property with felonious intent.</p> <p>On a charge of criminally receiving stolen property, evidence that the defendant was in a room with one of the persons who stole the property, in which room was other stolen property; that he had, at the time, a considerable sum of money in his pockets, and that a tag and some memoranda that had been in or upon the packages were found in his possession on the day after the theft, is insufficient to sustain a conviction. A conviction founded wholly upon circumstantial evidence which tends merely to give rise to a suspicion cannot be sustained.</p>

<p>Motion by the plaintiff, Solwin W. Smith, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance pursuant to an order of a judge of the City Court of the City of New York, made upon a trial of the issues in said court in December, 1917.</p> <p>The order was made after the complaint had been dismissed upon the opening.</p>

Appeal by the plaintiff, River Plate Commercial Company, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of February, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of February, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Judgments — opening default by plaintiff — insufficient excuse — contumacious acts of attorney.</p> <p>Where a plaintiff’s attorney, upon the call of a case "for trial, asks that it go over the term on the ground that a witness is missing, but refuses to give the name of the witness, and the complaint is dismissed and judgment entered for the defendant, a judge at Special Term has no power to review the action of the trial judge in dismissing the complaint.</p> <p>A sufficient excuse for opening the default was not shown as it was willful, and the refusal of the attorney to give the name of the witness was contumacious.</p>

Appeal by the plaintiff, Abraham Sophian, 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 May, 1918, granting defendant’s motion for an order of interpleader.

<p>Gas and electricity — authority of Public Service Commission to regulate rates within State for natural gas furnished by Pennsylvania company.</p> <p>The Public Service Commission has the power to regulate the rates to consumers within the State for natural gas furnished by a Pennsylvania gas company, as the gas is a local and not a national product, although its source of supply is solely in the State of Pennsylvania.</p>

<p>Conservation Law — validity of lease of rights in State Reservation at Saratoga Springs — effect of subsequent enactment of Con-</p> <p>. servation Act —■ contract —■ refusal to perform — liability of Conservation Commissioner for violation of lease — injunctive relief — adequate remedy, at law — constitutional law — public official not restrained from doing act required by statute — specific performance.</p> <p>An agreement in the name of the State by the Board of Commissioners of the State Reservation at Saratoga Springs, giving the plaintiff’s assignor the right for a term of years with privilege of renewals to bottle and sell waters from certain springs and to use the real and personal property of the reservation, subject, however, to all statutes theretofore enacted, and providing that it shall be binding only so far as the Commissioners had power to make it, is valid.</p> <p>The amendment of the Conservation Law (Laws of 1917, chap. 204), which treated the agreement as at an end and the bottling business as that of the State, made the State responsible, after it became a law, for a violation of the contract.</p> <p>In view of said statute, the court could not grant the plaintiff injunctive relief as against the Conservation Commissioner. He should not be restrained from doing an act which the statute requires him to do.</p> <p>Ordinarily, either party to a contract may refuse to perform it, but must respond in damages to the party aggrieved thereby.</p> <p>The fact that damages will not fairly compensate for the breach of a contract, or the prevention of a multiplicity of suits, and other reasons, may justify a specific performance, but it is not awarded unless the remedy is mutual.</p> <p>A public official who disregards his duties to the prejudice of another may be compelled to perform his legal duties by order of the court. But if a statute of the State requires him to do the acts, he cannot be restrained on the plea that such action on his part will prejudice another in his contract rights with the State.</p> <p>A legislative act which prevents the performance by the State of its contract relating to the conduct of a State reservation is not an unconstitutional interference with the property rights of the other party, so long as the State provides a tribunal in which damages may be recovered against it. If in such cases the acts of a State official are prejudicial to another, and in violation of property rights, the State is causing the wrong and proper action may be had in the Court of Claims for damages.</p> <p>The aforesaid provision of the Conservation Act is so far valid, at least, that a court of equity will not require the Conservation Commissioner to violate its terms, especially in a case where there is a reasonably adequate remedy at law.</p> <p>The court should not interfere with or hamper the administration of the reservation property at the instance of the plaintiff, which is not taking advantage of its legal remedies.</p> <p>Cochbane and H. T. Kellogg, JJ., dissented.</p>

Appeal by the defendants, Edward Townley and others, as assessors, from an order of the Supreme Court, made at the Essex Special Term and entered in the office of the clerk of the county of Schenectady on the 31st day of July, 1918, granting a peremptory writ of mandamus.

<p>Appeal by the defendants, Harry J. McArdle, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 3d day of June, 1917, on a finding that the claimant had lost an eye.</p>

Appeal by the defendant, Morris Bernhard Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 8th day of May, 1918, denying its motion to require the complaint to be made more definite and certain.

Appeal by the defendant, Edward Cunneen, from a judgment of the County Court of Kings county, rendered against him on the 16th day of April, 1917, convicting him of the crime of robbery in the first degree as a fourth offense.

<p>Reargument of an appeal by the defendant, Solomon Mont-lake, from a judgment of the Supreme Court, Kings county, rendered against him on the 30th day of September, 1916', convicting him of the crime of grand larceny in the first degree.</p>

Certiorari issued out of the Supreme Court and attested on the 28th day of November, 1917, directed to Maurice E. Connolly, president of the borough of Queens, and Richard S. Newcombe, commissioner of public works of the borough of Queens, commanding them to certify and return to the office of the clerk of the county of Queens all and singular their proceedings had in dismissing the relator from the position of foreman in the department of sewers in the borough of Queens.

Appeal by the plaintiff, Postal Telegraph-Cable Company, from a judgment of the Supreme Court in its favor, entered in the office of the clerk of the county of New York on the 15th day of March, 1918, upon the decision of the court after a trial before the court, a jury having been waived.

<p>Appeal by the defendant, Walter Srutowski, 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 7th day of February, 1918, upon the verdict of a jury rendered by direction of the court for the sum of fifty dollars damages, and costs.</p>

Appeal by the defendant, London and Lancashire Fire Insurance Company, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of January, 1918, upon the decision of the court after a trial at the New York Special Term.

<p>Appeal by the defendant, The New York Herald 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 2d day of March, 1917, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 21st day of February, 1917, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ernest W. Blasius, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of April, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 6th day of May, 1918, directed to Joseph F. Tinney, as commissioner of public safety of the city of Watervliet, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in dismissing the relator from the position of chief engineer of the fire department of the city of Watervliet.

Appeal by the defendant, Willis Hollenbeck, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chemung on the 14th day of May, 1918, denying his motion to vacate and set aside an order directing the service of the summons herein by publication.

Appeal by the defendant, The State of New York, from an order and determination of the Court .of Claims in favor of the claimant, entered in the office of the clerk of said court on the 14th day of March, 1918, awarding to the claimant $14,465.33.

<p>Liquor Tax Law — transfer of certificate to place designated by commission as one where liquor may not be sold — when consent of property owners not necessary.</p> <p>The holder of a liquor tax certificate for premises used for the traffic in liquors since 1890 procured for the ensuing year a certificate to conduct business at another number on the same street, at which liquors had been sold for the year ending September 30, 1917, after the commission appointed under the Liquor Tax Law, as amended by chapter 623 of the Laws of 1917, to reduce the number of places where traffic in liquors might be carried on, had designated such place as one where the traffic in liquors might be pursued and the original place of business as one where liquor should not be sold. Thirteen days thereafter he procured a transfer to his original place of business and filed notice of abandonment of the other place. No consent was obtained of the owners of the premises within 300 feet of the original location. Thereupon, on proceedings for that purpose, the liquor tax certificate was revoked. The Liquor Tax Law, as amended, provides that consent of property owners shall not be required where “ traffic in liquor was actually lawfully carried on in said premises * * * .on the twenty-third day of March, eighteen hundred and ninety-six.”</p> <p>Held, that the owner of said certificate was not within the prohibition of the Liquor Tax Law in that he was obliged to obtain the consents of persons residing within 300 feet of the premises. - '</p> <p>In such case the certificate cannot be revoked on. the ground that the owner thereof falsely stated that he would lawfully carry on the traffic in liquors upon the premises under the liquor tax certificate applied for.</p>

Appeal by the defendants, Rome Wire Company and another, from awards of the State Industrial Commission, entered in the office of said Commission on the 20th day of June, 1918, and the 12th day of December, 1917, respectively.

<p>Workmen’s Compensation Law — wages as basis of award— “ production,” “ special,” and “ service ” bonuses as part of wages.</p> <p>In computing the wages of an injured employee for the purpose of awarding compensation under the Workmen’s Compensation Law, it is proper to take into consideration “ production,” “ special,” and “ service ” bonuses paid during the year immediately preceding the injury.</p> <p>Woodward, J., dissented.</p>

<p>Workmen’s Compensation Law — superintendent on way to instruct driver of milk route struck by automobile while leaving street car — hazardous employment or business.</p> <p>An employee who was superintendent of wholesale routes for a dairy company left his employer’s place of business to go upon a route where a new driver had been assigned for the purpose of instructing him. To reach the route he boarded a street car and as he stepped therefrom at his destination he was struck by an automobile and so injured that death resulted.</p> <p>Held, that an award of compensation for his death should be reversed as deceased was not at the time of the injury engaged in a hazardous occupation under the Workmen’s Compensation Law.</p> <p>Under such circumstances deceased was not in any way engaged in the operation of a wagon.</p> <p>Neither was such employee in the service of an employer whose principal business was carrying on or conducting a hazardous business.</p>

<p>Appeal by the defendants, Topping Brothers and another, from an award of the State Industrial Commission, made on the 20th day of May, 1918.</p>

Appeal by Robert Gibson from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of August, 1918, denying his motion for a stay pending the hearing and determination of an appeal taken by him and another stockholder from an order of dissolution appointing a receiver herein.

Appeal by the plaintiff, Mary Cavinato, as administratrix, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1918, granting defendant’s motion for judgment on the pleadings consisting of an amended complaint and the amended answer thereto.

Appeal by the defendant, John Wirth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 3d day of April, 1918, upon the decision of the court after a trial at the Bronx Special Term. The judgment awarded plaintiff a separation and alimony and gave her the custody of the child of the parties.

Separate appeals by Boyd McDowell and others, as executors, and individually and as testamentary trustees, from a decree of the Surrogate’s Court of the county of Chemung, entered in the office of said Surrogate’s Court on the 25th day of February, 1918, settling the accounts herein, with notice of an intention to bring up for review the decision of the surrogate in the proceeding.

The first appeal is from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 10th day of July, 1918, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, George Monck, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of June, 1918, denying his motion to vacate an ex parte order of sequestration.

<p>Incompetent persons — authority of court to permit committee of property of incompetent in this State to transfer same to committee in foreign State.</p> <p>A petition by the committee of the property of an incompetent in this State, by the committee of the property in California, and also by the committee of the person of the incompetent in said State for an order allowing the New York committee of the property to pay over the same to the California committee should be granted, there being no creditors within this State and the incompetent not being either a citizen or a resident and there being no one in interest objecting.</p> <p>Such a transfer is not prohibited by the Banking Law of this State and is within the chancery powers of the Supremo Court.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 28th day of February, 1918, affirming an order fixing the transfer tax herein.

<p>Banks and banking — savings banks — purpose of provision for suspension of payments for sixty days — liability for payment of forged orders.</p> <p>The provision of the Banking Law (Laws of 1914, ehap. 369, § 248) giving a savings bank the privilege of suspending payment for sixty days is not designed for, and has no relation to, making inquiries concerning the authority of persons making withdrawals from accounts in the hank. Its purpose is to protect hanks in time of panic and financial distress. Whether a bank uses ordinary care and diligence in making payments from a depositor’s account is a question of law when the facts are conclusive and undisputed, and a question of fact when they are debatable and conflicting. A savings hank which makes payments out of the trust account of an illiterate guardian whose signature is made by a cross mark, to a person presenting the passbook with an order which has the approval of the guardian’s surety stamped thereon, and which has attached thereto a certificate of a commissioner of deeds, regular on its face, certifying that the cross mark signature was made and acknowledged by the guardian, is not liable to the guardian where it appears that the payments were in fact made to an impostor.</p> <p>But where the bank, knowing that the surety company has possession of the passbook, and that withdrawals are made upon the authorization or approval of the surety company, makes a payment on an order such as mentioned above, except that it does not bear the approval of the surety company, it is guilty of negligence, and liable to the depositor where it appears that the person presenting the order was an impostor.</p> <p>That the employees of the bank who cashed such orders were unfamiliar with the course of dealing requiring the approval of the surety company does not excuse the bank, as ordinary prudence required that a notation should have been made on the signature card when the account was opened, showing that the approval of the surety was necessary.</p> <p>In such a case the bank was not entitled, as a matter of law, to rely upon the certificate of the commissioner of deeds.</p>

<p>Landlord and tenant — surrender of lease — release of guarantor — intent of parties — evidence.</p> <p>Mere substitution of one tenant in place of another does not operate to discharge, as a matter of law, the first tenant from the future performance of nis covenant to pay rent.</p> <p>But where a new agreement is made between the landlord and assignee, whereby the assignee is given the duration of the term and assumes the obligation of the original lease, it creates a surrender by operation of law.</p> <p>A surrender will not be implied, however, against the intent of the parties, as manifested by their acts, and where such intention cannot be presumed without doing violence to common sense the presumption will not be supported.</p> <p>Where an agreement was made with a lessor by a tenant in possession of the premises who claimed to own the lease, and who was also one of the executors of the estate of the guarantor of the lease, by which agreement the lessor waived the payment of the land taxes by the lessee, and all of the terms of the lease, except as modified by the agreement, were ratified and confirmed by the tenant, who assumed and agreed to pay the sums due under the lease, and there was nothing to show that the assumption of the lease by said executor afforded any better security, while the agreement repeatedly spoke of a “ modification ” of the lease, and the executors of the guarantor signed a declaration that the agreement mentioned should in nowise affect the liability of the estate on the lease as modified, it was held that there was no intention on the part of the lessor to surrender ,tíie original lease and accept a lease without a guaranty. • /</p>

<p>Appeal by the defendant, Interborough Rapid Transit 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 11th day of January, 1918, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 10th day of January, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Trade marks and trade names — infringement — injunction pendente lite.</p> <p>A trade mark for face powder, perfumes, etc., having for its distinguishing feature the words “ Swyt-Kisse,” is infringed by the use of the words “ Sweet Kiss ” as the distinguishing feature of labels for similar preparations.</p> <p>An injunction will issue, without proof of deception, restraining a defendant from the simulation of the plaintiff’s trade mark, as the right to the injunction arises when it is shown that there has been an unlawful invasion of the plaintiff’s property right in its trade mark.</p> <p>On a motion for an injunction pendente lite to restrain the infringement of a trade mark, a claim that the plaintiff is not the real party in interest because the packages on which the trade mark is used contain the name of a different company, will not be considered where no such claim is made in the papers submitted in opposition to the motion.</p>

Appeal by the defendant, Litchfield Construction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, .1917, upon the verdict of a jury for $8,580, and also from an order entered in said clerk’s office on or about the 5th day of January, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Corporations — officers — powers of president to hire auditor — approval of directors.</p> <p>The president of a corporation doing a business of $2,000,000 a year has general power, without the approval of the directors, to hire an auditor or accountant at a salary of $1,000 per month to put the accounts and financial affairs of the corporation into good shape, preparatory to their examination by prospective purchasers of the corporation.</p> <p>Hence, in an action for services under such a contract, it is reversible error for the court to charge that the plaintiff cannot recover if his employment was nob approved by the board of directors.</p>

<p>Ceetioeaei issued out of the Supreme Court and attested on the 8th day of January, 1917, directed to the State Board of Tax Commissioners of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in determining an appeal from the equalization made by the board of supervisors of Delaware county of the assessments for the year 1915.</p>

<p>Appeal by the defendants, George Clark and another, from an award and order of the State Industrial Commission, entered in the Albany office of said Commission on the 30th day of January, 1918, and also from an award entered on the 19th day of February, 1918.</p>

Appeal by the claimant, Frank H. Andrews, from a finding and decision of a Deputy Commissioner of the State Industrial Commission at a special hearing in the above claim had on the 26th day of February, 1918, denying an award.

<p>Appeal by the defendants, Stern Brothers and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 3d day of June, 1918, and also from an award entered in said office on the 5th day of April, 1918, and also from an award entered in said office on the 10th day of September, 1917.</p>

Appeal by Robert Owen Frost, as administrator, from so much of a decree of the Surrogate’s Court of the county of Chemung, entered in the office of said Surrogate’s Court on the 29th day of May, 1918, as charges fifty-seven dollars and fifty cents, one-half the cost of a surety bond, against the principal of a trust fund.

Appeal by the defendant, J. & J. Rogers 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 22d day of June, 1918, upon a decision of the court after a trial at the Albany Special Term. The judgment permanently enjoined the defendant from exercising a franchise in the town of Jay, Essex county, N. Y.

Appeal by the defendant, The Curtiss Aeroplane Company, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 27th day of May, 1918, denying defendant’s motion for a bill of particulars.

Appeal by the defendant, Pearl M. Marcellus, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 14th day of February, 1918, convicting her of the crime of manslaughter in the second degree.

<p>Appeal by the defendant, United States Casualty Company, from an order of the State Industrial Commission, dated the 11th day of December, 1917, denying a motion of the insurance carrier to rescind the approval by the Commission of the report and agreement for compensation and to vacate and set aside the awards.</p>

Appeal by the defendants, Columbian Rope Company and another, from an award, order and decision of the State Industrial Commission dated July 3, 1918, directing payment to the State Insurance Fund under section 27 of the Workmen’s Compensation Law of the net present value of future installments of compensation awarded to the dependent mother of the deceased.

<p>Appeal by Henry Patton, individually and as administrator, from an order of the Supreme Court made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 2d day of May, 1918, establishing an attorney’s lien in favor of the respondent to certain moneys in the First National Bank of Albany, New York, and directing execution therefor.</p>

Appeal by the defendant, Fred Grossman, from a judgment of the Supreme Court, Essex county, rendered against him on the 2d day of October, 1913, convicting him of the crime of murder in the second degree.

<p>Tax — State lands in Rockland county — reduction of assessment by Comptroller — statutory construction — chapter 149 of Laws of 1911 and section 440 of Education Law construed.</p> <p>Chapter 149 of the Laws of 1911, relating to the assessment and taxation of State property in Roeldand county, does not authorize the State Comptroller to review the assessments made in said county, and to pay only so much of the taxes as he shall deem warranted by the assessments as he conceives they should have been made.</p> <p>There is no rule of statutory construction which permits of the segregation of a single sentence from its context and making such isolated sentence the basis of a conclusion.</p> <p>Section 440 of the Education Law, relating to the authority of the State Comptroller to correct or reduce any assessment of State lands in RocMand county for school purposes, is no justification for his action in refusing to pay general taxes on State lands in such county as fixed by the assessment rolls.</p>

Appeal by the defendants, American Linoleum Manufacturing Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 20th day of March, 1918.

<p>Contract — agreement for commissions on sale of securities construed.</p> <p>A so-called option to purchase from defendant certain stocks, bonds and receiver’s certificates of a corporation owned by the defendant and a claim against it upon which the plaintiff was to receive commissions examined, and held, insufficient as a basis for the recovery of commissions on a sale of the corporation’s property, assets and effects on foreclosure.</p> <p>Smith and Shearn, JJ., dissented, with opinion.</p>

<p>Intoxicating liquors — local option election — denial of resubmission of question — denial of application for liquor tax certificate — no remedy by mandamus to compel issuance.</p> <p>Subsequent to a local option election, petitioners applied to the Supreme Court for a resubmission of the local option questions, which application was denied, and no appeal was taken. Thereupon they made application to the county treasurer for a liquor tax certificate which was refused on the ground of the result of the former local option election. A peremptory writ of mandamus was then sought to compel the treasurer to disregard the certified copy of the statements as to the local option election, which was denied. Held, that petitioners were barred by their prior application and that their remedy was by appeal from that order.</p> <p>An order denying resubmission of local option questions is conclusive until revoked or modified.</p>

Appeal by the defendant, Milo R. Maltbie, as chamberlain of the city of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 23d day of February, 1918, granting relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the defendants, John T. Clark & Son and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 30th day of April, 1918, and also from an award entered in said office on the 4th day of June, 1918.</p>

Certiorari issued out of the Supreme Court and attested on the 6th day of May, 1918, directed to Joseph F. Tinney, as commissioner of public safety of the city of Watervliet, N. Y., commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in dismissing the relator from his position in the fire department of the city of Watervliet.

Appeal by the plaintiff, State Council of the Order of United American Mechanics of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 1st day of November, 1917, dismissing the complaint upon the merits- upon a -decision' of the -court after a trial before the • court without a jury,

Appeal by the defendants, Public Service Commission, Second District, and others, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Albany on the 13th day of September, 1918, restraining them during the pendency of the action from enforcing or attempting to enforce chapter 227 of the Laws of 1907, or proceeding under the Public Service Commissions Law or any other law with reference to the sale by the…

<p>Ejectment — action by State to recover possession of land — when defendant estopped from asserting title — practice — application for leave to serve supplemental answer.</p> <p>Where, in an action by the State for ejectment, it appears that seven years prior to the entry of the defendant into possession, the State recovered a judgment in ejectment against the defendant’s grantor, and that the defendant, being confronted with the probability of a similar action against himself, -executed, acknowledged and delivered an instrument admitting and conceding the property to be owned by the People of the State, he is estopped from asserting any title to the premises as against the plaintiff, and the court properly denied his motion for leave to serve a supplemental answer alleging that since the commencement of the action he acquired alleged interests in the premises from other parties.</p> <p>Although the court will not ordinarily on motion determine the merits of a supplemental answer, but will leave the parties to litigate at the trial the questions raised thereby, it is its duty to consider all the circumstances and grant or refuse the application as may be just and proper in the particular ease.</p> <p>H. T. Kellogg, J., dissented.</p>

<p>Appeal by the relator, Oaklawn Corporation, from' an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of August, 1918, denying its motion for a peremptory writ of mandamus.</p>

<p>Appeal by the defendant, Louis Mantin, from, a judgment of the Court of Special Sessions of the City of New York, Part VI, rendered against him on the 21st day of January, 1918, convicting him on an information charging him with a violation of all the provisions of section 405 of the Penal Law.</p>

<p>Sureties — banks and banking — negotiable instruments — bond of public official — subrogation of surety to rights of city — extent of surety’s rights — fictitious payee of check — forged indorsement — liability of bank.</p> <p>A surety on the bond of a city official, made to the city chamberlain individually and in his official capacity and to the city, upon the payment to the city of any losses caused by the payment by a bank of checks drawn in favor of fictitious payees and cashed by the official, is entitled to be subrogated to any right of action which the city has against the bank. The same rules as to subrogation of a surety apply to a surety on the bond of a public official as obtain where the bond is for a private employee.</p> <p>The doctrine of subrogation gives to the surety who has paid the debt of his principal, not alone all of the rights and remedies which the creditor would have against the principal, but also all of the rights and remedies that the creditor would have against all. persons liable for the debt.</p> <p>Where an employee of a city chamberlain’s office, charged with the duty of preparing checks for the payment of jurors’ fees, made cheeks payable to fictitious payees, had them signed by the proper official, who had no . knowledge of their fictitious character, and afterwards indorsed and cashed them, the bank, in paying the checks, becomes hable to the city for the amount paid.</p> <p>Payments made on forged indorsements are at the peril of the bark, unless it can claim protection upon some principle of estoppel, or by reason of some negligence chargeable to the depositor.</p> <p>When a bank pays out money on a forged indorsement it is hable to the maker of the instrument.</p> <p>Merrell, J., dissented.</p>

<p>Appeal by the relator, Eugene Pinchback, 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 September, 1918, dismissing a writ of habeas corpus.</p>

<p>Appeal by the relator, Eva M. Trost, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1918, denying her motion for a peremptory writ of mandamus requiring the respondent to accept and file nunc pro tunc a notice of appeal.</p>

Certiorari issued out of the Supreme Court and attested on the 7th day of November, 1917, directed to the Public Service Commission, Second District, of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in denying the application of relator for permission to exercise its franchise as a lighting corporation in certain towns, upon the ground that the company is not legally…

Appeal by the defendant, Louis Padula Company, Inc., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of March, 1918, overruling his demurrer to the complaint.

Appeal by the plaintiff, William Welden, 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 8th day of June, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order entered on the same day dissmissing the complaint.

<p>Will giving beneficiary life interest in residuary estate — subsequent will by legatee of residue of said residuary estate devising same to beneficiary in first will — merger.</p> <p>Where a testator bequeathed a certain sum to his sister absolutely, and provided that if said amount should be.insufficient to comfortably support and maintain her, that a sufficient amount be taken from his residuary estate, consisting of real and personal property, annually during her life; that said residuary estate be held in trust for that purpose, with remainder to" his mother, her heirs and assigns forever, and the mother died after the death of the testator, leaving a will bequeathing her residuary estate to the said daughter, the two estates, under the provisions of section 15</p>

Appeal by the defendant, Edgar Gregory, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 22d day of May, 1918, upon a decision of the court after a trial before the court without a jury.

Appeal by the defendant, William Shaughnessy, from a judgment of the County Court of Albany county, rendered against him on the 14th day of March, 1918, convicting him of the crime of robbery in the first degree.

<p>Sale — conditional sale — action under section 65 of Personal Property Law to recover payments made by vendee after sale of property without notice required by section 66 — defense — change of contract by giving new notes to corporation which had assumed obligations of vendors.</p> <p>Where in an action under section 65 of the Personal Property Law to recover payments, it appears that the defendants, as copartners, sold to the plaintiff’s husband personal property under a conditional contract of sale, providing that the title was to remain in them until the purchase price was paid; that vendors might retake the property only “ upon default in payments of said sum or any installment thereof; ” that certain payments were to be secured by notes maturing at different times, but no provision was made for renewal of said notes, and none of them were paid to the defendants; that a corporation was subsequently formed which took over the former partnership assets and assumed its obligations; that when the notes became due the plaintiff’s husband gave new ones, not to the defendants, but to the corporation, and also paid part of the indebtedness to it, and that after much delay, the corporation took possession of the property and sold it for a reasonable price, but without giving the notice required by section 66 of the Personal Property Law, the complaint was properly dismissed because the plaintiff’s husband by giving the new notes to the corporation changed the contract and affected the rights of his vendqrs, the defendants, precluding a recovery under the statute.</p> <p>The recovery which a vendee may have under section 65 of the Personal Property Law is the amount which he has paid on the property “ under the contract for the conditional sale thereof,” made with his vendors, and not under a modified contract.</p>

<p>Insurance — action on fire insurance policy — evidence as to oral acceptance of offer of settlement.</p> <p>In an action on a fire insurance policy, it appeared that the owners of the buildings insured had, prior to the issue of the policy, executed a contract to convey the premises, including the insured buildings, to the plaintiff’s testator, and also executed a similar contract to convey to other parties; that at the time of the fire both of said contracts of conveyance were outstanding, but the policy contained a clause that the loss should be first payable to plaintiff’s testator as his interest might appear, and also contained a provision that no action on the policy should be sustainable unless commenced within twelve months after the fire. The defendant refused to pay the loss, but after negotiations wrote a letter through its president</p> <p>to the plaintiff’s assignor offering a settlement, which offer it withdrew by letter about a week later. The plaintiff claims that her testator’s attorney, intermediate the two letters of the defendant, called on its president and orally accepted the offer.</p> <p>Evidence held insufficient to establish the plaintiff’s claim of an oral acceptance, and that the complaint should be dismissed.</p>

Appeal by the plaintiff, Frank P. Smith, 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 Saratoga on the 21st day of May, 1918, changing the place of trial from the county of Saratoga to the county of Rensselaer.

Appeal by the plaintiff, Catherine Perine, from a judgment and order of the County Court of Chemung county, entered in the office of the clerk of said county on the 26th day of June, 1918, reversing a judgment of the Elmira City Court in plaintiff’s favor and ordering a new trial.

<p>Workmen’s Compensation Law — claim against husband and wife after dismissal of complaint in action against wife alone as employer — election of remedies — evidence as to employment.</p> <p>A claimant having been injured through an accident brought an action to recover damages against one Marie Gross alleging that she was his employer, that she had failed to secure compensation for her employees and that he was injured through her negligence. She in her answer alleged that the employer of the claimant was not herself but her husband. After the dismissal of the complaint the claimant filed a notice of claim in which, in answer to the question, “ Name of employer? ” he wrote, “ Louis Gross or Marie Gross, his wife.” The Commission made an award against Louis Gross and Marie Gross, both of whom were found to be the employer of the claimant. Evidence examined, and</p> <p>Held, that there was no foundation for the finding of the Commission that the claimant was employed by Marie Gross and Louis Gross, but, on the contrary, it was proven that he was employed solely by Marie Gross, and as against her the claim was barred by an election previously made.</p> <p>Kellogg, P. J., and Woodward, J., dissented, with memorandum.</p>

Appeal by the defendants, Johnstown Knitting Mills Company and another, from awards of the State Industrial Commission, entered in the office of said Commission on the 10th day of June, 1917, and the 27th day of March, 1918.

<p>Attorney-at-law censured — writing of personal letters soliciting legal business in violation of canon 27 of the Code of Ethics.</p> <p>Attorney-at-law censured for addressing personal letters to business men soliciting their claims for collection or other legal business and in persistently engaging in the practice of addressing “ follow-up ” communications to the same parties soliciting legal business in violation of canon 27 of the Code of Ethics, which provides in part as follows: “ But solicitation of business by circulars or advertisement, or by personal communications or interviews, not warranted by professional relations, is unprofessional.’’</p>

<p>Courts — designation of Extraordinary Term of Supreme Court —■ failure to publish notice in compliance with order of Governor — objection to jurisdiction — writ of prohibition — validity of proceedings had in de facto court.</p> <p>Under section 153 of the Judiciary Law, providing that the Governor in appointing Extraordinary Special or Trial Terms of the Supreme Court “ must give notice of the appointment in such manner as, in his judgment, the public interest requires,” it is made the duty of the Governor to give the notice and not merely to prescribe the manner in which it is to be given, and he cannot delegate the power to others. Hence, where the order requires that the notice be published once in each week for two successive weeks in two newspapers designated therein, and the notice was so published in one of the newspapers and was published twice in one week in the other, the order of the Governor was disregarded, the Extraordinary Term was not properly convened, and a writ of prohibition may issue although numerous other trials have been had at said Extraordinary Term.</p> <p>When a person is brought before a court not duly constituted, he has the right to demand that he shall not be tried by such court.</p> <p>What notice of the designation of an Extraordinary Term of the Supreme Court is essential is to be determined by the Governor and his decision " is not subject to review.</p> <p>A writ of prohibition is the proper remedy to prevent the acts of a court that may be such de facto but are not such de jure.</p> <p>A grand jury summoned by an Extraordinary Term constituting a de facto court is a de facto grand jury, and the indictments found by it are valid and none of the formal court proceedings already had can be successfully challenged.</p> <p>Clarke, P. J., and Shearn, J:, dissented, with opinion.</p>

Appeal by the defendant, Bradley Contracting Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of February, 1917, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Railroads — liability of street railway company for assault upon passenger by ticket-chopper — instructions to jury — instructions based on circumstances not existing prejudicial — duty of carrier to protect passengers against assaults and insults of its employees.</p> <p>Where, in an action by a husband and wife against a street railway company to recover damages for an assault alleged to have been committed on the wife by a ticket-chopper in the employ of the defendant, it appeared that after the wife had deposited tickets and was passing through the gate, the ticket-chopper struck her and grabbed her right arm and accused her of having dropped the wrong kind of a ticket, which she denied, and that there was no evidence that the ticket-chopper asked for or required time to investigate, the court properly instructed the jury that it was the duty of the carrier to treat passengers with consideration and to see that they were not assaulted and that no violence is used upon them by its employees, but that it had the right, through its employees, to call upon any one attempting to pass a ticket box without depositing a valid ticket to stop, and that when any one attempts to pass the box without depositing a ticket, the ticket-chopper is justified in using a reasonable degree of force to prevent his further progress.</p> <p>But since there was no evidence that the ticket-chopper was in doubt as to whether good tickets had been deposited, there was no occasion for giving the jury any instructions with respect to his authority in such circumstances. They were prejudicial to the plaintiffs.</p> <p>If the plaintiff, wife, deposited valid tickets, she was entitled to proceed without molestation from defendant or being charged with depositing a bogus ticket or required to buy another, and the defendant is answerable for the action of its ticket-chopper, whether willful or through error of judgment or otherwise, in seizing hold of and detaining her against her will, which was a violation of its duty, which is absolute, to protect passengers against assaults and insults of its employees.</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 Bronx on the 30th day of January, 1918, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 6th day of February, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Will—probate — depositions — when contestant not entitled to commission to take testimony in Australia — evidence sought immaterial — stay pending appeal — affidavit containing slanderous and libelous charges against testator canceled as scandalous.</p> <p>Where a testator stated in his will that he was married in Australia and that after the disappearance of his wife and his inability to locate her he married again, and upon subsequently discovering that his first wife was alive, made provision to support her during his life, and the first wife contested the probate of the will, alleging on information and [belief that it was not duly executed or published, that the testator was not of sound mind and memory, and that its execution was procured by fraud and undue influence practiced upon him by a legatee named, or others acting with her, the contestant is not entitled to a commission to take testimony in Australia with respect to the recitals by the testator in his will concerning the disappearance of the contestant, and the search and inquiry made for her by the testator, where it appears that the only facts which she claims the witnesses will be able to testify to are concerning her whereabouts from the time of her disappearance; that none of said witnesses have any knowledge with respect to the execution of the will or acquaintance with the legatee charged with having influenced the testator; that the attorney for the proponents, who are executors, presented an affidavit containing an offer in their behalf to stipulate the facts which the contestant seeks to prove by the commission; that the attorney for said legatee in his affidavit offered to stipulate in her behalf that the witnesses would testify to such facts, reserving objections to the relevancy and immateriality of the evidence; and that an affidavit was read by said legatee in opposition to the motion denying the charges made against her in the objections filed to the probate, shovring that she knew nothing about the will.</p> <p>The said legatee should have the benefit of the stipulations so filed in opposition to the motion by the contestant for a- stay pending the appeal.</p> <p>An affidavit by the attorney for the contestant making serious reflections on the relations which existed between the testator and the said legatee which does not show that he had any personal knowledge with respect thereto, and does not give the source of his information, should be canceled from the record as scandalous. Such charges were not germane to the motion.</p>

<p>Insurance — action on fire insurance policies — insufficient service of summons upon agents under section 432 of Code of Civil Procedure— when defective service not waived by notice of appearance — defense of Statute of Limitations — warranty — statement that building is occupied as dwelling — breach of warranty — condition precedent to right to recovery — service of proper proofs of loss — pleading.</p> <p>Where, in an action on fire insurance policies, the plaintiff served a summons on two agents of two of the defendants in the city of New York, which is insufficient because not within the requirements of section 432 of the Code of Civil Procedure, and subsequently served a summons on the Superintendent of Insurance, an appearance by the defendants in response to that service in order to plead the Statute of Limitations was not a waiver of the defective service of summons upon the agents, especially as it is contended that defendants had no knowledge of the attempted service upon the agents before the trial.</p> <p>Under the evidence, the defense of the short Statute of Limitations provided in the contract of insurance was established and the complaint should have been dismissed upon that ground.</p> <p>A statement in the insurance policy that two of the buildings insured were occupied as dwellings constituted a warranty by the plaintiff and as such use was not the principal one, said warranty was breached.</p> <p>It is not enough that part of the building was occupied as a dwelling house, as long as that was not the principal purpose for which the building was used.</p> <p>Provisions in a fire insurance policy that the insured shall serve upon the insurers sufficient proofs of loss within a specified time from the fire, and that no suit shall be sustainable until after full compliance with such requirements, constitute a condition precedent to the right of recovery, and the insured is required to prove full compliance therewith.</p> <p>It is not sufficient for the insured to show service of papers that he claims to have been proofs of loss.</p> <p>A denial by the insurer of full compliance by the insured with such a condition is sufficient to raise the issue.</p> <p>Sheabn, J., dissented.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office March 27, 1917, upon a decision after a trial at Special Term.</p>

Appeal by the plaintiff, The Commercial Trust Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, November 3,1917, denying its motion to vacate an order for its examination before trial.

<p>Appeal from an order, entered in the New York county clerk’s office January 29, 1918, granting the plaintiff’s motion for leave to examine certain books of the defendant and appointing a referee.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the New York county clerk’s office upon the verdict of a jury, and also from an order entered November 23, 1917, denying a motion for a new trial.

<p>Disciplinary proceedings instituted by the Bar Association against an attorney.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office October 17, 1917, dismissing the complaint at the close of plaintiffs’ case upon a trial at Trial Term.</p> <p>Judgment affirmed, with costs. No opinion. Present — Clarke, P. J., Dowling, Smith, Page and Merrell, JJ.; Dowling, J., dissented.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the New York county clerk’s office November 20, 1917, in favor of the plaintiff upon the verdict of a jury for the sum of $5,019.19, and also from an order entered December 10,1917, denying a motion for a new trial.

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office October 26, 1917, on a verdict, and also from an order entered November 1, 1917, denying a motion for a new trial.</p> <p>Judgment and order affirmed, with costs. No opinion. Present — Clarke, P. J., Laughlin, Dowling, Smith and Shearn, JJ.; Shearn, J., dissented.</p>

Cross-appeals from a judgment of the Supreme Court upon the report of a referee appointed to take and state an account and report on the same with his opinion. The judgment was entered in the office of the clerk of the county of Kings on the 17th day of August, 1916.

Appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 26th day of October, 1917, in favor of the plaintiff, and from an order, entered in said office on the 9th day of November, 1917, denying a motion for a new trial. Judgment and order affirmed, with costs. No opinion. Thomas, Rich and Putnam, JJ., concurred; Jenks, P. J., read for reversal; Blaekmar, J., not voting.

Appeal by the defendant from a judgment of the Supreme Court, entered in the Saratoga county clerk’s office May 18, 1917, upon a decision of the court rendered after a trial before the court without a jury.

. Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office, October 11, 1917, upon the verdict of a jury and also from an order entered October 16, 1917, denying a motion for a new trial.

<p>Motion for leave to appeal to the Court of Appeals.</p>

Appeal by the plaintiffs from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 10th day of April, 1918.

Appeal by defendant from a judgment of the Supreme Court, entered in the office of the clerk of Westchester county on January 30, 1918, in favor of plaintiff, and also from an order entered in said office on February 7, 1918, denying the defendant’s motion to set aside the verdict and for a new trial. Judgment and order reversed and new trial granted, costs to abide the event, on authority of Minneapolis & St. Louis R. R. Co. v. Winters (242 U. S. 353).

<p>Appeal from an order of the Supreme Court, entered in the Monroe county clerk’s office May 7, 1918, sustaining a writ of habeas corpus granted to the relator and awarding him the custody of the child Margaret Linton, twelve years old.</p>

<p>Real property — title ■— parties — arbitration</p>