Volume 185 — New York Appellate Division Reports

<p>Corporations — action under section 66 of Stock Corporation Law to recover moneys paid in violation thereof — action at law — right to trial by jury.</p> <p>An action under section 66 of the Stock Corporation Law to recover from the defendant moneys claimed to have been paid to him by a corporation in violation of the provisions of said section, in which the plaintiff asks that said payment be declared to be in violation of the statute, and that the defendant be decreed and ordered to account for and pay over to the plaintiff the said sum, is an action at law in which the defendant is entitled to a jury trial of the issues.</p> <p>A request for the account and payment over is not necessarily a request for an accounting, and the prayer for relief that the transfer be declared void may be treated as surplusage, as legal relief is also asked to which the plaintiff is entitled upon the allegations of the complaint.</p>

Appeal by the defendant, Waldorf-Astoria Hotel Company, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of January, 1918, affirming a judgment of the Municipal Court of the City of New York, Fourth District, in plaintiff’s favor rendered at a trial before the court without a jury.

<p>Negligence — injury from slipping and falling on sidewalk — ice caused in part from water from leaking leader pipe from defendant’s stairway — evidence — erroneous dismissal of complaint.</p> <p>Where in an action for personal injuries sustained by slipping and falling on a sidewalk, it may be fairly inferred from the evidence, taken in connection with other facts, that water had been leaking from a leader which runs down from the defendant’s stairway with a joint near the sidewalk, running along the sidewalk and freezing whenever there was a storm during a period of at least a week before the accident, and that the place where the accident happened was covered with ice formed in part at least from water from the defective leader, it is error to dismiss the complaint.</p> <p>If the ice formed from the water coming from the defective leader aggravated and made more dangerous the condition of the sidewalk, the defendant is responsible for the dangerous condition created.</p>

Appeal by the plaintiff, Albert Heye, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of September, 1918, vacating an order for the examination of the defendants Sehreiter and Geddes for the purpose of enabling the plaintiff to frame his complaint.

Appeal by the defendant, Samuel Plotnick, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of October, 1918, denying his motion to vacate an order of arrest upon the insufficiency of the moving affidavit.

Appeal by the plaintiff, Ferdinand P. Van Der Veer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of February, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of March, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Eagle Savings and Loan Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of November, 1917, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>Defendant is a savings and loan association, existing by virtue of the laws of New York, now article 10 of the Banking Law (Consol. Laws, chap. 2 [Laws of 1914, chap. 369], as amd.).</p> <p>The complaint alleged that on and after June 18, 1907, defendant represented to plaintiff and to others, to induce deposits of savings with it, that defendant was doing a banking business based on deposits and withdrawals on open account the same as in savings and business banks; that it would receive deposits for checking account, and would repay all or any part thereof to plaintiff or to his order, at any time on demand, with four per cent interest on any balances to plaintiff’s credit; that plaintiff, relying on such statements, was induced to deposit $400 on June 18, 1907, and sundry other payments between that date and October 5, 1914, amounting in all to $1,724, against which plaintiff had withdrawn $200 by an ordinary commercial bank check, leaving a balance to plaintiff’s credit of $1,524, with interest. Plaintiff also averred that he had received a pass book in which such deposits and withdrawals were entered; that plaintiff had not subscribed for any shares; that any entry of plaintiff’s name as a subscriber to shares was without plaintiff’s knowledge or consent; that he never received any certificate of share ownership; that, having learned that his name had been entered as a subscriber for thirty shares, thereby apparently obligating him to pay $2,600 in addition to the $400 originally deposited, and having discovered the falsity of defendant’s representations, the plaintiff presented his pass book and offered to surrender same on being paid the balance to his credit, and asked that his name be stricken from defendant’s books as a shareholder, also that defendant cancel any such shares so issued to him, which defendant refused. The complaint also averred that such agreement to receive such deposits and to pay interest thereon was ultra .vires and void. Plaintiff asked the relief that such shares or subscription be canceled, with a recovery of the sum of $1,524 so paid.</p> <p>The answer admitted defendant’s incorporation; that plaintiff had filed a notice of withdrawal of his balance on class B savings shares of defendant, with a general denial of plaintiff’s other allegations.</p> <p>The court found that defendant made the representations alleged; that thereby plaintiff was deceived into the belief that defendant did a banking business; that when plaintiff made his first deposit of $400 defendant induced him to sign a card by telling plaintiff “ that it was an identification card whereon defendant, without plaintiff’s knowledge or consent, wrote the figures 1 30 ’ between the words ‘ subscription ’ and ‘ shares ’ printed on said card, but plaintiff never intended to subscribe for shares nor knew that he was or was deemed to be subscribing for shares, and plaintiff never received any shares or any certificate evidencing his alleged subscription or ownership of shares.” The court also found that before January 1, 1915, plaintiff had presented his pass book to the defendant, and demanded payment of the moneys due him, with cancellation of such shares, which defendant had refused.</p> <p>The court refused to find, as defendant had requested, that by an order of this Appellate Division (Matter of Eagle Savings & Loan Co., 164 App. Div. 867), bearing date December 11, 1914, the defendant’s liability to plaintiff had been reduced nine and eighteen one-hundredths per cent, amounting to $192.22.</p>

<p>Appeal by the defendant, Isaac P. Lewin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of April, 1918, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 17th day of April, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by F. & B. Construction Company and another from an order of the State Industrial Commission, entered in the office of said Commission on the 15th day of May, 1918, affirming an award made on the 14th day of September, 1917.

Appeal by Robert P. Griffing and others, intervenors, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 4th day of November, 1918, enjoining the acting town clerk of the town of Riverhead from doing anything tending toward submitting to the voters of said town the question of local option.

Appeal by M. Edward Kelley from so much of an order of the Supreme Court, made at the Kings County Special Term on the 18th day of June, 1918, as resettled by an order entered in the office of the clerk of the county of Kings on the 26th day of June, 1918, as confirms the report of a referee.

Appeal by the plaintiff, Mayer S. Ginsburg, 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 9th day of April, 1918, dismissing the complaint on the merits upon the decision of the court after a trial at the Westchester Special Term.

Appeal by the defendant, Morris Bender, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of June, 1918, granting plaintiff an inspection and discovery of certain books and papers.

Appeal by the defendant, Stillman, Delehanty-Ferris Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of February, 1918, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 31st day of January, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Libel — return by bank of checks drawn by plaintiff with word “ forgery ” written upon face — proof justifying verdict for plaintiff — damage — when punitive damages not recoverable — verdict reduced.</p> <p>Where the plaintiff, applying at his bank of deposit for a cheek book, was given a book which contained at the foot of the check an indistinct impression from a rubber stamp intended for the official signature of a member of the “ Jefferson Branch Clerks’ Loan Association,” with which association the plaintiff had no account, but the plaintiff in good faith signed such checks with his own name and the defendant, on presentment, returned the same to the payees with the word “ forgery ” written across the face, the jury were justified in finding that the defendant, sued for libel, made a charge of forgery against the plaintiff.</p> <p>There was a charge of forgery against the plaintiff, although his signature was genuine.</p> <p>However, as no malice on the part of the defendant appeared and its officers admitted their mistake and offered to write to the payees, there was no basis for punitive damages, and a judgment for the plaintiff will be reversed, unless he consents to reduce a verdict of $6,000 to $3,000.</p>

Appeal by the defendants, Superior Printing and Box Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 25th day of June, 1918.

Appeal by the plaintiff, Mathews Slate Company of New York, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 29th day of October, 1917, dismissing the complaint on the merits upon the decision of the court after a trial at the Washington Special Term.

Appeal by the defendant, Edward P. Nolan, from a judgment of the County Court of Ulster county, entered in the office of the clerk of said county on the 18th day of April, 1917, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 23d day of April, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Esther J. Sahler, as administratrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 14th day of May, 1918, 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 defendant, Joseph Klein, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 25th day of June, 1917, convicting him of the crime of arson in the second degree, and also from orders denying defendant’s motion for a new trial and to set aside the verdict.</p>

Appeal by the defendants, Barney Scher and another, from a judgment of the Court of Special Sessions of the City of New York, Part Two, county of Kings, rendered against them on the 13th day of February, 1917, convicting them of a violation of section 440 of the Penal Law.

<p>Crime — conducting business under assumed name — evidence justifying conviction.</p> <p>Defendants were properly convicted of the crime of conducting business under an assumed name, in violation of section 440 of the Penal Law, where the proof showed that they filed a certificate for the use of a family name which was not the name of any one of the persons conducting or intending to conduct the business.</p> <p>The conviction was proper, although it appeared that the wife of one of the' defendants was interested in a corporation using said family name: Kelly and Mills, JJ., dissented, with opinion.</p>

Appeal by the plaintiff, Siegfried Frohlich, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of May, 1918, affirming an order of the Municipal Court of the City New York denying plaintiff’s motion to vacate a judgment and for a new trial on the ground of newly-discovered evidence, with notice of an intention to bring up for review the judgment…

<p>Appeal by the defendant, New York Railways Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ne York on the 5th day of March, 1918, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 7th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Charles M. Durland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of June, 1918, upon the decision of the court after a trial at the New York Trial Term after the rendition of a special verdict by the jury.</p>

<p>Intoxicating liquors — sale of liquor on Sunday — when persons ordering sandwiches to obtain liquor on Sunday are not bona fide guests of hotel.</p> <p>Action by the State Commissioner of Excise to recover upon a bond,given to secure due compliance with the Liquor Tax Law by the defendant, the holder of a liquor tax certificate. It was admitted that the defendant was the proprietor of a hotel and authorized to sell liquor to guests with their meals on Sunday, but the proof showed that in at least one instance on a Sunday persons who desired to order drinks without suggesting that they were desirous of obtaining anything to eat, were informed by an employee of the defendant that they must order something to eat, and that even a pretzel would answer, upon which advice they ordered sandwiches, it is apparent that they were not guests of the hotel, and a judgment for the defendant will be reversed and judgment awarded to the plaintiff.</p>

Appeal by the defendant, Washington S. Valentine, 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 or about the 18th day of May, 1918, directing him to account to the plaintiff for the amount found due on account of a joint adventure or partnership claimed to have been made between the parties.

<p>Appeal by the plaintiff,-Myroh M. Studner, from a determination and order of the’Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of April, 1918, reversing a judgment of the City Court of the City of New York in plaintiff’s favor and also reversing the order of said City Court denying defendant’s motion for a new trial.</p> <p>The order and determination appealed from also dismissed the complaint.</p>

Appeal by the petitioner, Otto Brand, from a decree of the Surrogate’s Court of the county of Sullivan, entered in the office of said Surrogate’s Court on the 29th day of October, 1917, denying probate to an instrument propounded as and for the last will and testament of Sophia Morison, deceased, after a trial had been had in the Supreme Court before a jury.

Appeal by Mary K. Wellington, individually and as executrix, and another, from an order and decree of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 20th day of May, 1918.

<p>Appeal by the defendant, George H. Marvin, from, a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 28th day of November, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal in each case by the plaintiff, S. Wallace Hagaman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 28th day of February, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial in each case made upon the minutes.

<p>Appeal by the defendant, Erie Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of December, 1917, sustaining a demurrer to the third separate defense set up in the answer. An appeal is also taken, as stated in the notice of appeal, from the decision of the court pursuant to which the judgment was entered.</p>

Appeal by the defendant, Lake Shore and Michigan Southern Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 23d day of February, 1918, upon the verdict of a jury for $2,600, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, New York State Railways 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 Herkimer on the 11th day of July, 1916, .upon the verdict of a jury for $3,200, and also from an order entered in said clerk’s office on the 13th day of July, 1916, denying defendants’ motion for a new trial made upon the minutes.

Appeal in each case by the defendant, International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of March, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of May, 1918, denying defendant’s motion for a new trial in each case made upon the minutes. The verdict in the first case was for $200.

Appeal by the defendant, International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 16th day of February, 1918, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 15th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Buffalo General Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 21st day of February, 1918, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of April, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Gilbert Turner, from a judgment of the. Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 3d day of Juné, 1918, upon the decision of the court after a trial at the Chautauqua Special Term, with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 16th day of April, 1918, sustaining a demurrer to the complaint.

Appeal by The Tonawanda and Grand Island Ferry Company, Inc., and others, from so much of an order of the County Court of Erie county, entered in the office of the clerk of said county on the 18th day of July, 1918, as grants the petitioner George E. Pierce a license to keep, maintain and operate a ferry across the eastern channel of the Niagara river from the city of Tonawanda to the town of Grand Island and to collect and receive ferriage for the transportation of…

Appeal by the plaintiff, Frank H. Freeman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th day of February, 1918, sustaining a demurrer to the complaint and dismissing the same, with costs.

Appeal by the defendant, International Railway Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 9th day of October, 1918, directing the issuance of a peremptory writ of mandamus.-

Appeal by the defendant, Borden’s Condensed Milk Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of February, 1918, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 14th day of February, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal — practice — leave to appeal to Appellate Division from determination of Appellate Term — time within which appeal must be taken — failure to enter order within thirty days.</p> <p>Where a justice of the Appellate Division has granted a motion permitting defendant’s appeal to the Appellate Division from a determination of the Appellate Term affirming a judgment of the City Court, the time to appeal expires thirty days thereafter by virtue of sections 1344 and 1351</p> <p>of the Code of Civil Procedure, and the defendant cannot extend his time to appeal by delaying to enter the order obtained on his own motion. Where his notice of appeal was not filed or served until the expiration of thirty days from the time leave was granted, it was too late and the appeal will be dismissed.</p>

Cross-appeals by the petitioner, Charles S. Whitman, and by Alfred E. Smith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of November, 1918. The petitioner, Charles S. Whitman, appeals from so much of said order as provides for a postponement of the examination of the ballots until after the issuance of a certificate of election of Governor by the Secretary of State.

Appeal by the defendant, Joseph S. Burrows, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county> of New York on the 12th day of April, 1918, granting plaintiff’s motion to set aside the verdict of the jury in defendant’s favor, and for a new trial.

Appeal by the plaintiffs, Edna W. Minion and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of June, 1918, denying plaintiffs’ motion for judgment on the pleadings consisting of an amended complaint and a demurrer thereto.

<p>Cross-appeals by the plaintiff, Frank H. Hebblethwaite, and by the defendants, Charles R. Flint and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1916, upon the report of a referee appointed to hear and determine the issues.</p> <p>Defendants appeal from the whole of said judgment with notice of an intention to bring up for review an interlocutory judgment entered in said clerk’s office on the 26th day of October, 1910, and also an order entered in said clerk’s office on the 6th day of March, 1916, modifying the referee’s report and overruling certain objections and exceptions thereto and confirming the report as modified.</p> <p>Plaintiff appeals from so much of the judgment as modifies the report of the referee in certain particulars and gives notice of an intention to bring up for review the order entered in said clerk’s office on the 6th day of March, 1916, in so far as it modifies the report of the referee.</p>

<p>Appeal by the defendant, William E. Lange, from a udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of June, 1918, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment vacated and set aside two conveyances and an assignment of the mortgage upon the ground that the execution and delivery of the same were fraudulent and void.</p> <p>Such instruments were executed on July 15, 1916, by the plaintiff to her only son, the defendant.</p>

<p>Appeal by the plaintiff, Star Company, from a-n order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of July, 1918, as resettled by an order entered in said clerk’s office on the 22d day of August, 1918, denying plaintiff’s motion for judgment on the pleadings consisting of an amended complaint and the demurrer thereto.</p> <p>An appeal is also taken from the judgment entered in said clerk’s office on the 26th day of July, 1918, dismissing the amended complaint pursuant to said order. The facts are admitted, v</p>

<p>Appeal by the defendant, Fountain & Choate, Inc., from a judgment of the Supreme Court in favor of the respondents, .entered in the office of the clerk of the county of New York on the 13th day of April, 1918, upon the decision of the court after a trial at the New York Special Term.</p> <p>The judgment foreclosed certain mechanics’ liens and directed their payment out of a fund deposited by the appellant to discharge and secure payment of the liens.</p>

Appeal in each case by the defendant, John C. Welwood, from, judgments of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of February, 1918, upon the verdict of a jury, and also from orders entered in said clerk’s office on the 25th day of February, 1918, denying defendant’s motion for a new trial in each case made upon the minutes. The verdict in the first case was for $1,000.

<p>Appeal by the defendants, Frederick J. Lisman and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of May, 1918, denying defendants’ motion for judgment on the pleadings, consisting of a complaint, answer and reply.</p>

<p>Banks and banking— action against savings bank to recover deposits •— validity of order of interpleader requiring amendment of summons and supplemental complaint granted without notice to individual defendants who had answered — service of supplemental complaint upon said defendants — effect of error in exercise of jurisdiction where court has jurisdiction of both parties and subject-matter.</p> <p>Where, in an action against a savings institution and individual defendants to recover a sum on deposit, said institution after issue was joined by service of an answer by the individual defendants procured' an order pursuant to section 250 of the Banking Law requiring the summons to be amended and a supplemental complaint to be served, said order is not rendered void because made without notice to the individual defendants, even though they were entitled to such notice, but is merely voidable, and it is not prejudicial to the rights of said individual defendants to serve them with a copy of the supplemental complaint.</p> <p>Until such order is vacated, it must be obeyed and cannot be collaterally attacked.</p> <p>Where it appears upon the face of a judgment or order that the court, being one of general jurisdiction, has not jurisdiction either of the person or the subject-matter, it is a nullity and may be disregarded or collaterally impeached by any person interested whenever it is brought in question. When, however, the court has jurisdiction of the parties and subject-matter, no error in the exercise of the jurisdiction can make the judgment or order void. In such a case the judgment or order, although irregular in form, erroneous or mistaken in law, or granted without observance of the rules of procedure and practice, is conclusive and must be obeyed as long as it remains in effect; that is, until vacated on motion or reversed on appeal.</p>

<p>Appeal by the plaintiff, Berlin Construction Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of May, 1914, upon the dismissal of the complaint by direction of the court at the close of the whole case.</p>

<p>Malicious prosecution — sufficiency of complaint — defendant charged as joint tort feasor — allegations as to conspiracy.</p> <p>Complaint in an action, for damages alleged to have been sustained by reason of malicious prosecution instituted and carried on by the respondent and other defendants with whom he is impleaded, which in effect alleges that the defendants, including the respondent, confederated and conspired together to institute a false and malicious prosecution of the plaintiff; that without any reasonable or probable cause therefor, and well knowing the same to be wholly false and untrue, they supported a charge of grand larceny by affidavits; that both upon the hearing before the magistrate and upon the trial under the indictment they gave false and malicious testimony in support of the false charge, sets forth facts sufficient to charge the respondent as a joint tort feasor with his fellow defendants and contains all necessary allegations. to constitute a cause of action against said respondent for malicious prosecution.</p> <p>Although it was alleged that the defendants conspired and confederated together, the gravamen of the action was malicious prosecution.</p>

<p>Motion in each case made by the defendant, The Ebling Brewing Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, after the direction of verdicts in favor of the plaintiff by the court after certain specific questions had been submitted to the jury and answered by them.</p> <p>The trial was had in the City Court of the City of New York.</p>

<p>Tax — transfer tax — assessment of contingent remainder — when amount of contingent legacy should not be added to residuary estate for purpose of assessment.</p> <p>Where a residuary legatee under a will may or may not become ultimately ■ interested in a contingent bequest the amount of said contingent bequest should not, for the purpose of assessment, be added to the amount of the residuary estate.</p> <p>A transfer tax appraiser may add together two or more legacies passing under a will to a person whose rights as to each are presently ascertainable in order to arrive at the entire value of said person’s interest in the estate.</p> <p>But where it is impossible to say what person will finally take a contingent remainder such interest cannot be added to any other legacy for the purpose of taxation and must be independently assessed against the executor or trustee.</p> <p>Smith, J., dissented.</p>

<p>Appeal by the defendant, City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of January, 1918, upon the decision of the court after a trial before the court without a jury.</p>

<p>Surrogate — jurisdiction upon judicial settlement to hear and determine rejected claim.</p> <p>A surrogate has jurisdiction under, sections 2510 and 2681 of the Code of Civil Procedure, upon the judicial settlement of an estate, to hear and determine a rejected claim which is in effect that the testator at his death had or should have had property which he was obligated to transmit by his will to the claimant.</p>

<p>Municipal corporations — city of New York — street opening proceeding — exemption from assessment under section 992 of Greater New York charter — conveyance must be made under said section prior to appointment of commissioners — city not estopped by assurance of its corporation counsel that exemption could be secured by conveyance after appointment of commission —• when deeds not regarded as a sale to city — authority of court to reopen street opening proceeding.</p> <p>The exemption of lands from assessment for street improvements under section 992 of the Greater New York charter, exists only when the lands have been deeded to the city prior to the appointment of the commissioners. The city is not estopped from disallowing the benefit of said exemption by the fact that its corporation counsel accepted deeds from the owner and practically assured it that it would thereby secure such exemption, as said owner was bound to know the law and the limitation imposed by said section 992.</p> <p>The arrangement with the corporation counsel and the deeds given thereunder may not be regarded as a sale to the city of the land required for the street ’ opening.</p> <p>The court has inherent authority under the exercise of its discretion to reopen a street opening proceeding if it be convinced that by the misrepresentation of the city’s representative the owner was led to forego its right to appear before the commission or the court on the application to confirm.</p>

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of April, 1918, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 16th day of April, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Leo J. Alexander, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of March, 1916, upon the verdict of a jury for $500, reduced by stipulation to $100, and also from an order entered in said clerk’s office on the 25th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.</p> <p>Plaintiff appeals from so much of said order as reads as follows: “ Ordered that the said motion be and hereby is granted, unless the plaintiff stipulates to reduce said verdict to the sum of $100.”</p>

<p>Appeal by the defendant, Ferdinand Munch Brewery, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 29th day of April, 1918, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 6th day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Municipal corporations •— nuisance — liability of owner of park within limits of village for failure to properly operate sewage plant — effect of proposed extension of village system to include park — liability of park company and mortgagee of its property for expense of operation of sewage plant by village.</p> <p>A park company located within the limits of a village had operated a pump to remove sewage from a tank in the park to a sewage system owned and controlled by the village, but through inadequacy of the pump and inefficient operation of it, the sewage was not discharged properly and the pumping station was subsequently operated by the village board of health. In an action by the village against the park and other defendants having liens upon portions of the park property, evidence held to establish that the pumping station as conducted by the park company constituted a nuisance;</p> <p>That a lien for the expense of operation by the village may attach to all the property of the park company and of o'ne holding a mortgage thereon.</p> <p>But the judgment should only limit the compulsory operation of the private plant to such time as the new sewer system by the village may properly be extended to the locality now dependent upon the private plant.</p> <p>The fact that the village supervised the construction of new sewers by the park company did not cast upon it the burden of taking over the pumping station which was the private property of said park company.</p> <p>The park company having appropriated and adapted the private sewage plant to its purposes cannot at will lay aside the responsibility it had assumed and suffer the sewage to accumulate and overflow with menace to the public health. Pending the extension of the village system to the park, the legal responsibility of the park company is not lifted.</p>

Appeal by the plaintiff, Beatrice C. Shiverick from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 25th day of July, 1916, upon the decision of the court after a trial at the Westchester Special Term.

<p>Appeal by the defendant, Coastwise Lumber and Supply 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 12th day of June, 1918, upon the verdict</p> <p>of a jury for $4,000, and also from an order entered in said clerk’s office on the 10th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Workmen’s Compensation Law — exclusiveness of remedy under statute — pleading •— complaint in action either at common law or under Employers’ Liability Act—-failure to state facts to show and to allege that plaintiffs are not limited to exclusive remedy provided by statute.</p> <p>A complaint in an action either at common law or under the Employers’ Liability Act to recover for the death of plaintiffs’ testator, a night watchman employed by defendant in its piano factory, which shows that deceased was an employee of the defendant engaged in a hazardous employment, and that he received injuries arising out of and in the course of his employment, but which does not allege that his employer failed to secure the payment of compensation for injured employees and their dependents as provided in the Workmen’s Compensation Law, and that the plaintiffs are not limited to the exclusive remedy provided by the statute, fails to state a cause of action.</p> <p>The remedy provided under the Workmen’s Compensation Law is exclusive where it applies, and the burden is upon a plaintiff to set forth facts showing that the statute does not apply.</p>

Appeal by the defendant, Troy Waste Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of March, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of March, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, J. Pryse Goodwin and another, from a judgment of the Supreme Court in their favor, entered in the office of the clerk of the county of New York on the 7th day of March, 1918, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the same day denying plaintiffs’ motion for a new trial made upon the minutes.

Appeal in each case by the plaintiff, The Globe and Rutgers Fire Insurance Company, from judgments of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 10th day of December, 1915, and the 7th day of January, 1916, respectively, upon the report of a referee appointed to hear and determine the issues.

Appeal by the defendant, Alfred N. JHyatt, 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 July, 1918, denying defendant’s motion for a stay of proceedings.

<p>Appeal by the plaintiffs, Socrates Moscahlades and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of August, 1918, granting defendant’s motion for a retaxation of costs.</p>

Appeal by the defendants, Frederick W. Kroehle 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 20th day of March, 1917, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Susquehanna Silk Mills, 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 13th day of February, 1918, dismissing the complaint and awarding judgment on defendants’ counterclaim upon the verdict of a jury. An appeal is also taken from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Motor Haulage Company, Inc., from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1918, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 11th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Harriet Louise Curtis, individually and as administratrix, 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 20th day of May, 1918, upon the decision of the court after a trial at the New York Special Term. The decision confirmed the report of a referee and in accordance therewith construed certain provisions of the deed of trust.

<p>Appeal by the plaintiff, The Vulcan Detinning Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of February, 1916, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Special Term, the motion to dismiss having been 'made and taken under advisement at the close of plaintiff’s case.</p>

Appeal by the defendants, Federal Storage Battery Car Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of March, 1918, granting plaintiffs’ motion for judgment on the pleadings, overruling the demurrers interposed by the appellants to the complaint and denying appellants’ motion for judgment on the pleadings and for a dismissal of the complaint.

Appeal by the plaintiff, Mary Wolff, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 19th day of January, 1918, dismissing the complaint upon the pleadings, consisting of a complaint, answer and reply, and also from an order entered in said clerk’s office on the 15th day of January, 1918, granting defendant’s motion for judgment on the pleadings pursuant to which order the judgment was entered.

Appeal by the defendants, Thomas Barbour and others, as executors, and others, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 13th day of June, 1918, adjudging the testator to be a resident of the State of New York for the purposes of the transfer tax and remitting the estate for appraisement as that of a resident.

<p>Appeal by the plaintiff, Isidore Meyerson, from an order of the Supreme Court, made at' the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of May, 1918, granting defendant’s motion for judgment on the pleadings, consisting of a complaint and the demurrer thereto, and sustaining the demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p>

<p>Appeal by the defendant, William A. Prendergast, as comptroller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1917, granting relator’s motion for a peremptory writ of mandamus.</p>

<p>Real property — fixtures — right of owner to preserve character as personalty of articles annexed to realty — consent of owner — purpose of section 62 of Personal Property Law — when steam boilers and radiators transferred under conditional sale retain their character as personalty.</p> <p>It is competent for an owner to preserve its character as personalty of any article annexed to the realty, providing it is not so incorporated with the realty as to lose its identity or to be incapable of removal, except by destruction or serious injury to the freehold.</p> <p>This doctrine rests upon the consent of the owner either expressed or implied from the circumstances. This consent is effective in favor of the third party who is the owner of the fixtures as against a purchaser in good faith.</p> <p>Section 62 of the Personal Property Law was enacted to protect innocent purchasers and incumbrancers who should purchase or loan on land against secret claims of third parties that as to them fixtures were personalty.</p> <p>Where a vendor of steam boilers and radiators intended that they should become attached to and form part of a complete steam heating apparatus under a contract between the vendee and the owner, the said owner had no knowledge of the conditional sale of the fixtures, and, therefore, did not consent that they should retain their character as personalty after annexation, said fixtures were realty, notwithstanding the conditional sale, and this for the reason that the conditional vendor consented that they should be installed in the building as realty, and the owner did not consent that they should retain their character as personalty.</p>

<p>Witnesses — competency of children — duty of presiding justice to examine children offered as witnesses to ascertain their capacity and the extent of their knowledge — test of competency.</p> <p>A judgment based upon the testimony of two children, one the plaintiff who was about six years and eight months old at the time of the trial, and the other who was then seven years and six months old, should be reversed, where it appears that both children were called as witnesses and sworn over the protest of the defendant’s counsel, without any preliminary inquiry by the presiding justice as to their intelligence or appreciation of their duty to tell the truth.</p> <p>When a child of such tender years that his competency is in doubt is called as a witness, it is the duty of the presiding justice to examine him before he is sworn, to ascertain his capacity and the extent of his knowledge.</p> <p>The question of competency depends on the capacity and intelligence of the child, his appreciation of the difference between truth and falsehood, as well as of his duty to tell the former.</p>

<p>Attorney at law disbarred — false representations to client — defrauding court by false affidavits.</p> <p>Attorney at law disbarred for deceiving Ms client by false representations and for obtaining orders from the court upon affidavits made upon knowledge setting forth facts which were not true.</p>

<p>Bills and notes — action against maker and indorsers of promissory notes — consideration.</p> <p>Where in an action to recover on promissory notes made by the defendant in his trade name to the order of the plaintiff and indorsed by the other defendants, it appeared that said notes were given in payment of a debt of a bankrupt corporation which had never received its discharge, owned and controlled by defendants, in consideration of the plaintiff extending to the defendants the same line of credit that it had extended to the bankrupt; that the parties had been dealing with each other for years and a definite credit had been established; that they had dealt pursuant to this oral agreement for twenty-two months without evidence of dissatisfaction and until the defendant failed to pay notes given for merchandise purchased, it was error to dismiss the complaint on the ground that there was no consideration shown for the notes inasmuch as the amount and terms of credit to be extended were not specified.</p> <p>Dowling, J., dissented, with opinion.</p>

<p>Military Law — member of Veteran Corps of Artillery not entitled to immunity from arrest on civil process — Code of Civil Procedure, section 572, applies only where order of arrest has been issued.</p> <p>Under the present statute a member of the Veteran Corps of Artillery S. N. Y., is not entitled to immunity from arrest on civil process while engaged in the performance of his duties as colonel of said organization. Section 572 of the Code of Civil Procedure relates only to cases where an order of arrest has been issued.</p>

<p>Civil service —power of civil service commission of city of New York to cancel eligible list — mandamus — separate proceedings not required where number of persons are similarly situated.</p> <p>The civil service commission of the city of New York has no power, either under the Civil Service Law or the Greater New York charter, to cancel or rescind an existing eligible list of candidates.</p> <p>Where a number of persons are similarly situated the court will not require separate mandamus proceedings to be instituted. So held, where the relief asked by the relator was that an eligible civil service list containing her name be in effect re-established by the vacation of an order revoking the same.</p> <p>Clarke, P. J., and Laughlin, J., dissented, with opinion.</p>

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

<p>Carriers — Cummins Amendment to Interstate Commerce Act construed — inferences of fact not permitted upon submission of controversy — presumption of knowledge by shipper that rates were based on value — liability of carrier for value of goods destroyed by fire where shipper concealed true character of goods in order to obtain lower rate.</p> <p>A statement in a submission of a controversy in an action for the loss of goods alleged to have been destroyed by fire that the cause of loss is unknown does not render the “ Cummins Amendment ” to the Interstate Commerce Act inapplicable so as to give the defendant carrier a common-law right to limit its liability by contract, where it is not agreed as a fact that the loss was not caused by the defendant or a connecting carrier.</p> <p>Upon the submission of a controversy the court is not permitted to draw inferences of fact; the facts must be stated and agreed upon.</p> <p>Even though a shipper had no actual knowledge that rates were based on value such knowledge will be presumed from the terms of the bill of lading and of the published schedules filed with the Interstate Commerce Commission.</p> <p>Under the Cummins Amendment to the Interstate Commerce Act if a common carrier had no knowledge of the “ characterof the goods ” shipped its liability is limited to the declared value.</p> <p>The fact that a carrier was told that a shipment consisted of rugs gave it no knowledge of the shipment’s “ character,” within the meaning of the Cummins Amendment, where it appears that oriental rugs of considerable value were included, and that the contents of the cases and bales were hidden from view by the boxing or wrapping.</p> <p>An opinion of the Interstate Commerce Commission is entitled to weight in construing the Interstate Commerce Act.</p> <p>Where a shipper has concealed from the carrier, in order to take advantage of a lower rate, the true character of the goods shipped it is not permitted under the Cummins Amendment to recover beyond the value stated to the carrier as a basis for the rate obtained.</p> <p>Where a shipper of rugs stated that .each rug did not exceed a specified amount in value he is not entitled to recover an average value.</p>

Appeal in each case by the defendant, Nelson H. Tunnicliff, from a judgment of the Supreme Court in favor of plaintiffs, entered in the office of the clerk of the county of New York on the 30th day of July, 1918, upon the decision of the court after a trial at the New York Special Term, and also from orders entered in said clerk’s office on the 2d day of August, 1918, denying defendant’s motion in each case to resettle the findings of fact and conclusions of law herein.

<p>Judgment — when judgment awarding sum solely under first cause of action constitutes dismissal as to second cause of action—■ principal and agent — forfeiture of' commissions — negligence — breach of duty — recovery of commissions.</p> <p>When a judgment awards a certain sum of money solely under a first cause of action and awards nothing expressly or by implication upon a second cause of action based upon a different theory of liability, and when the referee’s opinion and report clearly show that the judgment was intended to and it does in fact award nothing under the second cause of action, then the judgment is equivalent to a dismissal as to such second cause of action.</p> <p>The fact that agents of an oil company, without any evidence of bad faith and as a mere matter of clerical inadvertence, wrote policies of fire insurance which did not cover inflammable materials such as received from the oil company, affords no basis for depriving such agents of their commissions.</p> <p>Evidence as to alleged failure of such agents to be as diligent on occasions as their duty required them to be. held insufficient to justify a loss of commissions.</p> <p>A report by agents of an oil company that they had sold a shipment of oil at the market price, whereas in fact they had taken it over for their own account, constituted a breach of duty sufficient to deprive them of commissions they would otherwise have earned, although they did not profit thereby. But the forfeiture of commissions should be limited to the value of the shipment in question, as under the agreement between the parties a separate account of each shipment was to be kept upon the closing out thereof.</p> <p>Where agents of an oil company were only to receive a commission of five per cent, a judgment allowing reimbursements for payments of one and one-half per cent commissions to subagents should be modified by deducting said amount.</p>

<p>Appeal by the defendants, Walter Jerome Green 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 27th day of February, 1918, as corrected by an order entered in said clerk’s office on the same’ day.</p> <p>The judgment was rendered upon the verdict of a jury. An appeal is also taken from an order entered in said clerk’s office on the 22d day of March, 1918, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Contracts — unilateral contract not under seal — implied promise insufficient to create mutuality — action for breach of contract — pleading — allegations as to due performance by plaintiff.</p> <p>A contract, not under seal, consisting merely of an offer on the part of the defendants to furnish samples to the plaintiff for goods to be sold by him to his customers and to be delivered to them when procured, without any agreement on the part of the plaintiff either to take goods from the defendants or to endeavor to bring to them plaintiff’s customers or other customers, is unilateral and not mutually binding, and is not subject to any interpretation which would warrant the court in implying promises sufficient to create mutuality.</p> <p>While section 533 of the Code of Civil Procedure authorizes a general allegation of due performance by plaintiff of the conditions precedent to a right to recover on certain contracts without stating all of the facts constituting performance, still a complaint in an action for the breach of a unilateral contract not under seal which sets forth no facts which show that plaintiff had done anything under the contract which called for action upon the part of the defendants or imposed any duty or obligation upon them under the contract, fails to state a cause of action.</p>

<p>Husband and wife — separation — non-payment of alimony — proceedings for contempt — evidence of. default — modification of judgment by reducing alimony — sufficiency of affidavit by husband as to financial ability — conditions upon reduction of alimony.</p> <p>In proceedings for contempt for the non-payment of alimony, pursuant to a judgment of separation, default must be clearly shown, and an appellate court may not indulge in inferences and assumptions with respect to what occurred on the original hearing, especially where the motion to punish was denied.</p> <p>The moving party in such a case must show as a condition precedent to her right to the entry of an order upon which her husband may be deprived of his liberty, not only that a certified copy of the judgment has been duly served and due demand made for the precise amount due, but also that the husband failed to pay, for while the authority for enforcing such judgments by civil contempt proceedings is conferred by section 1773 of the Code of Civil Procedure, and the provisions of article 19 of the Judiciary Law must be followed, the practice requires substantially the same proof of default as is prescribed in section 1241 of the Code of Civil Procedure.</p> <p>Evidence examined, and held,, insufficient as a basis for the punishment of a husband for failure to pay alimony, although it is uneontroverted that he was in contempt. The order denying the motion to punish defendant for contempt should be modified by permitting a renewal of the motion.</p> <p>The provisions of a judgment in an action for separation fixing the amount of alimony should not be changed in any ease without clear and satisfactory evidence of a change with respect to the ability of the husband to comply therewith, and this rule should be most rigidly adhered to, where the husband has long been in default in making the payments required by the judgment which left him in contempt, regardless of his inability to comply therewith.</p> <p>Where the sufficiency of a husband’s affidavit as to his financial ability, which is in most general terms, is challenged, he should be required to present a definite affidavit showing in detail his financial resources or be required to submit to an examination at his own expense with respect thereto.</p> <p>A modification or resettlement of a judgment reducing the alimony should be upon condition that the accrued alimony at the reduced rate be paid forthwith, and in event of the failure of the husband to comply with such condition, the application should be denied and the wife permitted to enforce the original judgment by contempt proceedings.</p>

<p>Appeal by the claimant, Muhlenberg Coal 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 16th day of December, 1916, in so far as it relates to the award for parcel No. 1 (A) herein and refuses to send the matter back to the commissioners for correction in accordance with appellant’s objections.</p> <p>Appeal by the claimant, Elizabeth B'ayliss, from all of said order except in so far as the same concerns solely the property claimed by the Muhlenberg Coal Company.</p> <p>Separate appeals by the claimants, Sarah A. Stillwell and by Frederick W. Armstrong and others, from said order in so far as it denies confirmation of the report of the commissioners with respect to parcels Nos. 2 (B), 3 (C) and 4 (D) and refers the matter back to new commissioners.</p>

Appeal by the defendant, Fidelity Title and Trust Company of Pittsburgh, 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 June, 1918, resettling a prior order entered on the 8th day of May, 1918, denying appellant’s motion to vacate and set aside the order for substituted service of the summons upon it and to vacate and set aside the service of summons made pursuant to…

Appeal by the defendant, Gera Mills, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 7th day of March, 1918, affirming a judgment of the City Court of the City of New York, and also from the original judgment of the City Court entered in the office of the clerk thereof on the 27th day of October, 1917, and from the order entered in said court denying defendant’s motion for a new…

Appeal by Alfred E. Smith from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 25th day of November, 1918, directing the issuance of a writ of mandamus.

Appeal by the defendants, Joseph M. Barnett and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of September, 1918, denying their motion to change the place of trial from the county of Kings to the county of Essex.

Appeal by the defendants, Arthur B. Leach and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1918, denying defendants’ motion for leave to serve a supplemental answer and fora stay.

<p>Appeal by Empire Brick and Supply Company and others, as creditors, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of October, 1918, as appoints. Agnes T. Harrison substituted assignee of Thomas J. Reilly in the place and stead of her testator, Michael Harrison, deceased.</p>

Appeal by the defendant, Jacob Schneck, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of October, 1918, denying defendant’s motion to vacate an order for his examination before trial.

<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 Kings on the 25th day of March, 1918, upon the verdict of a jury for-$4,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p> <p>About half-past seven o’clock in the evening of March 17, 1916, plaintiff’s intestate husband, a man about forty-two years of age, was found upon the southerly sidewalk of Crown street near the southeast corner of Crown street and Franklin avenue, Brooklyn, in a dazed or semi-conscious condition. The three men who discovered him testified, one of them, that he was sitting up at the time he was found, and the others that he was lying face to the ground with his hands stretched forward. The three witnesses testify that he was on the sidewalk and on a dirt space between the sidewalk and the curb, about seven feet from the wall of the building on the comer. He was carried or assisted to his home on Crown street distant some 200 feet from the point at which he was discovered. The plaintiff testified that the family did not realize that anything was the matter with him. He went to bed immediately, and died three hours later without the attendance of a physician. The next morning one of the coroner’s physicians examined the body and discovered a wound over one of the eyes and that the skull had been fractured back of the ear, the latter injury causing death. No witness was produced to testify how the deceased came to sit or lie on the sidewalk, or whether he slipped or fell, or was blown off his feet by a high wind prevailing; nor is there any evidence as to the point at which he lost his equilibrium. The witness who discovered him could not tell in what direction his feet were lying when he was found on the sidewalk, or on the dirt space between the sidewalk and the curb, nor did they know whether he had moved or rolled after falling, if he did fall, prior to the time they reached him. The witness who saw deceased last before his discovery about half-past seven o’clock by the three men who brought him home, was a friend and neighbor of deceased, who saw him alight from the front platform of a Franklin avenue car at Crown street between half-past six and seven o’clock the same evening. This witness testified that he spoke to deceased, who made some jocular remark concerning the holiday, St. Patrick’s day. The witness boarded the rear platform of the same car from which deceased had alighted, the car being at a standstill, and he testified that he observed deceased walking in a southeasterly direction, “ catecornered,” across Franklin avenue and Crown street, going in the general direction of the point where he was afterwards found. The witness said that as he observed deceased at that time he was walking slowly, steadily and straight in his usual way of walking. It was about 150 feet from the place where the witness accosted deceased across to the stables opposite which deceased was found, and the witness testified that he saw him walk towards the stable and get on the' curb. Deceased was a laborer earning twelve dollars per week, he left his wife, the plaintiff, and four children by her, one bom after his death, and three children by a former wife. At the time of the trial the four younger children were from eighteen months to twelve years of age. The United States weather observer testified that the day had been cold, the temperature ranging from nine to twenty-six degrees, that it was an unusually windy day, the wind from the northwest, varying from thirty-five to fifty-seven miles an hour for the entire twenty-four hours. The plaintiff introduced evidence showing a lumpy and uneven accumulation of ice upon the sidewalk upon the south side of Crown street, existing for some time prior to the accident. The jury found a verdict for plaintiff in the sum of $4,000, upon which she has entered judgment for $4,649.80.</p>

<p>Appeal — review of question not raised in court below — husband and wife — action for breach of separation agreement — when contract not an entirety — anticipatory breach —■ right to recover only for installments due.</p> <p>Where in an action by a wife against her husband for the breach of a separation agreement, under which he was to pay her a certain sum per month during her life or until her remarriage, the jury awarded damages based solely on the probable duration of plaintiff’s life, and no objection was made upon the ground that she was entitled to recover only if she remained unmarried, said objection cannot be raised for the first time on appeal.</p> <p>Where a husband has agreed to pay a definite minimum amount monthly for the support of his wife during her life or until her remarriage, and there has been no absolute repudiation of the contract but a part performance followed by a failure to pay further installments due thereunder, the doctrine of anticipatory breach does not apply and the wife is entitled only to recover each monthly installment as it becomes due. She cannot treat the contract as an entirety and bring one suit for all her damages.</p> <p>A complaint on the latter theory should not be dismissed, however, but the court should keep jurisdiction in order that the plaintiff may have whatever judgment she is properly entitled to recover.</p>

<p>Appeal by the plaintiff, Frederick Schlanger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of November, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, Jacob Manheim and another, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 21st day of June, 1917, upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January, 1918, sustaining the demurrer to the fourth defense in the second amended answer.

Appeal by the defendant John J. Bartlett, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 22d day of May, 1917, upon a decision of the court after a trial at the Suffolk Special Term.

Appeal by the defendant, Witteman Brothers, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 25th day of September, 1918.

Appeal by the defendant, Abraham Israel, from a judgment of the County Court of Kings county, entered in the office of the clerk of said county on the 12th day of March, 1918, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 15th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, S. A. Jacobson Company, Inc., from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of May, 1918, affirming a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, Sixth District, in plaintiff’s favor for the sum of $1,058 and costs.

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 8th day of February, 1918, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 2d day of February, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Consolidated Briarwood Estates and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of May, 1918, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>The judgment directed George I. Skinner, as Superintendent of Banks of the State of New York, to pay from any funds of the defendant Union Bank of Brooklyn to the plaintiff, $3,090.63, and further decreed a vendee’s lien upon the two lots purchased by plaintiff from the Briarwood Land Company of Jamaica.</p>

Appeal by the People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of January, 1918, sustaining a writ of habeas corpus and discharging the relator from custody.

<p>Fraud — suit to annul sale of bonds induced by fraudulent representations — when plaintiff only entitled to money judgment and not to judgment ordering return of specific funds alleged to have been held by defendant as constructive trustee — when finding of law does not involve intended finding of fact — presumption as to contents of findings of fact.</p> <p>Where in a' suit to annul a sale of bonds upon the ground of false and fraudulent representations made by the defendant, it is not alleged that the moneys were retained by the defendant so that they could be identified and returned as a specific fund, and there is no finding of such a fact, a judgment directing the defendant to return to the plaintiff the purchase price of the bonds with interest, less certain reductions, upon the ground that he is a constructive trustee for the plaintiff, is unauthorized.</p> <p>A finding of law that the defendant acquired the moneys from the plaintiff by fraud and held and still holds them as constructive trustee cannot be treated as a finding of fact so as to uphold the judgment, especially since it appears that the moneys were paid by the plaintiff to the defendant nine years prior to the decision in the ease.</p> <p>The judgment should, therefore, be modified so as to provide that the plaintiff have judgment against the defendant for the amount named, with costs.</p> <p>If a finding of fact be included among the findings of law, the court will treat it as a finding of fact for the purpose of reviewing the judgment, • but the judge who made the findings is strongly presumed to have placed among the findings of fact those facts which he intended so to find and to have included in his findings of law only the legal conclusions which he drew from those facts.</p>

<p>Appeal by the plaintiff, Lewis B. Preston, Inc., from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 15th day of June, 1918, in so far as- it fails to award to plaintiff the entire fund of $1,470, deposited in court in this action, but directs an equal division thereof between the plaintiff and the defendants Rice and Hill, and in so far as said judgment fails to direct payment by the defendants Rice and Hill of plaintiff’s counsel fee and expenses of this action.</p> <p>The judgment was rendered upon the decision of the court after a trial at the New York Special Term.</p>

<p>Fraud — action by receiver in supplementary proceedings to set aside alleged fraudulent transfer of corporate stock by judgment debtor to his wife —• evidence — when want of consideration immaterial — implied admission of knowledge of fraud by failing to testify.</p> <p>In an action by a receiver in supplementary proceedings to set aside an alleged fraudulent transfer of stock by the judgment debtor to his wife, it appeared that the judgment debtor intending default upon a long term lease, and his friend who also had some liabilities, were advised by an attorney to form a corporation which they did, each taking one share and dividing the remaining shares equally with their wives; that the wives had nothing to do with the business which was run as a partnership; that the judgment debtor testified that he was owing his wife for moneys loaned, but there was no evidence that she had demanded payment; that neither the judgment debtor nor the lawyer who advised the incorporation denied the fraudulent purpose for which the company was formed, which was testified to by the friend of the judgment debtor.</p> <p>Held, that a judgment dismissing the complaint should be reversed as against the evidence and a new trial granted.</p> <p>It being established that the stock was transferred to the wife of the judgment debtor in pursuance of a fraudulent purpose, if she had any knowledge of such purpose, it is immaterial whether or not she paid any consideration for the transfer.</p> <p>The fraud of the judgment debtor being established and the evidence tending to show that his wife had knowledge thereof, it was her duty to offer herself as a witness, and her failure to take the stand to assert her innocence should be construed as an implied admission on her part of knowledge of such fraud.</p>

Appeal by the plaintiff, Title Guarantee and Trust Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of February, 1916, upon a dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 7th day of March, 1916, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Motion by the plaintiff, The Eastern Steel Company, for leave to appeal to the Court of Appeals.</p>

<p>Appeal by the defendants, Harry Williams and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1918, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 25th day of June, 1918, denying defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Thomas Light, 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 April, 1918, overruling a demurrer to the amended complaint.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of June, 1918, upon the verdict of a jury for $1,750.

<p>Appeal — order denying motion for bill of particulars not reviewable on appeal from final judgment — decedent’s estate — liability of personal representative of decedent on contracts for services made by him — practice — effect of failure by plaintiff to move for direction of verdict — action for services alleged to have been rendered on employment by administrator — parties defendant — failure to join coadministrator — prior assignment of claim by plaintiff — erroneous exclusion of evidence tending to show that services were rendered on credit of estate and also that plaintiff had assigned claim — erroneous receipt of evidence as to reassignment of claim to plaintiff after commencement of action — right of plaintiff to sue after assignment of claim as collateral — pleading of defect of parties by defendant in that assignee was not joined.</p> <p>An order denying a motion for a bill of particulars does not necessarily affect the final judgment, and, therefore, is not reviewable on appeal from the judgment.</p> <p>Ordinarily the personal representative of a decedent is personally liable on contracts made by him, but services may be rendered in the administration of the estate for its benefit on the credit of the estate and when so rendered the personal representative does not become individually liable, at least not until he receives the money from the estate.</p> <p>A plaintiff by failing to move for a direction of a verdict concedes that there are issues of fact for the jury.</p> <p>Where in an action to recover for services alleged to have been rendered by the plaintiff as an accountant on a per diem basis on employment by the defendant, a coadministrator, in a suit by the defendant and his coadministrator in their representative capacities for an accounting, the defendant alleged that the plaintiff was not the real party in interest in that he had assigned his claim and that there was a defect of parties in that the defendant’s coadministrator, who was a coplaintiff in the suit in which the services were rendered, was a necessary party, it was error to refuse to allow defendant to place in evidence an answer duly verified by the plaintiff in an action by the assignee against him which tended not only to show that the services in question were rendered on the credit of the estate, but also that the plaintiff was not the real party in interest, and that he had parted with the claim absolutely.</p> <p>Such evidence, however, would not have been conclusive upon either point, for the defendant was not a party thereto.</p> <p>It was also error to receive in evidence a reassignment of the claim to the plaintiff after the commencement of the action.</p> <p>If the assignment was only as collateral, the plaintiff retained a sufficient interest in the claim to enable him to sue thereon and he would hold the proceeds as trustee for the assignee to the extent of its interest, and if defendant required protection as against the assignee he should, in the event that the .assignment was as collateral, have pleaded a defect of parties in that the assignee was not joined.</p> <p>But such a plea would not have availed the defendant since the claim was reassigned to plaintiff.</p>

Appeal by the plaintiff, Hasbrouck Flooring Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 10th day of April, 1918, upon the verdict of a jury, certain causes of action having been dismissed by the court, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the Wheat Export Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of October, 1918, denying its motion to confirm the award of arbitrators herein, and also from an order entered in said clerk’s office on the 7th day of October, 1918, granting the application of the New Century Company to vacate the said award.

Appeal by the plaintiff, National Surety Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of July, 1918, dismissing the complaint on the merits upon the decision of the court after a trial before the court, a jury having been waived.

<p>Railroads — street railways — negligence — question whether motorman with knowledge that he was liable to faint exercised reasonable care in continuing to run his car one of fact for jury — liability of company for motorman’s failure to exercise reasonable care in determining said question.</p> <p>Where a street car of the defendant company going down Lexington avenue in the city of New York, when at Thirty-fourth street ran into an eastbound car injuring the plaintiff, and it appeared that the motorman when at Forty-second street and also at Fortieth street on the downtown trip had a dizzy spell where things became dark before his eyes, and that at the time of the accident he had fainted and fallen so that the car was not under control, the question whether under these conditions and with these warnings the motorman exercised reasonable care in continuing to run the car was one of fact which should have been submitted to the jury.</p> <p>The defendant is just as responsible for the motorman’s failure to exercise reasonable care in determining the above question as in determining any other question which might arise in the course of his employment.</p> <p>Whether the motorman should have stopped his car and allowed the motorman of the succeeding car to run it, and whether he was guilty of negligence in not so doing cannot be held as a matter of law, and for a failure to submit this question to the jury a judgment dismissing the complaint should be reversed and a new trial granted.</p>

Appeal by the defendant, Lanigan Brothers, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1918, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 3d day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Julius Altkrug, 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 5th day of July, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of June, 1917, denying plaintiff’s motion for a new trial made upon the minutes. The verdict granted defendant judgment upon its counterclaim in the sum of $2,560.70 and costs.

Appeal by the defendant, David E. Kennedy, 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 23d day of May, 1918, granting plaintiff’s motion for judgment on the pleadings, consisting of a complaint and the demurrer thereto, and adjudging that she is entitled to recover $700 and costs, and to a final judgment therefor unless defendant withdraws his demurrer and pleads over.

Appeal by the plaintiffs, James W. Lane 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 26th day of June, 1918, upon the decision of the court after a trial at the New York Special Term. The judgment directed among other things that an accounting be had.

Appeal by the plaintiffs, Henri Pelanne and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of February, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiffs’ case.

<p>Corporations — presumption that directors or officials serve without compensation — necessity of express agreement or resolution to pay — action by director and vice-president upon quantum meruit for services rendered — evidence — failure to establish prima facie case — hearsay — competency of letter by former officer of corporation containing admission as to past transaction.</p> <p>Directors or officials of corporations presumptively serve without compensation, and in the absence of some express agreement to pay them or a resolution adopted to remunerate such officials for services rendered the corporation, no claim can be asserted therefor.</p> <p>In an action by a mining engineer who was a director and the vice-president of a corporation organized for mining in Alaska to recover on a quantum meruit for services with reference to a lease of the defendant’s property, and in the preparation of maps and plans for the purpose of effecting a sale, it appeared that there was no express contract or agreement of employment between the defendant and the plaintiff; that plaintiff had been previously employed and paid by the defendant under separate contracts with authority of the board of directors, and that by reason of the experience and notes collected while so employed he was able to perform a considerable part of the services for which he claims compensation.</p> <p>Held, that the services for which the plaintiff claims compensation were no different from those usually performed by one occupying his official relationship with the corporation and that he has entirely failed to make out a prima-facie ease.</p> <p>A letter from the former president of the defendant in which he indicated an acquiescence in plaintiff’s claim, written six months after he had ceased to be an officer of the company, was merely hearsay and incompetent, and was properly excluded.</p> <p>Shearn and Laughlin, JJ., dissented, with opinion.</p>

<p>Appeal by the relator, William Johnson, from an order of the County Court of Cayuga county, entered in the office of the clerk of said county dismissing the writ of habeas corpus herein.</p>

<p>Appeal by the defendant, Grover C. Schmaling, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 27th day of September, 1918, granting plaintiff’s motion for judgment on the pleadings.</p> <p>The plaintiff moved for an order overruling defendant’s amended answer as frivolous and for judgment thereon. The Special Term on reading and filing the complaint and the amended answer ordered and adjudged that the amended answer be overruled as frivolous, and that the plaintiff have judgment thereon for the relief demanded in the complaint, with costs. The action was brought to recover penalties under section 271 of the General Business Law (Consol. Laws, chap. 20; Laws of 1909, chap. 25)* for violations of article 17, section 270, of said statute. The plaintiff sued as the agent of three different dealers and shippers of milk.</p>

Appeal by the relator, Newton M. Curtis, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of June, 1918, denying his motion for a peremptory writ of mandamus, and also from an amended and resettled order entered in said clerk’s office on the 5th day of July, 1918.

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

<p>Will — probate — trial of issue as to competency of testatrix — evidence of penuriousness or extravagance — when will not an unnatural one — when question of incompetency one of fact — appeal — when error in charge or in reception of evidence may not be disregarded — burden of proof — admissibility of prior commitment of testatrix to insane asylum — when error in receiving incompetent evidence not cured — admissibility in evidence of records of insane asylum — public records — ancient document rule — evidence of lay witness as to insanity — medical experts.</p> <p>Incompetency of a testatrix cannot be predicated solely upon either penuriousness or extravagance, and such evidence ordinarily can be of but little or no probative value on the issue of competency.</p> <p>A will, in which a testatrix followed the plan adopted by her deceased husband and remembered most of her relatives by small legacies and then left her residuary estate to one person as he had done, held, not to have been an unnatural will.</p> <p>In a proceeding for the probate of a will in which, the issue is presented as to whether or not the testatrix was of sound mind and disposing memory at the time she executed the instrument, if there be more than a mere scintilla of evidence tending to show incompetency to make a will and of such a character that different inferences may fairly be drawn therefrom, the case must be decided as one of fact, and if the trial be before a jury must be left with it.</p> <p>Evidence in such a ease held sufficient to present a question of fact for the determination of the jury, but not to preponderate in favor of the contestant.</p> <p>Where the evidence tending to show that a testatrix of advanced age was incompetent is very weak, no substantial error in the charge or in the reception of evidence may be disregarded.</p> <p>An instruction to the jury that the burden of showing by a preponderance of the evidence that the testatrix was competent at the time she made the will was on the proponent, is proper, but it is error to instruct them that if after considering all of the evidence a “ doubt ” remains in their minds as to the mental capacity of the testatrix to make a will, they must answer in the negative the question as to whether she had such capacity, since this instruction may have been thought to require not only proof by a preponderance of evidence, but beyond any doubt.</p> <p>In a civil action the party upon whom the burden of proof rests is only required to bear that burden by the preponderance of the evidence, and he does not bear it if the evidence be evenly balanced.</p> <p>A commitment of a testatrix to an insane asylum several years prior to the execution of her will being ex parte, is,not an adjudication or competént to show that she was insane at the time.</p> <p>Where the surrogate at the request of the counsel for the proponent instructed the jury that the prior commitment of the testatrix was not a legal adjudication that she was at that time insane, but the trial lasted three weeks and the jury were not specifically instructed that the recitals in the commitment were not evidence of the facts, any error in receiving said commitment generally, and permitting it to be read at length to the jury, and recited in the hypothetical question as proof of the facts therein recited was not cured.</p> <p>Records or case books of an insane asylum relating to a testatrix are not admissible as public records in a proceeding for the probate of a will.</p> <p>Records and entries therein received in evidence under the ancient document rule must relate not to opinions but to facts presumably within the knowledge of the party making the record or entry, whose death after thirty years is presumed, and concerning which it would have been competent for him to have given testimony, if alive.</p> <p>Records and entries shown to have been made in the usual course of business at the time of the occurrence to which they relate and pursuant to duty, are, without regard to their antiquity, generally admissible as between third parties on proof of the death of the person who made them.</p> <p>Recitals in the commitment and records of an insane asylum which constitute narratives of past events and conclusions as distinguished from statements of facts and opinions are inadmissible as evidence.</p> <p>On the issue of insanity, a lay witness may state what he saw or heard the person whose sanity is in question say or do, and whether what was so done or said impressed him as rational or irrational; and medical experts on mental diseases may go further and give their opinions on acts and conditions observed and found and stated by them or on other facts assumed to be true with respect to the precise mental state of the person and his competency to transact business.</p> <p>On the issue as to the mental condition of a testatrix neither side should derive any advantage from the fact that a lay witness or a medical expert has died, leaving a record of his observations or opinions concerning the mental state of the person whose competency is in question.</p> <p>If the commitment of a testatrix to an asylum and her confinement therein is controverted, it is competent to receive the commitment and records of the asylum to show that she was lawfully committed and detained • and from those facts the inferences may be drawn that she was of unsound mind during that period, but there is no necessity for resorting to the ancient document rule, at least not for opinion evidence with respect to the competency of a party to make a will thirty years or more after the making of the record of the opinion with respect to her mental condition.</p> <p>A decree adjudging the testatrix to have been incompetent to make a will and denying probate reversed, and a new trial granted, because of error in the charge with respect to the extent of the burden of proof and the erroneous reception in evidence of the commitment of the testatrix to an asylum and the records therein.</p>

Appeal by the defendant, The Hatters’ Fur Exchange, Inc., from so much of the order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of December, 1918, as grants a preference in this action and directs that the cause be placed on the day calendar of Part 14 for trial on January 6, 1919.

<p>Corporations — stockholder cannot sue under sections 90 and 91 of General Corporation Law — pleading — complaint not stating representative action by stockholder.</p> <p>A stockholder who is not a director of a corporation cannot bring an action under sections 90 and 91 of the General Corporation Law to compel directors to return alleged unlawful profits and for an injunction against the payment of their salaries and to obtain their removal from office, etc.</p> <p>An action under said sections only lies when the plaintiff is a director at the time of the commencement of the action, which fact he should allege specifically, or by an allegation of other facts which by necessary inference will show him to be such.</p> <p>Such action cannot be maintained as a representative stockholder’s action where it does not purport to be such, or it is not stated in the complaint that the action is brought for the plaintiff and others who may come in and contribute to the action.</p>

Appeal by the corespondent, Edward E. Hoenig, 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 28th day of June, 1916, upon the decision of the court after a trial at . the New York Special Term. The judgment was rendered upon defendant’s counterclaim and awarded to the defendant a divorce against plaintiff.

Appeal by the plaintiff, Louis Meyer, from an order of the Supreme Court in favor of the defendant, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of July, 1918, overruling his demurrer to a separate defense contained in paragraphs 6 and 7 of the answer.

<p>Agricultural Law, section 65, construed — license of purchaser of milk for shipment — when domestic corporation a “producer” within meaning of statute — word “ person ” includes corporations.</p> <p>Section 55 of the Agricultural Law, relating to the licensing of purchasers of milk to be shipped, should be liberally construed to accomplish the purpose intended by the Legislature, which was to secure to those engaged in dairy pursuits pay for the milk and cream sold to a licensee to be consumed or manufactured in a distant city.</p> <p>A domestic corporation, with a capital stock of $5,000, all owned, with the exception of one-half of one share, by producers of milk organized for the purpose of carrying on the manufacture of butter and cheese and the sale of milk upon a co-operative plan, which sold milk to one who had procured a license to engage in the business of buying milk pursuant to the provisions of section 55 of the Agricultural Law, is a “ producer ” of milk and cream and entitled to the protection of the bond of the purchaser, under the provisions of said section, so as to permit it to recover from said purchaser in an action by the Commissioner of Agriculture, pursuant to the statute.</p> <p>Even if said corporation be not a “ producer ” of milk, still it comes within the general provisions of the statute to the effect that the bond is conditioned for the prompt payment of all amounts due for milk or cream sold to the licensee during the period covered by the license.</p> <p>The word “ person,” as used in section 55 of the Agricultural Law, under the General Construction Law, includes corporations.</p> <p>Page and Sheabn, JJ., dissented, with opinion.</p>

Appeal by the defendants, Whitney Warren and another, from an interlocutory 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 23d day of November, 1916, upon the decision of the court after a trial at the New York Special Term. The judgment directed an accounting.

<p>Workmen’s Compensation Law — provision of insurance policy as to consent to assignment — transfer of policy to wife of employer who continued business after his death — when collection of premium does not estop insurer from contesting liability under policy — what does not constitute cancellation of insurance contract within meaning of section 64.</p> <p>An employer having a policy of insurance with a casualty company for one year, providing that no assignment or change of interest under said policy should bind the company unless its consent should be indorsed thereon or attached thereto, signed by a duly authorized officer of the company, died prior to the expiration of the policy, leaving all of his property to his wife who took charge of and continued the business in the same way, and before the expiration of the policy requested the company, through a broker, to transfer the insurance to her, and said company attached a writing prior to the expiration of the policy as follows: “ The interest in this policy is hereby transferred from twelve o’clock noon ol this date to Meta Brummer.” On the preceding day an employee of the wife suffered an accidental injury and on the next day the wife, as employer, filed a claim for compensation. More than two months thereafter, the original policy having expired, the casualty company presented a bill for additional insurance premium which the wife paid in full. The company claims it was not notified of the accident until more than a month after the payment of said premium.</p> <p>Held, that an award against the wife and the casualty company as insurer should be reversed so far as it is against the latter.</p> <p>The performance of the condition of the policy as to assignment was essential to create liability against the insurer to another.</p> <p>The collection of the balance of the earned premium did not estop the casualty company from contesting liability under the policy.</p> <p>There was not a cancellation of an insurance contract within the meaning of subdivision 5 of section 54 of the Workmen’s Compensation Law. Kellogg, P. J., and Woodwabd, J., dissented, with opinion.</p>

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 5th day of March, 1918, upon the verdict of a jury for $9,975, and also from an order entered in said clerk's office on the 9th day of May, 1918, denying defendant's motion for a new trial made upon the minutes.'

Appeal by the defendant, Claremont Iron Works, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of June, 1918, upon the verdict of a jury for $1,000, later reduced by consent to $500, and also from an order entered in said clerk’s office on the 4th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Tiffany Studios, 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 18th day of December, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of December, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Heading — parties plaintiff — action for goods sold — proof that sale was made nob by plaintiff but by corporation previously formed.</p> <p>A complaint in an action for goods alleged to have been sold by the plaintiff to the defendant to which a general denial is pleaded, should be , dismissed where it is proven that the goods were sold, not by the plaintiff, but by a corporation previously formed by him to take over his business.</p>

Appeal by the plaintiff, Robert H. McNeill, 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 New York on the 21st day of June, 1918, dismissing the complaint on the merits upon the decision of the court after a trial before the court, a jury having been waived.

Appeal by the defendant, The Travelers Insurance Company of Hartford, Connecticut, 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 22d day of May, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Railroads — negligence — injury to passenger on street car caused by shaft of truck which penetrated car — erroneous charge —. degree of care required of motorman confronted with sudden danger.</p> <p>Where, when the defendant’s street car in the city of New York, moving northward, was approaching a cross street, the driver of a truck traversing the cross street drove upon the track when the car was not more than a car length distant, with the result that one of the shafts of the truck entered the side of the car and injured the plaintiff, a passenger, it was error for the court to charge in substance that it was the duty of the defendant to carry its passengers safely “ so far as human care and foresight will go ” and that this required the exercise of “ the utmost care and diligence of very cautious persons.”</p> <p>A carrier does not insure the safe transportation of its passengers. The common-law rule of liability, as applied in this jurisdiction, holds the carrier liable only for injuries which it could have prevented.</p> <p>Where the negligence of a common carrier of passengers is predicated on the negligence of its motorman driving a street car the rule of ordinary care should be applied throughout in determining the care required to be exercised, not by the management of the company, but by the motorman operating the car, whether in the particular circumstance he was confronted with a sudden emergency or not.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office June 3, 1918, overruling a demurrer to the amended complaint.</p>

<p>Negligence — impure food — insufficient proof.</p>

Appeal by defendant from an order of the Supreme Court, entered in the Bronx county clerk’s office January 29, 1918, granting the plaintiff’s motion for leave to serve an amended complaint herein.

Appeal by defendant from an order of the Supreme Court, entered in the Bronx county clerk’s office May 9, 1918, denying a motion to strike from the record an alleged amended complaint.

<p>Negligence — death — master and servant — improper scaffold— custom.</p>

Judgment reversed, and judgment ordered for plaintiff, with costs, upon the ground that Silkman’s undertaking with Nolan was personal, and was not, and did not purport to be, in any official capacity that Silkman bore to the Park Mortgage Company.

<p>Order affirmed, with ten dollars costs and disbursements.</p>

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

<p>Judgment and order reversed, and complaint dismissed, with costs.</p>

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

Appeal by the plaintiff, American Raveller Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 13th day of December, 1916, upon the report of a referee appointed herein to hear and determine the issues.

<p>Judgment and order reversed and new trial granted, with costs to appellant to abide event.</p>

<p>Judgment reversed and new trial granted, with costs to appeHant to abide event.</p>

<p>Plaintiff’s exceptions sustained, motion for new trial granted, with costs to plaintiff to abide event.</p>

<p>Judgment and order reversed, with costs, and complaint dismissed, with costs.</p>

<p>Judgment of County Court and judgment of conviction of Children’s Court of Buffalo reversed.</p>

<p>Judgment and order reversed and new trial granted, with costs to appellant to abide event.</p>

<p>Order affirmed as a matter of law and not in the exercise of any discretion, without costs.</p>

<p>Plaintiff’s exceptions sustained, motion for new trial granted, with costs to plaintiff to abide event.</p>

<p>Appeal from an order of the Supreme Court, entered in the Albany county clerk’s office February 14, 1918.</p>

<p>Appeal from an order of the Supreme Court, entered in the Ulster county clerk’s office August 8, 1918.</p>

Certiorari issued out of .the Supreme Court February 2, 1918, to review the determination of the Public Service Commission for the Second District, dismissing the complaint of the relator against the United Gas, Electric Light and Fuel Company.

<p>Judgment affirmed, with costs, on the authority of Remington v. State of New York (116 App. Div. 522).</p>

Appeal by Adele Hollweg, contestant, from an order of the Surrogate’s Court of Queens county, entered in said court on the 28th day of December, 1917, setting aside the verdict of a jury which negatived the validity of a paper propounded as the last will of Anna Schlichthorl, deceased, and granting a new trial.

<p>Motions denied, without costs.</p>

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, without prejudice to plaintiff’s right to move for inspection of books after issue joined upon proper papers.

Judgment unanimously affirmed, on the ground that plaintiffs’ structures having been lawfully erected above mean high-water mark did not become subject to removal without legal process, when the sea had advanced so as to flow under them.

<p>Judgment and' order reversed, with costs, and complaint unanimously dismissed, with costs.</p>

<p>Judgment and orders reversed, with costs, and complaint unanimously dismissed, with costs.</p>

<p>Plaintiff’s motion for reargument granted, and decision handed down May 3, 1918 (See 184 App. Div. 925), upon which no order has yet been entered, is amended to read as follows: Judgment reversed and new .trial granted, with costs to appellants to abide the final award of costs.</p>

<p>Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to Court of Appeals denied.</p>