Volume 186 — New York Appellate Division Reports

Appeal by the defendant, Tide Water Oil Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of February, 1918, as amended by an order entered in said clerk’s office on the 13th day of March, 1918, nunc pro tunc as of February 23, 1918. The judgment was entered upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Mayer S. Auerbach 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 30th day of March, 1918, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, William D. Sporborg, as administrator with the will annexed, 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 May, 1918, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of May, 1918, denying appellant’s motion for a new trial made upon the minutes.</p>

<p>Executors and administrators — when executors enjoined from acting under letters testamentary pending appeal — when appeal from decree admitting will to probate or granting letters does ; not stay issuing of letters — when order that preservation of estate requires that letters should issue granted — general letters — restrictive letters — effect of perfected -appeal — effect of issuance of letters testamentary upon temporary administrator.</p> <p>Where an appeal was perfected and the notice of appeal served on the executors and the attorney for the proponents on the same day after letters testamentary were issued, and it appeared that there was a devise of certain real estate, the rents of which amounted to a substantial sum, that the devisees are not shown to be of financial responsibility, and that the executors are- not required to give bonds, a motion for an order restraining the executors from acting under the letters testamentary issued to them pending the appeal and continuing the management of the estate by temporary administrators should be granted, even though the decree entered by the surrogate establishing the will contained the words “ the surrogate being satisfied on the argument that the preservation of the estate requires that the letters should issue.”</p> <p>The addition of such words was mere surplusage and has no effect whatsover except to show the intention of the surrogate, if possible, to forestall and, so far as the administration of the estate is concerned, to render nugatory the effects of a stay.</p> <p>Under section 2557 of the Code of Civil Procedure, providing that “ An appeal from a decree of the surrogate admitting a will to probate or granting letters testamentary * * * does not stay the issuing of letters where, in the opinion of the surrogate manifested by an order, the preservation of the estate requires that the letters should issue,” “ an order ” is only required where the appeal is taken prior to the issuance of the letters and the stay operating by virtue of the perfected appeal would leave the estate without any one charged with the power or duty of conserving the assets.</p> <p>Letters testamentary issued under a decree before a notice of appeal is served are general letters, while letters issued after appeal pursuant to the order are restrictive letters.</p> <p>Under sections 2557 and 2560 of the Code of Civil Procedure, the effect of a perfected appeal is to stay the execution of the decree, and if perfected before letters are issued, letters can only issue on an order of the surrogate; and if ttíe appeal is taken after letters issued, the executors can only act if such an order is made after the appeal is taken. And then the letters are restricted to the limited powers specified. If such an order is not made then the executors are stayed from exercising their power or authority.</p> <p>Upon the issuance of letters testamentary, a temporary administrator becomes functus officio and the surrogate cannot thereafter continue the temporary administrator.</p>

<p>Appeal by the defendants, Frank N. B. Close 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 7th day of March, 1918, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered hi the office of the clerk of the county of Putnam on the 23d day of October, 1918, upon a dismissal of the complaint on the opening.

Cebtiobabi issued out of the Supreme Court and attested on the 21st day of August, 1916, directed to Martin Saxe and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in assessing the tax against the relator pursuant to section 186 of chapter 62 of the Laws of 1909, being the Tax Law (Consol.

Appeal by the plaintiff, Jerome Sternstein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of May, 1918, sustaining defendants’ demurrer to the amended complaint on the ground that several causes of action, one in fraud and deceit, and the other for breach of contract of employment, were improperly united.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the County of New York, entered in the office of said Surrogate’s Court on the 13th day of September, 1918, affirming a prior order fixing the transfer tax herein, with notice of an intention to bring up for review two other orders entered in the office of said court on the 12th day of April, 1918, and the 1st day of August, 1918, respectively.

Appeal by the defendants, Lawson Purdy and others, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 22d day of March, 1917, reducing an assessment for taxation for 1915 upon real property in the borough of The Bronx.

<p>Insurance — action upon life insurance policy — issue as to truth of statement in application as to age of insured — evidence — admissibility of declarations of insured — verdict against weight of evidence.</p> <p>In an action against a fraternal insurance company upon a policy of insurance, it appeared that the age of the insured was most material, for only persons between certain ages were eligible to membership, and in addition the rate of premiums was graded according to age; that in the ' proof of death furnished by the daughter of the insured she overstated his age by twelve years, assuming that his statement in his application was true; that the defendant introduced in evidence two applications for life insurance by the insured in which the statements as to his age differed from his application.</p> <p>Held, that a verdict in favor of the plaintiff is against the weight of the evidence upon the issue as to whether or not the statement of age in the application was false.</p> <p>Declarations may constitute satisfactory evidence upon the question as to the age of an insured.</p>

Appeal by the defendant, Louis Frankenthaler, from a judgment of the Supreme Court in favor of the plaintiff, entered in th.e office of the clerk of the county of New York 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 26th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.

<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 New York on the 26th day of March, 1918, upon the verdict of a jury for $7,500, 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, John C. Rodgers, 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 March, 1918, overruling his demurrer to the complaint.

Appeal by the defendant, H. M. Goldstein Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of November, 1918, granting plaintiff’s motion for a review of the taxation of the defendant’s costs herein.

<p>Negligence — action for death statutory — limitation of action under New Jersey statute —■ condition precedent — interpretation of foreign statute binding upon courts of this State — right conferred by foreign statute cannot be enlarged by Legislature of this State — pleading — complaint in action for death from accident in New Jersey — period of limitation not suspended during alleged payments under New Jersey Workmen's Compensation Act.</p> <p>The sole right to maintain an action to recover damages for death caused by negligence is created by and depends upon the provisions of the statute of the State where the accident occurred.</p> <p>The rule in the State of New Jersey, established by the highest court of " said State, that the two-year period within which an action is required to be brought under the Death Act of said State is not a period of limitation, but is an integral part of the remedy and a condition precedent to the maintenance of an action under the statute, is binding upon the courts of this State.</p> <p>The Legislature of this State may not in any way enlarge a right conferred by the statute of another State.</p> <p>Hence, a complaint in an action for death resulting from an accident in the State of New Jersey, in which it is alleged that the action is brought within one year after the termination of the decision or adjudication of the United States District Court dismissing an action by the plaintiff instituted within two years, and also that said action is brought within one year after the expiration of the two years provided for under the New Jersey statute, should be dismissed.</p> <p>A contention by plaintiff that the running of the Statute of Limitations was suspended during the period covered by payments under the New Jersey Workmen’s Compensation Act, not having been alleged in the complaint, was not available upon a demurrer.</p> <p>Moreover, if such fact had been alleged it would not change the legal situation, since there is no provision in the New Jersey statute extending the time fixed for instituting an action for any such reason.</p>

Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 26th day of March, 1918, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 26th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Application by Brooklyn Bar Association under Judiciary Law, section 88,* for such action as this court may decree proper, upon the charge made by the petitioner that the respondent attorneys have violated section 280 of the Penal Law.†</p>

<p>Appeal by the defendant, Staten Island Midland 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 Richmond on the 17th day of July, 1918, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 26th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Angelo Legniti, 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 28th day of May, 1917, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, John A. O’Connor, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of Albany on the 2d day of February, 1918, upon the report of a referee adjudging that he be limited in his judgment against the defendants to the sum of $4,373, with interest. Appeal by the defendants, G. Edward Graff and another, from the whole of said judgment.

<p>Appeal by the defendants, William Goldberg 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 St. Lawrence on the 13th day of August, 1917, upon the decision of the court after a trial at the St. Lawrence Special Term.</p>

<p>Highways — waters and watercourses — raising of highway by State resulting in damage to adjoining land from floods — liability for damages.</p> <p>The State by raising a highway several feet by means of concrete work designed to furnish protection to a State bridge, pursuant to chapter 512 of the Laws of 1911, without interference with the stream itself, is not thereby rendered liable to the owner of land between the highway and the stream who claims that at flood periods the stream overflows its banks, passes over his premises and is prevented from leaving the same by flowing over the highway as formerly.</p> <p>The change of the grade of a street or highway or of a railroad does not give rise to an action for damages, unless the Legislature has provided therefor.</p>

<p>Appeal by the plaintiff, Charles S. Wood, and by the defendants, Indian Lake Mill Company and another, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Warren on the 29th day of May, 1918, upon the decision of the court after a trial at the Saratoga Special Term.</p>

Appeal by the defendant, Southern Tier Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 13th day of June, 1918, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 17th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the relators, Frank C. Moenig and others, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 10th day of May, 1918, quashing and dismissing the writ of certiorari herein as a matter of law and not in the exercise of discretion.

<p>Appeal by the defendant, New York City Interborough Railway Company, from a decision and award of the State Industrial Commission dated the 28th day of June, 1918, requiring it to pay into the State fund the present value of the award to the widow and children of the deceased under section 27 of the Workmen’s Compensation Law (Consol. Laws, chap. 67; Laws of 1914, chap. 41), as amended by chapter 705 of the Laws of 1917.</p>

Appeal by the claimant, Glenn Ross, from a judgment and decision of the Court of Claims, entered in the office of the clerk of said court on the 1st day of April, 1918, dismissing the claim herein.

<p>Decedent’s estate — note given to wife of intestate without consideration — repudiation of note by widow — administrator should not charge note against estate — duty of administrator to infant — alleged contract to pay administrator for defending litigation — unauthorized investment by administrator — account surcharged.</p> <p>An administrator of a decedent who left a widow and an infant daughter should not charge against the estate a note given by the decedent to his wife without consideration, where the wife subsequently repudiated the note, renounced all rights thereunder, and disclaimed all knowledge of it.</p> <p>Evidence examined, and held, that the note never had any legal inception and that the testator’s widow when verifying a claim on the note against the estate was not aware of the nature of the paper she signed.</p> <p>The administrator on his final accounting claimed $4,000 under an alleged contract with the widow whereby he was to act as administrator and also to protect the estate against threatened litigation. It appeared, however, that the administrator performed no services for the estate or for the widow, except as an administrator, and that he employed and paid other attorneys to defend the litigation against the estate. Held, that the alleged contract had no relation to the note given by the decedent to his wife and that any contract made by the widow should be settled out of her interest in the estate and was not binding as against the infant.</p> <p>It became the duty of the administrator to acquiesce in the attitude of the widow when she renounced her claim as creditor by virtue of the note.</p> <p>Held further, that the contract as evidenced by the conversations of the parties only entitled the administrator to the $4,000 in ease he was successful in defending the litigation against the estate, which was not the case.</p> <p>It is the duty of an administrator to settle an estate speedily and distribute the funds, and if, instead of so doing, he invests the funds the income belongs to the estate and not to him.</p>

<p>Appeal by the defendant, Charles W. Little, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of June, 1918, upon the verdict of a jury for $1,000.</p>

<p>Tax — franchise tax on manufacturing and mercantile corporations— Tax Law, section 219-j, construed — amendment of statute to cure unfairness of former act — said amendment although retroactive does not impair contract rights — constitutional law.</p> <p>Section 219-j of the Tax Law, relating to the annual franchise tax on manufacturing and mercantile corporations, which provided that if any such corporation shall pay taxes on personal property or capital stock assessed in any tax district in the year 1917 the corporation should be entitled to credit for the amount of such taxes so paid on its account for taxes first assessed against it under this article by the Tax Commission, etc., was unfair in those municipalities whose fiscal year was not coterminous with the calendar year and to cure such inequality said section was amended, in part, by chapter 271 of the Laws of 1918, so that in such tax districts credit should only be allowed for the amount of such part of the taxes so paid locally as the portion of the year 1918 for which such taxes shall have been paid, bears to the entire calendar year.</p> <p>As such amendment to section 219-3 was expressly made retroactive, a corporation in the city of Buffalo, where the fiscal year begins July first, is not entitled to a credit on its franchise tax for more than one-half of the local tax paid to said city in 1917.</p> <p>While the State may by contract exempt a party from taxation and the obligation of .such contract, if made, becomes binding, it is never to be assumed that the State has by any act fettered its power of taxation in the future unless it so clearly appears.</p> <p>Section 219-j of the Tax Law as it stood in 1917 did not create a contract between the State and manufacturing or mercantile corporations, and, hence, there was no impairment of the rights of such corporations, by the amendment to said section made by chapter 271 of the Laws of 1918. And this is true whether or not a corporation had in the meantime paid the franchise tax contemplated by the act of 1917.</p>

Appeal by the defendants, J. Hunting Cobb and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 22d day of August, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of April, 1918, denying defendants’ motion for a. new trial made upon the minutes, with notice of an intention to bring up for review an intermediate order entered in said…

Appeal by the defendant, The Globe and Rutgers Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 23d day of March, 1918, upon the decision of the court after a trial before the court without a jury.

Appeal by Hanora L. Kennedy, as administratrix, from part of a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on or about the 27th day of July, 1917, judicially settling her accounts herein.

<p>Workmen’s Compensation Law — death of captain of vessel leaving same after discharge — proof not justifying award.</p> <p>Where the captain of a tugboat was called to the offices of the owner and discharged for intoxication and returned to the boat to get his personal belongings, but instead of leaving remained for dinner and subsequently left the boat and afterwards his dead body was found in the river in that vicinity, his dependents are not entitled to an award under the Workmen’s Compensation Law, there being no proof that he fell from the boat instead of from the wharf.</p> <p>Under the circumstances, there was no proof that the deceased came to his death through an accident arising in the course of his employment.</p> <p>John M. Kellogg, P. J., dissented.</p>

<p>Workmen’s Compensation Law — permission to employer to carry its own risks made in 1914 — unauthorized revocation of permit because employer refuses to commute sum due widow — statutes construed — constitutional law — impairment of prior contract — right of employer to test validity of order of Commission.</p> <p>The State Industrial Commission, having in 1914 granted permission to an employer to carry its own risk of paying compensation pursuant to subdivision 3, section 50 of the Workmen’s Compensation Law, cannot thereafter revoke said permission upon the sole ground that the employer refuses to obey an order of the Commission requiring it to commute an award made to a widow and children by lump sum payment into the State insurance fund, the amount to be determined by section 27 of the Workmen’s Compensation Law, as amended by chapter 705 of the Laws of 1917. i This because at the time the agreement with the State Industrial Commission was made, the Commission had no power to commute an award of Í death benefits to widows because there was no means of estimating the contingency of remarriage.</p> <p>Although section 27 of the Workmen’s Compensation Law, as amended in 1917, provided a method for the estimation of the present value of awards of future payments to widows, and the Commission became empowered to require the commutation of such awards, the statute could not affect the agreement made with the Commission before its passage, or extend the obligations of the employer under the prior agreement.</p> <p>In any event, the Commission had no right to penalize the employer by revoking its previous permission because the employer resorted to the courts to test the validity of the Commission’s order.</p> <p>Cochrane, J., dissented.</p>

Appeal by the defendant, Rutland 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 Rensselaer on the 22d day of May, 1918, upon the verdict of a jury for $9,267, 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.

Appeal by the defendant, The State of New York, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 12th day of August, 1918.

<p>Submission of controversy over disposition of corpus of trust fund — jurisdiction — controverted questions of fact cannot be determined— dismissal of proceeding — failure to make persons interested parties.</p> <p>Upon the submission of a controversy, pursuant to section 1279 of the Code of Civil Procedure, relating to the disposition of the corpus of a trust fund, the court has no authority to determine controverted questions of fact.</p> <p>Such a submission should be dismissed where persons interested in the controversy have not been made parties.</p>

Appeal by the defendant, Alice Searle, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 31st day of July, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of August, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Cornelius C. Vermeule, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 24th day of September, 1917, upon a decision of the court dismissing the complaint and awarding defendant judgment on its counterclaim after a trial before the court, a jury having been waived.</p>

<p>Appeal by the defendant, William Sheridan, from a judgment of the County Court of Kings county rendered against him on the 1st day of July, 1918, convicting him of the crime of attempted extortion, with notice of an intention to bring up for review orders denying his motions for a new trial and in arrest of judgment.</p>

Appeal by the defendants, Everett E. Wheeler, individually and as administrator, 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 Suffolk on the 3d day of July, 1918, confirming the report of a referee, directing the receiver to disallow all claims for preference, and making certain allowances for legal expenses.

<p>Corporations — elections — inspectors bound by stock certificate book — authority of president to determine qualifications of stockholders as voters — jurisdiction of Supreme Court in summary review of election under section 32 of General Corporation Law.</p> <p>Inspectors of corporate elections are bound by the stock certificate book and have no authority to prevent stockholders appearing thereon from voting.</p> <p>The president of a corporation has no right to determine the qualifications of stockholders as voters at an election.</p> <p>Section 32 of the General Corporation Law, authorizing the Supreme Court to investigate in a summary way corporate elections, purports to deal with elections only, and matters directly related to them, and does not permit of an inquiry into the question whether or not the stock standing in the name of a stockholder on the books of the corporation represented more than his contribution to the purchase price of property transferred to the company, or his investment as a stockholder. Such question should be decided by an action.</p>

<p>Highways — motor vehicles — General Highway Traffic Law, section 12, giving right of way at intersection to vehicle approaching from right construed — contributory negligence — failure to give right of way.</p> <p>Under section 12 of the General Highway Traffic Law, providing that “ every driver of a vehicle approaching the intersection of a street or public road shall grant the right of way at such intersection to any vehicle approaching from his right,” the words “ grant the right of way ” mean that at such a crossing the driver of one vehicle has an affirmative duty to keep out of the other’s way. This requires him to slow, to stop, and if need be to reverse, if otherwise the crossing vehicles are likely to come into contact. Such a rule cannot be set aside by a jury, where these two elements appear — full view of the vehicle approaching from the right, and entire failure to take any steps to keep out of its path.</p> <p>Where this duty to grant the right of way is completely ignored, the driver is guilty of contributory negligence preventing a recovery.</p>

<p>Appeal by the defendant, Charles C. Elston, from a judgment of the County Court of Orange county, rendered against him on the 25th day of January, 1918, convicting him of the crime of rape in the second degree.</p>

Appeal by the plaintiffs, Harry C. Williams, individually and as administrator, and others, 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 the 14th day of November, 1918, affirming a final order in summary proceedings entered in the office of the clerk of the Municipal Court of the City of New York, Borough of Manhattan, Fourth District, on the 13th day of May, 1918, in favor of the above-named…

Appeal by the defendant, John J. Johnston, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, rendered against him on the 28th day of February, 1917, convicting him of the crime of forgery in the second degree.

Appeal by Helen J. Nims from an order or decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 16th day of October, 1917, denying her petition for an order that she be paid a certain sum for her support and maintenance from the principal of a trust fund provided by the will of Robert Ward, deceased.

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

<p>Appeal by the defendant, Placid Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of May, 1917, upon the decision of the court after a trial at the New York Special Term.</p> <p>The judgment declared the title to certain real estate to be unmarketable and directed that plaintiff recover $1,000 earnest money paid by it to defendant together with the expenses of the examination of the title.</p>

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

<p>Crime — maiming and assault in second-degree as fourth ofíense — new trial — verdict against weight of evidence — presumption of innocence — reasonable doubt — evidence of police detective as to admissions or confessions by defendant.</p> <p>Evidence upon which a defendant was convicted of the crime of maiming and assault in the second degree as a fourth offense examined, and held, that a new trial should be granted under section 527 of the Code of Criminal Procedure, providing that “ And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence.”</p> <p>Under section 389 of the Code of Criminal Procedure a judgment of conviction should not be sustained unless the proof justifies a conclusion by the jury that the prosecution overcame the presumption of the defendant’s innocence by proof to the contrary, and satisfactorily established his guilt beyond a reasonable doubt.</p> <p>Testimony of a police detective as to oral admissions by the defendant in the nature of a confession should be weighed in consideration of his calling and his official relation to the case.</p>

<p>Will — joint will made by husband and wife — execution of second will inconsistent with joint will — former will not admitted to probate — resulting trust in favor of beneficiary under joint will — will consisting of single instrument signed by both parties — agreement evidenced by will itself — equity — when joint will is irrevocable — fraud — evidence — testimony of beneficiary under second will.</p> <p>Although a husband and wife had made a joint will giving to the survivor all property owned by either of them jointly or severally, where the wife subsequently made another will making other disposition of her property the joint will should not be admitted to probate on the death of the wife even though it was the result of a contract between her and her husband.</p> <p>The relief to which the surviving husband is entitled is not by establishing the joint will as the last will of his wife, because it was not her last will, but by compelling the performance of her obligations by her children and devisees under her second will which should be admitted to probate, the wife’s representatives being trustees of a resulting trust for the benefit of the surviving husband.</p> <p>Where parties, pursuant to an agreement, make a joint will founded upon a sufficient consideration, each leaving property to the other, the will made in pursuance of such contract is irrevocable where, if the contract be abandoned, the other party cannot be restored to his former position, and a refusal to complete the agreement is in the nature of a fraud.</p> <p>The joint will signed by both parties differs from a mutual will which may be executed by either party without the knowledge of the other, which latter does not necessarily import any mutual or reciprocal agreement. Where both parties executed their wills by the same instrument it is not possible that the course could have been adopted without some previous understanding or agreement between them.</p> <p>A joint will executed by a husband and wife as a single instrument providing that “We give unto the survivor of us all and any real and personal property either owned by us jointly or severally for his or her own use and benefit forever,” shows on its face that it was the result of an agreement founded upon a valuable consideration and differs from mutual or identical wills which exhibit no intrinsic evidence that they were made in consequence of an agreement between the parties.</p> <p>It is not essential to the intervention of equity in order to prevent the accomplishment of fraud that an agreement should be established by direct evidence.</p> <p>Where it appears that the children of the wife by a former marriage secretly, induced her to make a new will contrary to the terms of the former joint will, the fact that upon her death bed she admitted in the presence of her husband that she had made the second will was not notice of the revocation of the former will to which her husband was entitled.</p> <p>A son of the wife by the former marriage who was a beneficiary under the second will was not competent to testify as to the death bed statements of his mother although her husband was present.</p> <p>Held, that a finding that there was no evidence of an agreement or contract between the husband and wife as a basis for the former joint will is contrary to the evidence and contrary to law, and that judgment should be directed for the plaintiff establishing the former will as binding upon the beneficiaries under the second will and that they should be enjoined from asserting title to or interfering with the plaintiff's possession of his wife’s property.</p>

<p>Appeal by the plaintiff, Theron G. Strong, 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 3d day of December, 1918, denying his motion for judgment on the pleadings consisting of the complaint and a demurrer thereto and granting the cross motion of the defendant, George G. Dutcher, as trustee, for the same relief.</p> <p>The plaintiff, an attorney and counselor at law, brought this suit in equity to charge a trust fund in possession of the defendant Dutcher as surviving trustee, etc., with the sum of $2,700, compensation for legal services rendered by the plaintiff in protecting and preserving the trust estate from loss. The complaint alleges that one J. Spencer Turner died leaving a will in which he created distinct testamentary trusts in favor of his children, among whom was one Sue Lloyd Parker, one of the defendants. Mrs. Parker was given a life interest in one-fifth of the residuary estate with remainder to her issue now consisting of her daughter the defendant Gertrude E. Pike. Mrs. Pike’s infant son Arthur is also made a party defendant because of his contingent interest. The complaint alleges that in 1908 the trustee invested $330,000 due in 1911, and that on the date of the execution of the mortgage the trustee, Dutcher, with a cotrustee then living, executed an instrument in which Mr. Dutcher acted in a dual capacity, as trustee of the Turner estate and as president of the Atlantic Dock Company, in which it was declared that the interest of the trustees in the mortgage was $330,000 and of the dock company $105,000, and that the trust interest was prior to and superior to the interest of the dock company. In 1916 the principal of the mortgage was four years overdue, interest and taxes were in arrears and the mortgaged premises were incumbered by liens and notices for violations of city ordinances involving expenditures of large sums of money. In 1916 the dock company brought an -action to foreclose the mortgage, making Dutcher as trustee a defendant and charging that in making the investment of the corporate funds he had been guilty of a violation of his duty as president, director and counsel for the company, and praying that certain sums paid by him on account of interest, taxes, etc., should be refunded or that such amounts be declared prior hens upon the mortgaged premises, and that the principal of the corporate investment should be declared an equal lien with the interest of Butcher as trustee. Butcher as trustee also began a suit to foreclose the mortgage, and a receiver was appointed to take charge of the property after the commencement of the foreclosure suits. Mrs. Parker, the beneficiary in the trust fund created by her father’s will, retained the plaintiff to render services as an attorney in the preservation of her share in the estate, claiming that it was in jeopardy and threatened with loss, stating at the time of the retainer that she was possessed of no means to pay plaintiff for his services and that he must look to the trust fund for payment. The plaintiff alleges that he assented to this arrangement and thereafter rendered services in protecting and preserving the trust estate. He alleges that his services were worth $2,700, and that Mrs. Parker and her daughter, Mrs. Pike, acknowledge the justice and reasonableness of his demand and consent that it be paid, but that Mr. Butcher refuses to pay the same. The plaintiff asks judgment that the cestui que trust was justified in retaining the plaintiff, that she had power to incur the reasonable and necessary expenses of protecting and preserving the estate, that the value of plaintiff’s services be declared a lien upon the principal of the fund held in trust for Mrs. Parker and that when determined the trustee should pay the amount thereof. The defendant Butcher as surviving trustee demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, and the demurrer was sustained at the Special Term.</p>

<p>Will — equitable conversion of realty — trust for ten years or for two lives—provision that on death of life beneficiary his share shall go to “ lawful heirs," construed — payment of legal interest after expiration of trust period — equitable conversion dates from death of testator — commissions of deceased executor —• discretionary power of surrogate to allow commissions — proof of service rendered necessary to award of discretionary commissions.</p> <p>Where a will worked an equitable conversion of real estate into personalty and gave the executors and trustees a power of sale, the trust to end at the expiration of ten years or upon the death of the first two life tenants, and the testator provided that if any of the life beneficiaries should die before the termination of the trust period the income payable to the one so dying shall be paid to his or her “ lawful heirs,” and later in the will the testator defined the meaning of the term “ lawful heirs ” by stating that they shall be deemed to be the persons to whom real estate would descend in cases of intestacy under the laws of the State of New York in force at the time, the testator did not mean that the property equitably converted should descend as real property on the death of a life beneficiary, but on the contrary he intended such share to pass under the Statute of Distribution. The disposition of said property depends upon the intent of the testator to be gathered from the will itself.</p> <p>Where the will directed payment to the life tenants semi-annually during the trust period, interest at five per cent, the trustees on the expiration of the trust were justified in paying income at the legal rate of six per cent, the real estate not yet having been sold. This because a legacy draws legal interest from the date of its maturity.</p> <p>Commissions to be awarded to an executor are to be computed under the law in force at the time of mating the award.</p> <p>The representatives of deceased executors can have no claim for commissions against the estate other than that to which they succeeded upon the death of their testators, for their property rights became fixed at that time and cannot be increased or diminished by a subsequent amendment of the statutes relating to such commissions.</p> <p>The representatives of executors who died before the amendment to section 2753 of the Code of Civil Procedure (formerly section 2730), made in 1916, are not entitled as a matter of right to one-half commissions based on the valuation of real estate not sold at the time of their testator’s death, where said representatives are not accounting, but only the surviving trustees and executors.</p> <p>However, where a trustee dies prior to complete administration of the trust estate his representatives, in the discretion of the court, are entitled to reasonable compensation for the services performed by the decedent. Although at the date of the death of the trustees there was no statutory power in the court to award commissions upon real property not sold and distributed, the rule does not hold where the realty was equitably converted into personalty at the date of the testator’s death.</p> <p>The commissions which the court may in its discretion allow to the estate of a deceased executor and trustee must be based upon his actual services and cannot in any event exceed one-half commissions upon the value of the property and no allowance can be justified without proof as to the services actually rendered.</p> <p>Moreover, the Appellate Division cannot exercise the said discretion in the absence of sufficient proof of the services rendered, but must send the case back for further action by the surrogate.</p> <p>A party who, on an appeal from a decree of the surrogate upon an accounting, is interested only in a particular fund should only be allowed costs payable out of that fund, the remaining costs to be paid from the funds from the entire estate.</p>

Appeal by the plaintiff, Calumet and Hecla Mining 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 29th day of August, 1918, denying its motion to overrule the demurrer of the defendant Acme Steamship Company, and sustaining said demurrer on the counter motion of the respondent.

<p>Carrier — action to recover moneys paid for carriage of merchandise — pleading — complaint stating single cause of action for money had and received — demurrer — failure of shipper to repudiate contract of carriage by reason of carrier’s neglect to perform.</p> <p>Demurrer to a complaint upon the ground that a cause of action against one of the defendants for breach of an affreightment contract was improperly united with another cause of action against a codefendant in tort for appropriating moneys paid for the affreightment, and because the two alleged causes of action did not arise out of the same transaction. Complaint examined, and held, to state but a single cause of action for money had and received and that, therefore, the demurrer upon the ground that causes of action had been improperly united should have been overruled.</p> <p>However, where the plaintiff sues for money had and received by the defendant under a contract to transport merchandise to a foreign country, which contract of carriage the plaintiff alleges the defendant has failed to perform, a demurrer to the complaint should be sustained where the defendant still has possession of the merchandise which has not been reclaimed by the plaintiff and the complaint does not show that the plaintiff has abandoned or rescinded the contract of carriage evidenced by bills of lading still held by it and which still bind the defendant to fulfill its contract of carriage.</p> <p>It seems, that the plaintiff would have a right to rescind the shipping contracts for the breach thereof by the defendant in failing to ship the goods as agreed, but such rescission must be alleged in the complaint in order to entitle the plaintiff to recover moneys paid for such carriage.</p>

. Appeal by the defendant, Thompson-Starrett Company, from so much of a judgment of the Supreme Court in favor of respondents, entered in the office of the clerk of the county of New York on the 13th day of July, 1918, upon the decision of the court after a trial at the New York Special Term as decrees the foreclosure of the mechanics’ liens filed by the respondents herein.

<p>Carrier — interstate commerce — storage charges — schedules filed by carrier controlling — construction of schedules — unauthorized storage of goods by carrier — failure to receive goods upon wharf as required by contract.</p> <p>Under the provisions of the Interstate Commerce Act, as amended, a carrier is prohibited from making any storage charge, or charge for any service connected with the transportation and delivery of freight, other than those authorized by the tariff schedule filed, and, as a carrier prepares its own schedules, it is not entitled to have them liberally construed in its favor, and the rule of fair and reasonable construction applies.</p> <p>Where the tariff schedule filed by a carrier engaged in interstate commerce and in the loading of goods for transportation to foreign countries provided for a certain period of free storage on a certain wharf, but the shipper was unable, owing to the requisitioning of ships by the government during the war, to procure a vessel to carry the goods, the carrier is not entitled to charge the shipper for removing the goods from the 1 wharf, storing them in a warehouse and for reloading them upon the wharf, . where its tariff schedule made no provision for such an emergency. The ■ carrier was only entitled to charge for storage as if the goods had remained upon the wharf which, under the bill of lading, was to be “ a reasonable charge for storage ” after the period of free storage had expired.</p> <p>Where the carrier agreed to receive the goods at a specified wharf and there to load them into ships procured by the plaintiff for shipment to a foreign country, it cannot hold the shipper for storage charges where it did not receive the goods upon said wharf but retained them in cars at other points until such time as the shipper was able to procure a vessel for transportation.</p>

Appeal by Robert Gibson and another from a final 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 August, 1918, confirming the report of a referee and dissolving the corporation.

Appeal by the defendant, Lucius Engineering Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of July, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of July, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, United Shoe Repairing Machine 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 14th day of October, 1918, directing that one Robert W. Howth be brought in as a party defendant and that the summons and complaint be amended accordingly.

Appeal by Abraham Greenberg, as special guardian, from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 20th day of June, 1918, admitting to probate the will of the above-named deceased.

<p>Will—trust — construction — remainder — contingent remainder — equitable conversion.</p> <p>A testatrix devised all of her real estate to her executors in trust with directions to sell and convey the same as soon after her death as a sale and conveyance could conveniently and advantageously be made and directed that they apply the rents and profits, until a sale, to the use of her daughters during their joint lives in equal proportions and to the use of the survivor of them; and she bequeathed her personal property to her executors in trust to divide the same into two equal parts and to apply the income of one part to the use of each daughter during life, and directed that her trustee invest and reinvest, from time to time, the personal property and the proceeds of her real estate and pay over the income thereof to her daughters, but provided that no investment could be made or called without the consent in writing of the daughter entitled to the income thereof. She further directed that upon the death of either daughter leaving issue, the trustee should assign and transfer to her issue the corpus of which such daughter had the life use; but in the event of the death of a daughter without issue the trustee was directed to continue the trust and pay over the entire income from both parts to the surviving daughter during her life. She further directed, on the death of the surviving daughter, that the trustee should transfer to her heirs the whole or the equal one-half part of the corpus the income of which had been’given to her, and in default of such heirs the trustee was directed to transfer the corpus unto such of the four sons of the testatrix living when the will was made as should survive both daughters, and to the issue of such of them as might then be dead. A codicil provided that the executors should not sell or dispose of the dwelling in which the testatrix resided during the lives of her daughters without their written consent or the consent of the survivor, and further directed that upon the decease of either or both of her daughters that their shares be given to the sons of the testatrix, naming them, share and share alike, if all be then living, but if any of them be dead at the time of the death of either or both of her daughters, then the share to which the son or sons so dying would have been entitled to, if living, was to be given to the survivor or survivors and if all the sons should die before the death of either or both of the daughters, then the share or shares to which the sons would have been entitled was, upon the decease of either or both of the daughters, to be vested in the heirs and next of kin of the testatrix as if she had died intestate. The. residence of the testatrix was sold with the consent of the surviving daughter. The testatrix left her surviving two daughters, three sons and three grandchildren, the children of a son who predeceased her, as her only heirs at law and next of kin. The three surviving sons all predeceased their two sisters and left no issue. Both daughters died without issue. In an action thereafter brought by a substituted trustee under the will for a construction of and an accounting thereunder, provisions of the will examined and</p> <p>Held, that it was the intention of the testatrix that the taking and vesting should be in the future and upon the death of the daughters and, therefore, only those of the class then Uving took the remainder which if real estate was a contingent remainder and fairly comes within the “ divide and pay over ” rule;</p> <p>That the four great grandchildren of the testatrix take the entire remainder, consisting of the one-half of the corpus set apart for the use of the survivor of the daughters, and that the estates of the daughters are not entitled to share therein, upon the theory that the bequest and devise of the remainder did not take effect until the death of the survivor of the daughters and that it was the intention of the testatrix that those only who would then be her heirs at law and next of Mn should take.</p> <p>There was no equitable conversion of the property occupied by the testatrix as a residence until an authorized sale thereof under the will.</p>

Appeal by Nathaniel Curtis, a legatee, from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 25th day of June, 1918, settling the final accounts of the executor herein in so far as said decree approves the delivery to appellant by the executor of a specific legacy and credits the executor with the same.

<p>State — construction of barge canal — claim for expense of rebuilding bridge over barge canal — jurisdiction of Court of Claims — Laws of 1916, chapter 640, construed — when notice of intention to file claim need not be filed — constitutional law—limitation of action on claim.</p> <p>Where a railroad, with the permission of the State, built a bridge over a river the title to the bed of which was in the State, which reserved the right to revoke the permit and cause the removal of the bridge at the expense of the railroad beyond the limitations of the State canal, and where upon the construction of the barge canal it became necessary to remove and rebuild said bridge, which the railroad company did at its own expense, it is entitled to recover against the State in the Court of Claims. As the Barge Canal Act provided that new bridges shall be built over the canals to take the place of existing bridges wherever rendered necessary by the new location of the canals, it became the duty of the State to construct the new bridge, or to pay the claimant therefor.</p> <p>Under chapter 640 of the Laws of 1915, extending the time for filing existing claims against the State for damages for the appropriation of property in connection with the improved canals and giving the Court of Claims jurisdiction, the claimant is not required to file a notice of intention to file a claim. The statute merely requires the filing of the claim within one year after the act took effect.</p> <p>Where the State appropriated the property of the claimant for the improvement of the barge canal within six years after the claimant completed the new bridge there was an acceptance by the State amounting to an appropriation thereof and the claim is not barred by section 6 of article 7 of the State Constitution relating to the payment of claims barred by lapse of time.</p>

Appeal by the defendants, John E. Donovan and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 29.th day of July, 1918.

Appeal by the defendant, the State of New York, from an order and determination of the Court of Claims, entered in the office of the clerk of said court on the 17th day of September, 1918.

<p>State — appropriation of lands for canal purposes — judgment of Court of Claims affirmed — court may view premises.</p> <p>Appeal from a judgment of the Court of Claims making an award on account of the appropriation of lands for barge canal purposes. The sole issue is as to the amount awarded by the court. Evidence examined, and held, that the determination of the court should be affirmed.</p> <p>The judges of the Court of Claims may view premises for the purpose of fixing values.</p>

Appeal by the defendants, Columbia Shirt Company, Inc., and another, from an award and order of the State Industrial Commission, entered in the Albany office of the Commission on the 5th day of June, 1918.

Appeal by the defendants, The E. W. Bliss Company and another, from several awards of the State Industrial Commission, made on the 23d day of January, 1918, the 6th day of March, 1918, the 15th day of June, 1917, and the 8th day of July, 1918, as per notice of award dated July 12, 1918.

Appeal by the defendants, Andonino Zito. and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of February, 1917, upon the decision of the court after a trial at the Monroe Equity Term.

<p>Separate appeals by the plaintiff, Addison M. Sherman, and by the defendants, Edward C. Atwater and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Erie on the 21st day of February, 1918, upon the decision of the court after a trial before the court without a jury.</p> <p>The judgment dismissed the complaint and also the counterclaim of the defendants, appellants, after a trial at the Erie Equity Term.</p>

Appeal by the defendant, New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 17th day of May, 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 defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Robert G. Latham, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of May, 1918, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Leo Levy, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1918, as denies in part his motion for judgment on the pleadings consisting of a complaint, answer and reply.

Appeal by the defendant, North British & Mercantile Insurance Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1918, as denies in part its motion for judgment on the pleadings consisting of a complaint, answer and reply.

<p>Appeal by the defendant, Charles A. Levy, from a judgment of the Court of General Sessions of the Peace in and for the County of New York affirming a judgment of a City Magistrate’s Court of the City of New York rendered on the 22d day of June, 1917, convicting defendant of disorderly conduct tending to a breach of the peace.</p> <p>The judgment of affirmance was rendered on the 13th day of August, 1917.</p> <p>An appeal is also taken from a further judgment of affirmance rendered on the 16th day of April, 1918, on a reargument of the appeal.</p>

Appeal by Godfrey Goldmark, as administrator c. t. a., and by Ada Helen, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 30th day of September, 1918, denying the application of the administrator to strike out objections filed to his accounts and to vacate an order referring the issues arising on said objections and on an answer interposed by the respondent.

<p>Appeal by the plaintiff, Emily Irving Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 18th day of April, 1918, upon a decision of the court after a trial at the Kings County Special Term.</p> <p>The decision dismissed the complaint, without costs, upon the ground that it did not state facts sufficient to constitute a cause of action, “ without prejudice to the right of the plaintiff to commence another action for any relief she may be entitled to other than the relief demanded in the complaint herein.”</p> <p>The action is brought against the administrator and the heirs and next of kin of Sarah Furst, deceased, to enforce a contract made by her prior to her death. The complaint alleges that Sarah Furst died' intestate April 25, 1916; that letters of administration on her estate were issued to the defendant Michael Furst. Her nearest relatives are two brothers, a sister and children of a deceased brother. For seventeen years prior to the' making of the agreement upon which the action is based, Sarah Furst and the plaintiff had lived together and had been associated as partners in conducting and managing a boarding and lodging house; during said period all funds and profits of said business had been deposited in the name of said Sarah Furst, and title to all property purchased with such funds and profits had been taken in her name for the partnership. At the time of the death of Sarah Furst the legal title to certain real and personal property and moneys deposited in banks was held in the name of Sarah Furst.</p> <p>The complaint alleges that on or about the 1st day of July, 1913, plaintiff and said Sarah Furst, deceased, entered into a contract in writing wherein and whereby said Sarah Furst, deceased, promised that if she should predecease said plaintiff, all personal property, money in bank and real estate owned by her at that time should become the property of said plaintiff to use for plaintiff’s maintenance and comfort, and that upon said plaintiff’s death what should remain should be divided equally between the Smith and Furst families, and on her part and as consideration for said promise the said plaintiff promised that if she should predecease said Sarah Furst, her property should in like manner become the property of said Sarah Furst, and upon said Sarah Furst’s death be divided in like manner between the Smith and Furst families. A copy of the contract is annexed to the complaint, as follows :■</p> <p>“ New York City, July 1st, 1913.</p> <p>“ In the event of the death of either of us, all personal property, money in bank, and real estate owned by either of us at that time, shall become the property of the remaining one to use for her maintenance and comfort, and she alone shall administer the estate. At her death whatever remains shall be divided equally between the Furst and Smith families.</p> <p>“ EMILY IRVING SMITH “ SARAH FURST.”</p> <p>And the complaint goes on to allege that further consideration for the execution of the contract lay in the fact th&t said plaintiff and said Sarah Furst had, during a period of seventeen years prior thereto, lived together, and had been associated together as partners in the conduct and management of a boarding and lodging house business in the borough of Brooklyn, city and State of New York, and that during said period all funds and profits of said business had been deposited in the name of said Sarah Furst, and title to all property purchased with such funds and profits taken in the name of said Sarah Furst for said partnership.</p> <p>The defendants Charles S. Furst, one of the brothers of deceased, Lilly S. Furst, his wife, and Cynthia G. and Lewis M. Smith, the next of kin of the plaintiff, answered admitting the contract and the partnership as alleged in the complaint, praying for judgment that the property of which Sarah Furst died seized be sold according to law; that all parties account for all moneys received, and that defendants receive their proportionate and just share of the estate. The other defendants answered denying plaintiff’s allegations concerning the contract and asking that the complaint be dismissed.</p>

Appeal by the Queensboro Investing Company and another, claimants for damages for lots in the bed of a newly-opened street ■ in the Elmhurst section of Queens county, 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 Queens on the 7th day of March, 1917, denying their motion for the confirmation of the report of the awards for damage and returning the same with instructions to award nominal…

<p>Towns — town of Huntington — suit in equity to recover value of erections made upon lands leased from former trustees of town — suit properly brought against town — constitutional law — statute transferring duties of trustees to town officials — authority of officials to deal with private property consisting of rights to erections upon leased property — liability under lease not a town charge — practice — when separate order on overruling demurrer to complaint superfluous.</p> <p>In a suit on a lease of town lands under water, granted in the year 1866 by the “ trustees of the Freeholders and Commonalty of the town of Huntington ” it was alleged that after the death of the lessee the leasehold interest passed to the plaintiff who, having been ordered to vacate the premises, seeks to enforce rights of renewal and to have judicially assessed the appraised valuation of buildings and other erections upon the property. By chapter 492 of the Laws of 1872 said trustees of the town of Huntington were abolished and all their rights, privileges, duties, etc., vested in the town officials.</p> <p>Held, that under chapter 492 of the Laws of 1872 and under the provisions of the Town Law the suit was properly brought against the town.</p> <p>Chapter 492 of the Laws of 1872 abolishing the former trustees of the town of Huntington, etc., and transferring their duties to the town officials, being -to simplify the election of such officials and to prevent duplication of public duties, was constitutional.</p> <p>Since the rights to the erections and the liabilities under said lease constituted private property of the town which is not held or managed in its governmental capacity, it requires no legislative authority to enable its officials to deal therewith as the town interests may require.</p> <p>The liability under said lease is not a town charge to be audited under the provisions of the Town Law relating to liabilities against a town in its public capacity.</p> <p>The right to sue in equity to have valued erections added by a tenant under a covenant for a conditional renewal is well settled.</p> <p>Where the sole issue in such a suit is the value and recovery of erections added to the leasehold, an objection that the plaintiff’s present interest is not entire since a strip of land had been severed and assigned to a lighting company, cannot avail as against the main basis of the plaintiff’s equities.</p> <p>A separate order entered on overruling a demurrer to a complaint should be regarded as superfluous where instead of bringing up the point on motion there had been a trial on an issue of law and an interlocutory judgment entered.</p>

Appeal by the defendant, Henry Alfani, from a judgment of the Court of Special Sessions of the City of New York, Part II, rendered against him on the 3d day of May, 1918, convicting him of practicing or appearing as an attorney at law, without being admitted or registered, in violation of section 270 of the Penal Law. Sentence, however, was suspended.

Appeal by the plaintiff, Percival Wilds, as trustee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of May, 1918, upon the verdict of a jury rendered by direction of the court, and also an appeal is taken from the order directing the verdict which was entered in said clerk’s office on the 6th day of May, 1918.

Appeal by the defendants, Charles L. Craig, as comptroller, and by Peter L. Kenney and others, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 13th day of December, 1918, denying their motion to vacate and set aside an order appointing a referee to take the depositions of Peter L. Kenney and others herein.

<p>Real property — trust — express trust — power in trust — when power in trust to convey to children of life beneficiary does not confer upon or vest in unborn children any interest during life of grantor of trust •—■ action to have deed and declaration of trust declared void —• necessary parties defendant.</p> <p>An owner of land by a deed thereof and a declaration of trust executed by the grantee, effected valid express trusts for the benefit of her sister and a grandchild and provided that at the death of the grantor the estate should be divided into two equal parts in ease her sister and her grandchild should survive her and that the income from one part should be paid to the sister during her life and the income from the other part to her grandchild during her life. No remainder was limited on the share of which the sister was to have the use during her life but it was provided that upon the death of the grandchild the trustee should convey and distribute the real estate to said grandchild’s lawful issue, thereby creating a power in trust.</p> <p>Held, that said power in trust to convey to the children of said grandchild upon her death if -she should leave any children surviving did not confer upon or invest in these unborn and unascertained persons any interest in the estate during the life of the grantor of the trust, and, therefore, in an action by said grantor to have her deed and declaration of trust declared null and void, the failure to join the children of her grandchild or some one representing them was not a fatal defect of parties and the judgment therein is binding upon said children when they afterwards came into being.</p>

Appeal by the defendant, W. Wells & Co., 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 22d day of April, 1918, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, J. Terry West and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of December, 1917, upon the verdict of a jury in defendant’s favor upon his counterclaim, 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 by the landlord, East 46th Street Realty Corporation, 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 the 15th day of May, 1918, affirming a final order in favor of the tenant in a summary proceeding brought in the Municipal Court of the City of New York.

<p>Master and servant — action to recover wages under contract of employment and damages for wrongful discharge — defense — counterclaim — neglect of duties, immoral conduct, incompetence •—• evidence.</p> <p>In an action to recover money actually earned under a written contract of employment and damages for wrongful discharge, the defendant alleged as a defense and by way of counterclaim that it rightfully discharged the plaintiff for neglect of his duties and for immoral conduct in the course of his employment and for incompetence and negligence. Evidence examined, and</p> <p>Held, sufficient to establish that the defendant was justified in discharging the plaintiff upon the ground of incompetence, and also that defendant . was actually damaged;</p> <p>That, as the case was submitted, the jury was warranted in finding that the plaintiff even if properly discharged was entitled to compensation earned prior thereto and in deducting from said amount such damages as defendant proved under its counterclaim.</p> <p>Laughlin, J., dissented.</p>

<p>Appeal by the plaintiff, Friedman Marble and Slate Works, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of June, 1917, dismissing the complaint at the opening upon the decision of the court.</p>

Appeal by the plaintiff, Queens County Water 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 1st day of February, 1918, upon the verdict of a jury rendered by direction of the court.

<p>Pleading — action to recover upon policy of burglary insurance — general denial — separate and distinct defenses — right of plaintiff to bill of particulars as to said defenses — defendant estopped from denying materiality of defenses.</p> <p>Where in an action to recover upon a policy of burglary insurance, the defendant after denying allegations of plaintiff’s performance set up three “ separate and distinct ” defenses, the plaintiff is entitled, in order to prevent surprise and limit the defendant’s proof upon the trial, to have a bill of particulars of said defenses.</p> <p>Although it may have been unnecessary for the defendant to add allegations by way of defense in addition to its denials, it is estopped by so doing from denying their materiality on a motion by the plaintiff for a bill of particulars.</p>

Appeal by the defendants, Samuel W. Scott 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 8th day of January, 1919, granting an injunction pendente lite.

<p>Appeal by Max Sheinbaum from an order and decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 20th day of November, 1918, vacating and setting aside a general release given by the administratrix to appellant.</p>

Appeal in each case by the plaintiff, Roger Howard and Charles Howard, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of October, 1918, granting defendants’ motions to vacate and set aside the judgments in favor of the plaintiffs which had been entered in the above actions.

Appeal by the defendant, Karl Keller, from a judgment of the County Court of Kings county, rendered against him on the 14th day of June, 1918, convicting him of the crime of grand larceny in the first degree.

<p>Appeal by the plaintiff, Merry Realty Company, Inc., from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Kings on the 1st day of April, 1918, upon the decision of the court after a trial at the Kings County Special Term.</p> <p>Defendant Shamokin & Hollis Real Estate Company, Inc., was the owner of thirty-two lots of land at Hollis, Queens county, N. Y. The plaintiff was the owner of premises No. 1057 Bergen street in the borough of Brooklyn, carried in the name of a dummy, Martin. By contract dated the 2d day of August, 1916, between Martin and the defendant, they agreed to exchange these two pieces of property. For the purpose of the exchange the Hollis property was valued at $25,000 and was to be conveyed free and clear of incumbrances, and the Bergen street property was valued at $65,000 and was to be taken subject to a first mortgage of $34,000 and a second mortgage of $6,000. The defendant, hereinafter called the Shamokin Company, was owned by residents of Shamokin, Penn. The plaintiff was owned equally by one Pramuk, a resident of Shamokin, and Green, a resident of Brooklyn, and Pramuk and Green were partners in a real estate business carried on in the borough of Brooklyn. Pramuk and Green represented to the defendant that Green was a disinterested broker who would aid the defendant in securing an exchange of its non-productive property in Hollis for income-producing property in the borough of Brooklyn, and the negotiations leading to the exchange were had between the officers of the defendant company and Green, who acted as broker for the defendant and was subsequently paid the sum of $625 commissions. Green represented that the Bergen street property was owned by Martin; that Martin was a-wealthy contractor; that the property was subject to a first mortgage, held by the Lawyers Title and Trust Company, and to a second mortgage of $10,000, which had been reduced to $6,000, and that the Bergen street property was worth $65,000. The defendant, believing these representations, and induced to believe that Green was a disinterested expert who was advising it in its own interest, entered into the contract of exchange. As a matter of fact, the property was not owned by Martin, a contractor and builder, but was held by Martin, who was an osteopathic physician, as a dummy for the plaintiff. Green was not a disinterested expert, but was, through ownership in the stock of the plaintiff company, practically a half owner of the Bergen street property; the $34,000 mortgage was not a first mortgage held by the Lawyers Title and Trust Company, but, by the device of a participation agreement, was in effect a first mortgage for $29,000 and a second mortgage for $5,000; there was no $10,000 mortgage that had been- reduced to $6,000, but pending the negotiations, and for the purpose of the contract, a mortgage for $6,000 was given without consideration by Martin to the plaintiff company.</p> <p>The contract of exchange was carried out in accordance with its terms. The property was conveyed subject to the mortgage for $34,000 and to the mortgage held by the plaintiff for $6,000; and the interest not having been paid according to the terms of the mortgage, the plaintiff began foreclosure proceedings. The defendant set up the facts above recited, by way of defense and counterclaim, and asked that the mortgage be annulled and that damages be awarded for the fraud, and during the progress of the trial it asked to amend its answer by demanding a rescission of the contract. After trial the court gave judgment annulling the mortgage and awarding to the defendant the sum of $6,625 damages besides interest and costs, to be paid by the plaintiff. From the judgment entered thereon the plaintiff appeals.</p>

<p>Appeal by the plaintiff, Elizabeth H. Walker, 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 12th day of March, 1918, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Negligence — action for personal injuries — evidence — medical testimony — objection to question as improper in form and ' calling for incompetent testimony — erroneous admission of evidence to the effect that plaintiff’s injury was caused by accident and statement by court that it would so charge.</p> <p>Where, in an action for personal injuries, the question at issue was whether the condition from which the plaintiff was suffering at the time of the trial resulted from the accident, or was the result of some organic trouble not caused thereby, it was error to allow the attending physician upon re-examination to answer the following question, “ Did she have any oedema of the legs that came from any other cause than the accident?” as it permitted the witness to usurp the functions, of the jury.</p> <p>An objection to such question that it was improper in form and called for incompetent testimony was sufficiently specific.</p> <p>It was reversible error for the court to permit a witness to testify that the plaintiff’s cedema was caused by the accident and to subsequently declare that plaintiff’s proof established this fact, so that the court would charge it as a matter of law, and such error was not cured by a subsequent charge.</p> <p>A party to an action is entitled to a determination by the jury on the question of the credibility of the witnesses uninfluenced by the opinion of the court.</p>

<p>Tax — valuation of estate near city of New Rochelle — evidence — admissibility of original papers in prior transfer tax proceeding — evidence as to cost of improvements.</p> <p>Upon a review of the proceedings of the commissioners of assessment and taxation of the city of New Rochelle fixing the valuation of an estate in the outskirts of said city, it was error for the referee to exclude original papers in a prior transfer tax proceeding fixing the value of said estate, especially where the expert employed in such proceeding by the present relators upon his examination before the referee testified to a different valuation than that stated in said papers.</p> <p>Under the circumstances evidence as to the cost of improvements upon which the owner had recently spent not less than $200,000 should have been received.</p> <p>As a general rule improvements add to the value at least their structural cost.</p>

Appeal by the defendants, E. W. Bliss Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 20th day of May, 1918.

Appeal by the defendants, John D. Chism 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 Albany on the 31st day of May, 1918, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.

<p>Intoxicating liquors — summary power of court to declare election upon resubmission of local option question void.</p> <p>Where it is claimed that an election resulting upon a resubmission of local option questions was void because the polls at two of the three election districts were closed one hour prior to the time fixed by statute because of a misconception of the “ Daylight Saving Law,” the court has no power under the statute to determine that question in a summary manner by declaring the result of the election void, upon a motion by a hotel keeper in said town.</p> <p>John M. Kellogg, P. J., dissented, with memorandum.</p>

<p>Appeal by the defendants, Edgar Irving and another, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of said county on the 21st day of June, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of July, 1918, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Louise White Thornton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Tioga on the 3d day of August, 1918, upon the decision of the court dismissing the complaint after a trial at the Tioga Special Term.</p>

<p>Appeal by the plaintiff, Charlotte A. Erwin, individually and as executrix, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 8th day of September, 1917, upon the decision of the court after a trial before the court without a jury.</p> <p>The judgment decreed that by the terms of the will of Levi E. Waterbury, deceased, the plaintiff and the. defendant Gertie M. Erwin took only a contingent title to the residuary estate of said decedent and that an accounting be had by the plaintiff for all moneys and other property which came into her hands belonging to the estate of said decedent, and directing two bills of costs as judgments against the estate of said decedent.</p>

<p>Appeal by Lavinia Clarkson, an alleged incompetent person, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 18th day of November, 1918, directing that a commission issue to inquire into her competency.</p>

Appeal by the plaintiffs, George Lagois and another, as administrators, from a judgment of the- Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 3d day of April, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of April, 1918, denying plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, New York Railways Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of June, 1918, upon the verdict of a jury for $5,000, 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.

Appeal by the defendant, The New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of June, 1918, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 29th day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Weber-McLoughlin Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 11th day of May, 1918, upon the verdict of a jury for 86,000, and also from an order entered in said clerk’s office on or about the 6th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 10th day of May, 1918, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 11th day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Ulster and Delaware Railroad Company, from a judgment of the County Court of Ulster county, entered in the office of the clerk of said county on the 9th day of February, 1918, affirming a judgment of the City Court of the city of Kingston entered in the office of the clerk of said City Court on the 21st day of July, 1917. An appeal is also taken from the order and judgment of the City Court.

Appeal by the plaintiff, The People of the State of New York, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 1st day of August, 1918, overruling plaintiff’s demurrer to certain defenses set up in the answer, dismissing the amended complaint on the merits and vacating the injunction herein.

Appeal by the defendants, Allen Curtis 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 11th day of April, 1918, upon a verdict, and also from an order entered on the 5th day of April, 1918, denying a motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emanuel Metzger, as receiver, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 2d day of April, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the plaintiff, Joseph Gordon, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of February, 1918, upon the verdict of a jury rendered after trial at the New York Trial Term dismissing the plaintiff’s complaint.</p>

Appeal by the plaintiff, James D. Lecky, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Ulster on the 8th day of April, 1918, denying his motion to set aside the report of a referee herein and to vacate the judgment entered thereon.

Appeal by the defendants, Communipaw Steel Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 17th day of June, 1918.

Appeal by the defendant, The Delaware and Hudson Company, from an award of the State Industrial Commission, dated the 5th day of October, 1918, granting compensation for the loss of a left arm.

Appeal in each case by the plaintiff, Margaret A. O’Brien and Lena Tonskey, from parts of orders of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 15th day of October, 1918, granting the motions of the Kingston Consolidated Railroad Company for bills of particulars.

<p>Appeal by Artemas Ward, judgment creditor, from an order of the County Court of Richmond county, entered in the office of the clerk of said county on the 26th day of October, 1918, directing the distribution of funds in the receiver’s hands among six judgment creditors of one Thomas Baker.</p> <p>. These creditors had served on the judgment debtor orders for his examination on the following dates: Smith Premier Typewriter Company, February 13, 1909; Artemas Ward; June 21, 1909; Florence M. Hagely, October 25, 1909; Oliver Typewriter Company, November 12, 1909; Monarch Typewriter Company, January 4/16, 1911; Saunders & Burbank, January 14, 1913.</p> <p>On April 5, 1910, upon motion of the Oliver Typewriter Company, a receiver was • appointed, but on January 15, 1916, Mr. Frederick W. Clifford was substituted. This receivership was extended to the judgment of Florence M. Hagely on April 25, 1910, and to the judgment of Artemas Ward on June 15, 1910. Mr. Clifford brought an action against the city of New York to reach moneys to which the judgment debtor was entitled for services, which the receiver ultimately collected on July 10, 1918. •</p> <p>These earnings were all within the year 1910, in these months: April, $133.30; May, $102; June, $81.60; August $112.50; October, $95; November, $55; December, $108.20; Total, $687.60.</p> <p>On April 26, 1913, upon motion of the Oliver Typewriter Company, the receivership was again extended “ to include all the supplementary proceedings hereinbefore named and now pending.” The receiver reported that “ This motion was apparently made on notice to all of the judgment creditors having orders in supplementary proceedings then pending.” The order of the learned County Court on the receiver’s final accounting, made a distinction between the debtor’s earnings prior to June 15, 1910, and subsequent to that date, so that the costs and expenses of the receivership were apportioned by charging forty per cent thereof against the judgment creditors entitled to earnings before that date, and sixty per cent against the judgment creditors entitled to receive such earnings after that date. Only the creditor Ward has appealed.</p>

Appeal by the defendant, Otis Elevator Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9th day of July, 1918, upon the decision of the court after a trial before the court, a jury having been waived. The action is to recover from the defendant the loss and damage sustained by the plaintiffs by reason of the fall of an elevator in the store of the plaintiff Wanamaker in New York city.

<p>Appeal by the defendant, Otis Elevator Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9th day of July, 1918, upon the decision of the court after a trial before the court, a jury having been waived.</p>

<p>Appeal by Jesse S. Phillips and another, as receivers, 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 their application to set off against the indebtedness of the Union Bank of Brooklyn to Peoples Surety Company a dividend of fifty dollars per share upon 150 shares of the stock of the Peoples Surety Company, held by said Union Bank of Brooklyn.</p>

<p>Separate appeals by Gertrude L. Hoyt and others, and by Louis Perlstein and another, and by Kamnitz Podolsky and others, c aimants to one or more of damage parcels Nos. 1 to 7, inclusive, herein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of May, 1916, overruling their objections to the report of the commissioners of estimate and assessment herein and con&ming the report.</p>

Appeal by the defendant, Edward C. 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 22d day of April, 1918, resettling a prior order, granting plaintiffs’ motion to make Clinton H. Crane, as president, and Edwards Whitaker and others, as statutory trustees of defendant Doe Run Lead Company, parties defendant, and granting to plaintiffs leave to issue and to serve a…

Appeal by the plaintiff, Alfred J. Higgins, from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 15th day of May, 1918, upon the verdict of a jury in plaintiff’s favor for the sum of six cents rendered by direction of the court, and also from an order entered in said clerk’s office on the 13th day of May, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Diamond State Fibre Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 6th day of April, 1918, setting aside the verdict of a jury in favor of the defendant and granting a new trial.

Appeal by the defendant, John H. Windels, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of September, 1918, denying his motion for judgment on the pleadings, consisting of a complaint, answer, reply and a demurrer to the reply.

Appeal by the defendant, Mutual Film Corporation, 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 7th day of September, 1916, upon the decision of the court after a trial at the New York Special Term. The interlocutory judgment granted an injunction and appointed a referee.

Appeal by the defendant, Gabriel W. Watterson, from an order of the County Court of Bronx county, entered in the office of the clerk of said county on the 20th day of September, 1918, overruling Ms demurrer to the complaint on the ground of msufficiency and granting plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, Patrick F. Shea, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of July, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of August, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant,. Charles M. Warner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of August, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of September, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Carrier—shipment of trunk by express — carrier’s receipt limiting time of action for loss of goods — acceptance of receipt by shipper’s agent and retention by shipper without protest — when shipper bound by limitation of action.</p> <p>Where the plaintiff ordered her maid to ship a trunk by the defendant’s express company and the maid accepted a receipt from the defendant which limited the right of the shipper to recover for lost goods to an action to be brought within one year from the date of loss, which receipt was afterwards given to the plaintiff by the maid and which was retained by her without protest, she was bound by the one-year limitation set by the contract. Hence, she cannot maintain an action for loss of the contents after said time had expired.</p> <p>The maid was the plaintiff’s agent to make delivery of the trunk and the receipt accepted by the maid and delivered to the plaintiff constituted the contract of shipment whether read by the plaintiff or not.</p> <p>In any event the contract was ratified by the retention of the receipt by the plaintiff without protest.</p>

Appeal by the defendant, Vandam Warehouse 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 21st day of January, 1919, denying defendant’s motion for an order interpleading the Standard Forwarding Company, Inc., and further denying its motion to stay the plaintiff from disposing of any property taken under replevin process until the delivery to the defendant of a…

Appeal by William H. Young from part of a decree of the Surrogate’s Court of the county of New. York, entered in the office of said Surrogate’s Court on the 22d day of December, 1917. Appeal by Gertrude A. Forman and others from other parts of the same decree.

<p>Railroads — negligence — death of pedestrian struck by street car — contributory negligence.</p> <p>Action to recover for the death of a person who was struck by the defendant’s street ear. It was contended by the defendant that the decedent was killed by an automobile rather than by its street car. Evidence examined, and held, that the jury were justified in finding that the deceased was killed by the defendant’s car and not by the automobile.</p> <p>However, where it appears that the decedent, at the time he met his death, was walking toward the ear in a diagonal direction and was immediately struck as he stepped in front of it so that the car must have been very close to him, there was contributory negligence as a matter of law which bars a recovery.</p>

<p>Constitutional law — Parole Commission Law —statute not ex post facto —• reducing punishment for crime — power of court to impose fine.</p> <p>Unless a law inflicts a greater punishment than the law annexed to a crime when committed it is not ex post facto.</p> <p>Where the law, at the time the relator committed an assault, made the maximum sentence five years and the minimum three and one-half years, including all commutation to which he would have been entitled, he cannot complain, when he was subsequently sentenced, after a suspended sentence, under the Parole Commission Law, that the latter was ex post facto as to him, for the maximum sentence under the latter act is three years, and there is no limit to the minimum which rests in the discretion of the commissioners.</p> <p>The Parole Commission Law does not deprive the judge of the ab lity to pronounce a sentence of fine instead of imprisonment.</p>

. Appeal by the defendant, Catharine Meighan, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 31st day of October, 1918, granting petitioner’s motion to discontinue this proceeding as to one parcel known as No. 3000 Third avenue in the city of New York.

Appeal by the defendants, Cathryn Petry and others, from a judgment or decree of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 11th day of April, 1918, upon the decision of the court after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 24th day of June, 1918, denying appellants’ motion for a new trial for the purpose of offering additional evidence.

Appeal by the defendant, Hallenbeck-Hungerford Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of March, 1918, as amended under date of March 25, 1918. The judgment was entered upon the verdict of a jury. An appeal is also taken from an order entered in said clerk’s office on the 26th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Julia Stewart, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 3d day of July, 1918, affirming a judgment of the Municipal Court of the County of New York, Borough of Manhattan, Eighth District, dismissing the complaint in an action brought against the sheriff for an escape.

Appeal by the plaintiff, Manufacturers and Dealers Motor Underwriters, 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 9th day of January, 1919, requiring it to furnish a further bill of particulars.

Appeal by the defendants, C. Sedgewick Levy and others, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of June, 1918, reversing a judgment of the City Court of the City of New York and directing a judgment in plaintiff’s favor for the sum of $1,000.

Appeal in each case by Francis D. Bailey and others 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 21st day of June, 1918, upon the verdicts of a jury, and also from orders entered in said clerk’s office on the 24th day of June, 1918, denying defendants’ motions for a new trial in each case. The verdict in the first case was for $250 and in the second case for $1,000.

<p>Sale — Statute of Frauds — memorandum — bought and sold notes delivered by broker — action for breach of contract to deliver goods — ratification of unauthorized act of seller’s agent— estoppel — erroneous nonsuit.</p> <p>Where a broker, as a middleman, negotiating a sale of goods for a buyer and seller, signs and delivers' to both parties bought and sold notes which are retained by them there is a sufficient memorandum to take the ease out of the Statute of Frauds,, which rule is still in force.</p> <p>It seems, that the rule does not hold where the sale is negotiated by an employee of one of the parties only.</p> <p>Evidence in an action to recover for a breach of contract to sell and deliver goods examined and held, that it was error to dismiss the complaint at the close of the plaintiff’s case as it might be inferred that the person who negotiated the sale was a middleman or broker and that the plaintiff was entitled to the benefit of this inference.</p> <p>Where the middleman or broker knew that contracts of sale had to be approved by the seller’s main office in another State, the contract of sale cannot be established by the testimony of the broker that a salesman.in the defendant’s employ in this State told him that the contract of sale was accepted, for the authority of the salesman cannot be established by his statement to the broker.</p> <p>However, where the defendant’s general manager in this State knew that the broker had sent sold notes to his office, but made no effort to return them and they were never returned, and did not stand upon" the local salesman’s lack of authority to make the sale, but merely insisted, against the buyer’s protest, that the seller had a right to change the terms at any time during the contract and where a representative from the home office of the seller made no claim that the salesman who accepted the contract lacked authority and the sales notes were in fact retained so that the buyer could have been held upon the contract, the seller was not in a position to repudiate the sale, there being either a ratification or estoppel, , conceding to the plaintiff the most favorable inferences from the proof. Hence it was error to dispose of the issue as a matter of law.</p> <p>Page, J., dissented.</p>

Appeal by the defendant, Liberte Picciano, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 22d day of June, 1918, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 28th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 28th day of March, 1918, directed to Oscar S. Straus and others, constituting the Public Service Commission for the First District, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in regard to the rates and charges of the relator.

<p>Appeal by the plaintiff, Dominick G. Riley, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on or about the 17th day of December, 1917, reversing a judgment of the Municipal Court, Borough of Manhattan, Sixth District, in plaintiff’s favor for the sum of $504, and granting a new trial.</p>

<p>Appeal by the defendant, Alfred De Vide, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1918, directing the defendant to pay plaintiff $50 per week as alimony and $150 as counsel fee.</p>

Appeal by the defendant, Gainsborough 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 16th day of July, 1918, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 25th day of July, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John E. Teiper, from a judgment of the Supreme Court, Erie county, rendered against him on the 22d day of December, 1916, convicting him of the crime of murder in the second degree, and also from an order of said court made on the 5th day of January, 1917, denying defendant’s motion for a new trial made upon the minutes.

<p>Workmen’s Compensation Law — claim for assault — when assaults are accidents arising out of employment.</p> <p>Claim by superintendent of an apartment house based upon the fact that an assault was committed upon him by a tenant of the building. Evidence examined, and held, that the determination of the Commission that the claimant was not engaged in his master’s business when the assault was committed and hence was not entitled to an award should be affirmed.</p> <p>Assaults are accidents arising out of the employment within the meaning of the Workmen’s Compensation Law only when the employee is engaged in his master’s business.</p>

<p>Appeal by the defendant, George W. Graver, from, an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Rensselaer on the 16th day of November, 1918, directing payment of alimony and counsel fees.</p>

<p>Mortgages — trust mortgage securing bonds issued to build steamboat — complaint in action to recover payment from sinking fund to defray portion of expense of boat.</p> <p>A trust mortgage executed by a navigation company provided in effect that when said company had constructed a new vessel and had subjected it to the lien of the mortgage, free from all other liens or incumbrances, it should be entitled to call upon the trust company for not more than eighty per cent of the cost, if so much bonds and interest money had been deposited in the sinking fund, and if not, it was to be paid to the company so far as paid in, and the balance to be delivered when deposited.</p> <p>A complaint in an action by the navigation company, commenced at a time when there was a sinking fund of $100,000, which alleges that the plaintiff had paid for the construction of a boat which it had placed under the mortgage; that the cost of said boat is not in excess of the fair value thereof, and that it is free from all liens and incumbrances except the mortgage in question, and which seeks to recover from the trust company eighty per cent of the cost of the boat to be paid from the bonds and interest moneys in the sinking fund, states a cause of action, and a judgment sustaining a demurrer interposed by bondholders should be reversed.</p> <p>John M. Kellogg, P. J., and H. T. Kellogg, J., dissented.</p>

<p>Appeal by the defendants, The Kildare Club and others, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of St. Lawrence on the 29th day of October, 1918, denying defendants’ motion for an increase in the security given upon the injunction issued in this action.</p>

Appeal by the defendant, The New York Central Railroad Company, from a decision and award of the State Industrial Commission, rendered on the 4th day of November, 1918, granting compensation herein.

Appeal by the plaintiff, Henrietta G. Brush, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 24th day of November, 1917, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Mitchell Rosenzweig and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1917, upon the decision of the court after a trial at the Westchester Special Term.

<p>Appeal by the defendant, Bradley Contracting Company, from an order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of April, 1917, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, entered in the office of the clerk of said court on the 6th day of October, 1916.</p> <p>An appeal is also taken from the judgment of the Municipal Court entered on the 16th day of April, 1917, pursuant to the order of affirmance.</p>

Appeal by John C. Wait from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1918, granting a petition by a client in summary proceedings to compel the appellant, his attorney, to pay over to said client certain moneys which he had collected.

Appeal by the defendant, Mike Novik, from so much of an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 26th day of April, 1918, as affirms as modified a judgment of a Court of Special Sessions convicting him of the crime of petit larceny.

Appeal by the defendants, Junius Coal and Wood Company, Inc., 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 1st day of February, 1919, appointing a receiver of the defendant corporation.

<p>Practice — order of arrest — amendment.</p>

<p>Practice — withdrawal of complaint.</p>

<p>Appeal by plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of Kings county July 19, 1918, for seventy dollars and ninety-five cents costs, and dismissing the complaint at the close of plaintiff’s ease.</p>

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 16th day of August, 1917, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office September 1, 1917, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the clerk’s office of Ulster county on the 14th day of December, 1916, and also from an order entered on the 9th day of January, 1917, denying the plaintiff’s motion for a new trial upon the minutes.

<p>Appeal from a judgment of the Supreme Court, entered in the Otsego county clerk’s office June 11, 1918.</p>

Appeal by the plaintiff, John Tucholka, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Erie county on the 8th day of February, 1917, dismissing plaintiff’s complaint and cause of action and for sixty-eight dollars and seventy-seven cents costs.

Motion by the petitioner that this court cause an investigation to be made as to his character and fitness for admission to the bar and, upon ascertaining such, to admit petitioner to practice as an attorney and counselor at law.

Appeal by the defendant, Lefstein & Rosenfeld Company, from a judgment of the Supreme Court, entered in the office of the clerk of the county, of Kings on the 27th day of March, 1918, in favor of the plaintiff, and also from an order entered in said clerk’s office on the 3d day of April,- 1918, denying its motion for a new trial.

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

Reargument of an appeal by the defendant from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 10th day of January, 1918, in favor of the plaintiff, and from an order entered in said office on the 2d day of February, 1918, denying a motion for a new trial. (See 184 App. Div. 309.)