Volume 187 — New York Appellate Division Reports

<p>Pleading — equity — suit for injunction—complaint stating cause of action — when denial of temporary injunction not res ad judicata — demurrer to defenses sustained.</p> <p>Suit in equity to obtain an injunction restraining the defendant, a municipal contractor in the city of "New York engaged in changing street grades, from injuring the plaintiffs’ pneumatic tubes laid under said streets and used for the purpose of conveying United States mails under a contract with the Federal government. It is alleged, among other things, that the defendant intends to encase said tubes in solid masonry so as to make them inaccessible for repairs which may result in the interruption of the Federal mail service, etc.; and it is further alleged that the contract of the defendant with the city requires it to readjust and rebuild .said pneumatic tubes so as to leave them in as good condition as they existed before the defendant’s operations were begun, but that the defendant has refused upon demand to comply with the requirements of the contract. Complaint analyzed, and held, to state a cause of action.</p> <p>Said complaint should not be held to be insufficient upon the ground that a prior denial of a motion for a temporary injunction made the matter res| adjudícala and especially so where the denial was in part based upon purely discretionary grounds.</p> <p>A demurrer to a separate defense setting forth the proceedings' had on the application for a temporary injunction and the opinion of the justice denying the same should be sustained, for the exercise of judicial discretion in refusing temporary relief constitutes no bar to the action.</p> <p>Moreover, a demurrer to a second defense which is purely argumentative and merely states conclusions and not facts should be sustained.</p>

Appeal by the defendant, International Shipbuilding and Marine Engineering Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Rockland on the 28th day of May, 1918, upon the decision of the court after a trial at the Rockland Special Term.

<p>Constitutional law — chapter 618 of the Laws of 1918 readjusting taxation among school districts — power of Legislature to readjust burden of taxation — statute embracing but one subject and that expressed in title — presumption "in favor of constitutionality — injunction pendente lite.</p> <p>Chapter 518 of the Laws of 1918, enacted for the purpose of readjusting the burden of taxation among school districts as it would have been if the unit system now repealed after being in operation for about nine months had never been created, is constitutional.</p> <p>The Legislature has undoubted powers to readjust the burden of taxation according to its conception of justice, and to correct inequality by a retroactive law.</p> <p>Chapter 518 of the Laws of 1918, entitled “ An act to amend the Education Law, in relation to the assessment and collection of school taxes in the county of Suffolk,” embraces but one subject, and that is expressed in the title, and hence it does not violate the provisions of section 16 of article 3 of the State Constitution.</p> <p>All presumptions are in favor of the constitutionality of an act of the Legislature, and before the act may be declared unconstitutional by the courts it must plainly appear that it so violates the Constitution that to uphold it would be to nullify pro tanto the Constitution.</p> <p>In a suit to determine the constitutionality of chapter 518 of the Laws of 1918 and to enjoin the collection of taxes, held that an ordér granting an injunction pendente lite should be reversed and the motion denied.</p>

Appeal by the defendant, Franklin C. Gilbert, as clerk, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 17th day of March, 1919, directing the issuance of a writ of peremptory mandamus commanding the town clerk of the town of Hempstead in Nassau county to accept and file a certain certificate of nomination.

Appeal by the defendant, Guaranty Trust Company of New York, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 6th day of February, 1919, denying its motion for an order interpleading the Evans Engineering Corporation, Thomas H. Gillespie and Thomas A. Gillespie as parties defendant. The plaintiff in August, 1917, obtained an ammunition contract from the United States government.

Appeal by the plaintiff, Edgar C. Messersmith, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of January, 1918, denying his motion for judgment on the pleadings, consisting of a complaint and the answer thereto.

Appeal by the defendant, Albert T. Fancher, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Brie on the 24th day of September, 1917, upon the decision of the court after a trial at the Erie Equity Term.

Appeal by the defendants, Howard Chichester, individually and as executor, 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 30th day of August, 1918, upon the decision of the court after a trial at the New York Special Term. .

Appeal by the petitioners, Charles Ries and another, from an order of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 31st day of August, 1918.

Appeal by the plaintiff, Harry Eisenbrock, 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 or about the 4th day of February, 1919, as resettled by an order entered on or about the 17th day of February, 1919, awarding to the defendant alimony and a counsel fee.

Appeal by Robert H. Fisher, Jr., as executor, and by Sarah Gardner, as sole legatee and devisee under the alleged last will and testament of Hastings Allaway, deceased, from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 3d day of September, 1918, refusing probate to said will.

<p>Tax — franchise tax on manufacturing and mercantile corporations — basis of tax — “ entire net income ” as returned to United States Treasury Department — not affected by deductions or credits allowed under Federal act — unequal or double taxation — presumption as to “ entire net income.”</p> <p>Under chapter 726 of the Laws of 1917, as amended by chapter 276 of the Laws of 1918, manufacturing and mercantile corporations are subject to a franchise tax of three per cent upon the “ entire net income ” for the fiscal or calendar year involved “ as returned to the United States Treasury Department subject to any correction thereof for fraud, evasion or errors ascertained by the State Tax Commission,” without any deduction for so-called excess profits taxes or income taxes paid to the Federal government during the year in .question.</p> <p>What is income for the year prior to the levying of the tax is a matter to be determined by the State Tax Commission and is not affected by what the Federal government allows in the way of taxes or credits in fixing the amount of the tax which the corporation is to pay to the Treasury of the United States.</p> <p>The “ errors ” in the “ entire net income ” for which the State Tax Commission is authorized to make corrections do not refer to errors of law through a failure of the State Legislature to adjust itself to the credits and exemptions of the Federal act. The errors are those referred to in subdivision 2 of section 211 of the Tax Law, as amended.</p> <p>The assessment of such a State franchise tax does not constitute a double franchise tax, though the National government makes use of the same foundation in levying an income tax.</p> <p>Under section 209 of the Tax Law there is a presumption that the “ entire net income ” returned by the corporation to the United States Treasury Department is the real net income.</p>

<p>Trial — attorney and client — when stipulation by attorney for discontinuance may be set aside.</p> <p>A stipulation authorizing the discontinuance of an action against certain defendants, made'by the attorney for the plaintiffs without their knowledge and consent, and without consideration, may be set aside and the order of discontinuance reversed, where nothing has intervened changing the situation or rights of the parties except said order of discontinuance.</p>

<p>Appeal by the plaintiff, Jacob & Youngs, 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 2d day of November, 1918, upon the verdict of a jury rendered by direction of the court.</p>

<p>Appeal by the defendant, Kaolin Products Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of October, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of October, 1918, denying defendants motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Williamsburg Steam Laundry 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 Kings on or about the 13th day of December, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Town of Whitestown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 8th day of December, 1917, upon the decision of the court after a trial at the Oneida Special Term.

<p>Mortgage — conveyance of mortgaged premises without assumption of debt by grantee — extension of time of payment — when mortgagors remain liable for deficiency on foreclosure — failure to present issue as to depreciation in value of property after extension— burden of proof—wife of mortgagor signing bond presumptively liable thereon.</p> <p>Where mortgagors conveyed the mortgaged premises to a grantee who gave back a purchase-money mortgage, but did not assume the prior mortgage, ■ an agreement between the mortgagee and the grantee extending the time of payment of the mortgage without the knowledge or consent of the mortgagors did not of itself release the mortgagors from liability for a deficiency on foreclosure.</p> <p>Under the circumstances, as the grantee did not assume the mortgaged debt, the only effect of the extension was to release the mortgagors to the extent of the value of the property at that time. If it was worth the amount of the indebtedness or more they were wholly released, but if worth less the mortgagors remained liable for the difference between its then value and the amount of the indebtedness.</p> <p>Where neither of the parties to the foreclosure made any allegation as to whether or not the property had depreciated in value since the making of the extension by the grantee there was no issue presented on this question.</p> <p>It seems, that if the grantee had assumed the prior mortgage he would, thereby, as between the mortgagors and himself, have become obligated to pay it and the mortgagors would then have stood in the relation of surety to the mortgagee for payment.</p> <p>It seems, that under the circumstances the burden of proof as to any diminution in the value of the security after the extension of the time within which to pay the mortgage rests upon the mortgagors who must plead and prove said fact.</p> <p>Where no issue was presented with respect to the value of the property at the time of the extension of payment of the mortgage by the grantee it will be assumed that it did not depreciate in value thereafter to the prejudice of the mortgagors.</p> <p>Where the wife of one of the mortgagors signed the bond in the presence of a subscribing witness but did not acknowledge it, and the execution was proved by him, she is presumptively liable upon the bond and especially so where the mortgage itself contains an agreement obligating her and her husband to pay the indebtedness.</p>

<p>Eminent domain — appeal — review of order of referee — authority of Appellate Division — effect of confirmation of report of commissioners upon title — when relation of vendor and vendee effected — vendor and purchaser — effect of execution of valid contract of sale — ownership of purchase money — prosecution of appeal by executors — right of executors to purchase at public sale — affirmance of order directing payment of award in condemnation proceedings notwithstanding claim of State in portion of land of negligible value.</p> <p>Where, upon an appeal from an order in a condemnation proceeding denying a motion to confirm the report of a referee, it appears that there was no sharp conflict in the testimony of witnesses, and that important facts do not depend upon the veracity of witnesses, the Appellate Division may adopt or reject the findings of the referee or those of the Special Term and make findings warranted" by the evidence.</p> <p>While in a condemnation proceeding pursuant to the General Railroad Law (Laws of 1850, chap. 140, as amd. by Laws of 1876, chap. 198), the title to the land sought to be taken does not pass to the petitioner by virtue of the confirmation of the report of the commissioners, where the owner accepts the report and the same is confirmed upon his motion, he will be held to haveeleeted to stand upon his lien, and as between him and the petitioner his relation becomes that of vendor, and the relation of the petitioner that of vendee.</p> <p>Where in an action by a landowner against a petitioner in prior condemnation proceedings to foreclose the plaintiff’s lien for the amount of the award, the defendants plead a contract made by the plaintiff with them for the sale of the land in question and a counterclaim due to a breach of said contract, a judgment determining the validity of the contract and the damages resulting from the breach thereof established the relation of vendor and vendee between the landowner and the petitioner.</p> <p>An owner of real estate from the time of the execution of a valid contract for its sale is to be treated as the owner of the purchase money and the purchaser of the land is to be treated as the equitable owner thereof. The purchase money becomes personal property and passes to the executors of the owner upon his death.</p> <p>An appeal by a landowner from a judgment in an action brought by him to foreclose his lien for an award in condemnation proceedings held not to have been prosecuted by his executors in bad faith, although it had been permitted to slumber for a long time after it was taken.</p> <p>Purchase of land at public sale by executors, individually, held not to be fraudulent, where the property was subject to a large amount of taxes and had been sold at tax sales and did not seem to invite purchasers, and where said executors were large creditors of the estate which was insolvent.</p> <p>Where there is a conflicting claim between the State and creditors of a deceased landowner involving the proceeds of a one-foot strip of land along a lot ninety-three feet in width, and it appears that said strip of land is of doubtful commercial value; that the creditors will be entitled to follow the money representing the value of said strip of land into the hands of the heirs at law of the deceased or into the treasury of the State, an order of the Special Term directing the payment of said proceeds to the creditors should be affirmed.</p>

Appeal by the defendant, Florida East Coast Hotel 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 May, 1918, upon the verdict of a jury for $16,500, and also from an order entered in said clerk’s office on the 24th day.of May, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Pleading — complaint in equity — demurrer — pledge of stock by president of corporation as security for loan — sale by pledgee and payment of loan from proceeds •—• use of money borrowed for benefit of corporation and for individual benefit of its president— complaint in action by owner of stock who loaned same to president of corporation demanding judgment for sum used for benefit of said corporation — failure to allege authority of president of corporation to borrow and pledge stock —■ sufficiency of allegations as to want of consideration for receipt of the borrowed money by the corporation.</p> <p>A complaint in equity insufficient to entitle the plaintiff to any equitable relief is demurrable even though it states a cause of action at law.</p> <p>An amended complaint alleging that the president of an insurance company for whose obligations the defendant has become hable by merger, borrowed stock from the plaintiff which was sold by the pledgee and a loan to said president paid from the proceeds; that a demand was duly made for the return of the stock before it was sold by the pledgee; that a portion of the proceeds of the loan was used by the president for his individual benefit and the remainder for the benefit of the defendant’s predecessor in repurchasing bonds; that the defendant’s predecessor did not pay or deliver any consideration either to the plaintiff or to its president or otherwise for the proceeds of the loan used for its benefit, and demanding judgment for the sum used for the benefit of the defendant’s predecessor but failing to allege whether or not the president of the defendant’s predecessor was authorized by it to borrow and pledge the stock, fails to state a cause of action and is demurrable.</p> <p>The plaintiff’s allegations with respect to want of consideration are insufficient.</p> <p>The plaintiff having alleged facts from which in the ordinary course of business there would be a good consideration provided the president of the defendant’s predecessor was not authorized to borrow and pledge the stock, he should be required to negative the existence of consideration and should not be permitted to cast the burden of pleading and proving consideration upon the defendant.</p>

<p>Pleading — right to supplemental answer alleging facts arising after entry of judgment and to reference of all the issues in the action — permitting original judgment to stand as security for alleged indebtedness of defendant — designation of another referee — inherent power of court to open judgments and permit litigation of new issues — effect of permitting original judgment to stand as security.</p> <p>Where, after the entry of a judgment against the defendant on a guaranty of bonds, facts occur affecting said defendant’s liability and its right to subrogation, it is entitled to an order granting leave to serve and file a supplemental answer alleging such facts and referring all of the issues in the action to a referee to hear, try and determine, and further permitting the judgment which was entered upon the report of a referee to stand as security for the alleged indebtedness of the defendant.</p> <p>Where such an order authorizes a new trial of all the issues and the consent on which the original order of reference in the action was granted did not contain any express provision precluding the application of section 1011 of the Code of Civil Procedure, the issues must be referred to another referee.</p> <p>The court has inherent power in thé furtherance of justice to -open its judgments and to permit the presentation and litigation of new issues.</p> <p>Authority to allow the service of supplemental pleadings is not limited to service thereof before the entry of the original judgment in the action.</p> <p>A judgment permitted to stand as security as in the order aforesaid is neither appealable nor enforcible as such, but is in effect a substitute for other security and is superseded by the final judgment in the action.</p>

<p>Pleading — effect of order granting motion to serve supplemental answer referring all issues to a referee and permitting original judgment to stand as security — judgment not enforcible pending retrial of issues — right to resettlement of order — when order denying motion to resettle not appealable.</p> <p>Where on a motion by a defendant to vacate a judgment and for leave to file a supplemental answer, the court grants an order permitting the service of a supplemental answer and referring all the issues in the action to a referee and permitting the original judgment to stand as security, an appeal therefrom cannot be prosecuted and no step may be taken by the plaintiffs to enforce said judgment pending the retrial of the issues.</p> <p>Under such circumstances the court should deny a motion by the defendant for an order limiting the security which it would be required to give to stay execution on the judgment pending its appeal therefrom.</p> <p>Plaintiffs not being aggrieved by an order made on such a motion reserving' the determination thereof with leave to the defendant to make further application, are not entitled to have it resettled.</p> <p>An order denying a motion to resettle a prior order is not appealable where the motion for resettlement was not made on any new facts or to correct any erroneous recital therein, but was to settle the order in the form proposed by the plaintiffs on the original hearing.</p>

<p>Appeal by the defendant, New York Municipal Railway Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of July, 1918, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendant, The Star & Herald 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 6th day of November, 1918, denying its motion to set aside the service of the summons and complaint herein.

<p>Constitutional law — Labor Law, section 79b, establishing requirements for safeguarding employees in existing factory buildings against fire is valid exercise of police power — enforcement of statute — validity and reasonableness of orders by Industrial Commission— action by owner of factory building to determine validity of orders of Industrial Commission made under section 79b of Labor Law — evidence.</p> <p>Section 79b of the Labor Law, which establishes the minimum requirements of safety in all factory buildings erected in this State prior to October 1, 1913, for the safeguarding of employeescagainst fire, is a valid exercise of the police power, and is constitutional.</p> <p>While in many instances compliance with said section may entail hardship upon the owners of buildings which at the time of their erection fully complied with all existing provisions of law, such hardship does not mean confiscation, and unless it results from the unreasonable exercise of arbitrary power on the part of the Legislature, no degree of hardship can justify the court in nullifying the statute, since it is the primary duty of the Legislature to protect the common interests of the whole people, even at the expense of personal or local interests.</p> <p>The mere fact that the statute cannot be enforced without causing expense to the citizen who comes within its provisions furnishes no constitutional obstacle to its enforcement.</p> <p>The fact that the exercise of the power may disturb the enjoyment of individual rights without compensation for such disturbance does not make laws and regulations of a public nature unconstitutional.</p> <p>In an action under sections 52a and 52b of the Labor Law to review a decision of the Industrial Commission of the State Department of Labor, made on appeal from certain orders issued and modified by said Commission, which required plaintiff, who is the owner of a sixteen-story building used for factory purposes, with an occupancy of over 600 persons, two-thirds of whom are engaged in factory work, and located on a busy corner in the city of New York, and having no exit whatever conforming to the requirements of section 79b of the Labor Law, to (1) inclose the existing interior stairway with fire-resisting material; (2) construct an exterior screened stairway or fire escape on the north side of the building running from the roof to the second floor with described openings thereto above, and therefrom below, the second floor, and (3) to construct a fire wall throughout the building, evidence examined and</p> <p>Held, that plaintiff’s factory building is unsafe for occupants in ease of fire; that the orders of the Commission in their modified form are valid and reasonable, and that the plaintiff’s complaint should be dismissed.</p>

Appeal by the defendant, The Board of Education of the City of New York, 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 3d day of February, 1919, granting the petitioner's motion for an alternative writ of mandamus.

Appeal by the plaintiff, Thomas Hackett, 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 December, 1918, upon the verdict of a jury rendered by direction of the court dismissing the complaint, and also from an order denying plaintiff’s, motion for a new trial made upon the minutes.

Appeal by the defendant, The Bank of Barcelona, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of November, 1918, denying its motion for judgment on the pleadings, consisting of the complaint and the demurrer thereto.

Appeal by the defendant, The Bank of Barcelona, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of October, 1918, continuing an injunction pendente lite and restraining the defendant Irving National Bank from paying out certain moneys, the proceeds of a sale of some almonds claimed to be the property of the defendant Francisco Visconti.

<p>Arrest in action for moneys received by agent in fiduciary capacity — order may not be vacated upon ground that complaint does not contain allegation required by subdivision 2 of section 549 of Code of Civil Procedure — granting order upon affidavits — amendment of complaint to contain allegations required by section 549 of Code of Civil Procedure.</p> <p>In an action to recover for moneys received by an agent in a fiduciary capacity, an order of arrest may not be set aside upon the ground that it could only be granted upon a complaint containing an allegation “ that the money was received * * * by an * * * agent * * * or other person in a fiduciary capacity,” as provided in subdivision 2 of section 549 of the Code of Civil Procedure, since under section 557 of the Code of Civil Procedure such an order may be granted in the case specified in section 549, where it appears by the affidavit of the plaintiff or any other person that a sufficient cause of action exists against the defendant as prescribed in that section.</p> <p>The provision of section 558 of the Code of Civil Procedure that “ where the order is applied for after the filing or service of the complaint, the court before granting the same may, without notice, direct the service of an amended complaint, so as to conform to the allegations required in subdivisions 2 and 4 of section 549,” contemplates that an order of arrest may be granted before the filing of the complaint. If, however, it be not asked for until after the filing of the complaint and the complaint does not contain said allegations, the court is authorized, without notice,' to direct the filing of an amended complaint which shall contain the allegations.</p> <p>Affidavits, alleging the transfer of the legal title to certain accounts to the plaintiffs and the authority of the defendants to collect the same and remit the proceeds, held, to establish a cause of action entitling the plaintiffs to an order of arrest, as the moneys thus collected were held by the defendants as the fiduciaries of the plaintiffs, and in an action for failure to pay them over or for their misapplication, the defendants would be liable as for moneys misappropriated.</p>

Appeal by William Reisfeld 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 13th day of January, 1919, granting their motion to ascertain and foreclose their attorneys’ hen herein, but fixing the same at the sum of only $150.

<p>Appeal by the defendant, American Spirits Manufacturing 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 8th day of March, 1919, vacating a judgment dismissing the complaint upon plaintiff’s default and failure to proceed to trial when the case was reached in its regular order in one of the parts of Special Term to which it had been sent from Special Term, Part 3, for trial.</p>

<p>Landlord and tenant — lease with option to purchase construed — liability of tenant after purchase for payment of interest on sums advanced by landlord for alterations.</p> <p>A lease provided that the tenant during the period covered thereby would pay to the landlord interest on all sums paid by the latter to the tenant for alterations, and that said interest should be paid monthly as part of and in addition to the rent reserved. It was also provided that the tenant should have the option of purchasing the premises for a certain amount, “ the net rents hereinbefore reserved to be apportioned as of the date of transfer of title.” Provisions of the lease construed, and held, that the tenant upon purchasing the premises was not bound to continue to pay interest on the sum advanced by the landlord for alterations during the remaining period of the lease, since the purchase price was fixed with that in view.</p>

<p>Pleading — complaint in action against employees of plaintiff and another to recover damages for conspiracy to defraud — joinder of causes of action.</p> <p>A complaint in an action by a foreign corporation with an office in this State, alleging that its general attorney and its general agent and an intimate friend and business associate of the latter, the defendants herein, “ wickedly intending and contriving to defraud the plaintiff and to make for themselves large and unlawful gains and profits at the expense of the plaintiff, entered into a joint conspiracy for the doing of the several acts hereinafter more particularly set forth; ” and setting forth in four separate paragraphs the specific manner in which the defendants “ in pursuance of said conspiracy ” and in violation of their duty, participated in each of the alleged overt acts and profited from the result thereof, examined, and held, to state a single cause of action for damages.</p>

<p>Appeal by the plaintiff, Annie V. Hoyt, 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 22d day of January, 1918, upon the decision of the court after a trial at the Bronx Special Term and also, as stated in the notice of appeal, from the decision.</p>

Appeal by the defendant, Maude R. Stoddard, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of December, 1918, denying her motion for judgment on the pleadings, consisting of the amended complaint and her demurrer thereto, and overruling said demurrer.

Appeal by the defendant, Maude R. Stoddard, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of January, 1919, granting plaintiff’s motion for an injunction pendente lite, and for leave to amend the amended complaint.

Appeal by the defendant, Edgar W. Bassick, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of January, 1919, overruling his demurrers to six causes of action set up in the complaint. The demurrers challenged the complaint upon the ground that.the pleadings in the several causes of action failed to state facts sufficient to constitute a cause of action.

Appeal by the plaintiffs, Alexander Nemolovsky, individually and as acting archbishop, 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 21st day of November, 1918, denying their motion for judgment on the pleadings and sustaining defendant’s demurrer to the amended complaint.

Appeal by the defendant, Page Manufacturing Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th day of February, 1919, denying a motion to vacate an attachment against defendant’s property.

Appeal by the defendant, Philip Frasco, from a judgment of the County Court of Kings county, rendered against him on the 16th day of May, 1918, convicting him of the crime of assault in the second degree as a second offense.

<p>Appeal by the petitioner, Charlotte V. Billet, from an order of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 5th day of February, 1919, denying her applicabion for letters of administration herein.</p>

Appeal by the plaintiffs, George A. Diack 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 Kings on the 20th day of May, 1916, upon a dismissal of the complaint on the merits by direction of the court at the close of the case.

Appeal by the plaintiff, Preston B. Ruland, 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 19th day of February, 1919, granting defendants’ motion to resettle a prior order.

<p>Appeal by the defendant, Lehigh Valley Coal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of February, 1918, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 5th day of March, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Christian Wildenberger, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 28th day of January, 1918, upon the verdict of… Held: as per legal papers.” The checks were returned, however, marked “ account closed.”

<p>Waters and watercourses — effect of conveyance by warranty deed of land under navigable water not owned by grantors — effect of intervention of public street between uplands and navigable waters upon riparian rights — effect of title of railroad company to land under right of way upon riparian rights—riparian rights may attach to land acquired by railroad company for purposes other than right of way — estoppel.</p> <p>The intervention of a public street between uplands and navigable water, where the title to the bed of the street is in the adjoining owners, does not deprive them of riparian rights.</p> <p>Neither does the title of a railroad company to the land underlying its right of way destroy the riparian rights appurtenant to the upland in front of which it runs, especially where the purposes for which the right of way is granted exclude the implication of an intent to confer riparian rights.</p> <p>The intervention of a railroad between the upland and the water may modify the riparian rights to the extent that the physical conditions compel, but does not destroy them.</p> <p>A warranty deed purporting to convey to a railroad company a strip of land under navigable water operates by way of estoppel against the grantors or their privies, precluding them from asserting rights against the grantee although the grantors did not own the land under water.</p> <p>A grant by the owner of uplands of land in front of his shore to a railroad company for purposes of passenger and freight stations, reserving access to and use of any wharf that the railroad company may erect on the land, carries with it the riparian rights not reserved, and the grantors and their successors, although they did not own the land under water at the time of the conveyance, are estopped thereby to deny an intention to convey the land with riparian rights, and have no interest or standing to challenge the validity of a subsequent act of the Legislature authorizing the Commissioners of the Land Office to convey the land to a municipality for park purposes.</p>

Appeal by the defendant, Baker-Vawter 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 18th day of December, 1917, upon the decision of the court after a trial at the New York Special Term, and also, as stated in the notice of appeal, from the decision and findings of the court. The judgment directed the delivery by defendant of certain bonds to the plaintiff.

Appeal by the plaintiff’s, Michael Blasius and another, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of November, 1918, vacating and setting aside orders for the examination of the defendant before trial.

Appeal by the plaintiff, Atlas Assurance Company, Limited, from part of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 28th day of June, 1918, upon the dismissal of the complaint as to the respondents by direction of the court at the close of plaintiff’s case, and upon the verdict in plaintiff’s favor against the defendant John L. Dudley, Jr., Company, later rendered.

Appeal by the City of New York 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 7th day of January, 1919, granting respondent’s motion to require the city to pay additional interest on her award.

<p>Appeal by the defendants, Harry P. Friedman 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 17th day of December, 1918, sustaining a demurrer to the third separate defense in the amended answer and dismissing said defense.</p>

<p>Appeal — decision of Court of Appeals reversing by implication order of Extraordinary Special Term appointing referee — expiration of Extraordinary Special Term by failure to continue same by further adjournment — validity of order granted by a justice at ExtraorL dinary Special Term after its expiration — motion to vacate said I order.</p> <p>Where, on appeal from so much of orders of the Appellate Division as affirmed the appointment of a new referee at an Extraordinary Special Term of the Supreme Court, remittiturs by the Court of Appeals recited that the orders so far as appealed from were reversed, and that the motion “ so far as concerns the appointment of another referee ” be “ remitted to the Special Term for further consideration upon the facts before it,” and the Appellate Division thereupon made the order and judgment of the Court of Appeals the order and judgment of the Appellate Division and remitted the motions in so far as they concerned the appointment of another referee “ to the Special Term for further consideration on the facts before it,”' said order of the Extraordinary Special Term appointing a new referee was not expressly reversed, but the effect of the decision of the Court of Appeals was to reverse said order by implication.</p> <p>Where an Extraordinary Special Term was adjourned to a certain date and place at which the justice designated to hold said term did not appear, and he gave no further direction to the clerk with respect to the adjournment of said term, and there was no further adjournment thereof either by the court, justice or clerk, and there was no other business pending at the time of the last adjournment, said term expired as if it had been adjourned without day.</p> <p>Hence, said Extraordinary Special Term having expired, the justice designated to hold the same had no jurisdiction to grant an order appointing a new referee pursuant to the aforesaid directions by the Court of Appeals and the Appellate Division, and as the orders so granted were null and void, they may be properly vacated on motion.</p>

<p>Appeal by the defendant, Chain Shirt Shops, 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 10th day of January, 1919, denying its motion to punish the plaintiff for contempt of court.</p>

<p>Attorney and client — summary application to compel attorney, not of record, to restore moneys received from judgment subsequently reversed.</p> <p>Where on appeal from an order denying a summary application to compel an attorney to restore moneys to the defendant, which the attorney received from a judgment which has since been reversed, it appears that said attorney was not the attorney of record but had procured another attorney to prosecute the action under an agreement by the latter to pay him a certain sum from the proceeds of any recovery, and' it is uncertain whether the sum paid to the attorney in question was from the moneys retained by the attorney of record for disbursements and services in the action or from moneys collected on the execution over and above the reasonable and necessary expenses and disbursements, the discretion of the Special Term should not be disturbed.</p> <p>But the fact that said attorney was neither a party nor the attorney of record does not prevent the granting of relief.</p>

Appeal by the defendant, Joseph Hyland, 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 30th day of December, 1918, in a habeas corpus proceeding.

Motion by plaintiff, Procter & Gamble Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the direction of a verdict in defendant’s favor by the court at the close of the ease upon a trial before the court and a jury at the New York Trial Term in November, 1918.

Appeal by Herbert Cohn and Frank Cohn, objectors, 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 13th day of July, 1918, judicially settling the accounts of the executrix of the last will and testament of Leopold Cohn, deceased, and also the accounts of the trustees under said will.

Appeal by the plaintiff, Frederick E. Hastings, 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 21st day of December, 1918, dismissing the complaint on the merits upon the decision of the court after a trial at the New York Special Term.

• Appeal by the defendant, City of Niagara Falls, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 13th day of February, 1918, .upon the decision of the court after a trial at the Niagara Special Term. The judgment decreed, among other things, that plaintiff acquired title to certain lands mentioned in the complaint.

Appeal by the petitioner, Mary Drosnes, 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 June, 1916, denying her application for the appointment of three persons to appraise the value of her stock in the respondent, and to direct the manner in which payment for said stock should be made as provided in section 17 of the .Stock Corporation Law (Consol.

Appeal by the defendants, Horace G. Pierce and others, as commissioners, and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 4th day of June, 1918, granting a peremptory writ of mandamus.

Appeal by the plaintiff, Herbert S. Sisson, as State Commissioner of Excise, from a judgment of the County Court of Oneida county, entered in the office of the clerk of said county on the 16th day of January, 1919, directing the return to the claimant of twenty-five barrels of beer and other liquors seized by the State Commissioner of Excise in confiscation proceedings, with notice of an intention to bring up for review the findings of fact and conclusions of law upon which…

Appeal by the plaintiff, Zerelda W. Beaty, 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 8th day of March, 1919, striking this case from the Trial Term calendar and directing its trial at Special Term.

Appeal by the defendant, Norfolk and Western Railway Company, from so much of an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 12th day of March, 1918, as denies upon certain conditions defendant’s motion to set aside the verdict and for a new trial, and also from an order entered in said clerk’s office on the 21st day of March, 1918, extending the time within which plaintiff may stipulate…

<p>Mortgage — action of foreclosure by guarantor of payment — contract of guaranty, under which depositary of payments frqm purchasers of portion of mortgaged realty was authorized to pay claims against mortgagor, construed •— broker having claim against mortgagor proper party defendant — counterclaim — right of broker to enforce payment against depositary.</p> <p>In an action by the guarantor of the payment of a mortgage to foreclose the same, it appeared that the president of the mortgagor realty company conducted an auction sale of ahout two-thirds of the land upon which the mortgage was a lien. The land was sold without any agreement on the part of the holder of the mortgage to give releases therefor. Thereafter the president of the mortgagor to secure releases of the lots sold entered into an agreement with the plaintiff by which the latter guaranteed the mortgage in consideration of the assignment to him of all bonds and mortgages received from the purchases at the auction sales, and the guaranty by the president of the mortgagor of the payment of said bonds and mortgages, together with other consideration. It was further agreed that all sums paid by the purchasers of lots and the proceeds of an award assigned to the plaintiff should be paid to a depositary which was authorized to apply the same to the payment of brokerage charges for services rendered to the president of the mortgagor and to the payment of other items.</p> <p>The plaintiff claimed that the depositary was only authorized to pay the aforesaid brokerage claim and was not directed to pay it, and that, therefore, no right of action accrued to the broker to enforce said claim either against the depositary or the plaintiff to which the depositary had paid the balance of the moneys.</p> <p>Held, that the broker was properly made a party to the foreclosure action and his counterclaim for brokerage charges may be considered;</p> <p>That under the agreement the depositary was given no discretion as to whether or not the different claims mentioned should be paid and the contract between the mortgagor, liable for- all of said claims, and the plaintiff authorizing the depositary to pay said claims was equivalent to a contract directing their payment.</p> <p>Since the contract was made for the benefit of the broker by the president of the mortgagor who was in privity with him by reason of liability for services rendered, it may be enforced without any assignment or special authorization from the debtor.</p>

<p>Principal and agent — contract by managing director of corporation. authorizing another to make an agreement with attorneys for fees — contract binding although principal did not have knowledge of details — evidence establishing primary liability of said managing director.</p> <p>Upon the declaration of war between Germany and the United States a director of the agent of a German corporation notified a lawyer that neither he nor his company would be responsible for any further fees in pending patent litigation. But the managing director of the German corporation, upon leaving for the west, being anxious to have the patent litigation continue, told said lawyer that the patent expert of the German corporation would make arrangements with him about bis fees, and said expert, after offering a guaranty by the managing director which was refused, agreed that said director should be primarily liable for the fees, which were fixed. Thereafter said lawyer wrote to the patent expert stating that his fees and the fees of a patent lawyer engaged by him would be the amount fixed. In an action against the managing director to enforce his liability for the fees the patent expert corroborated the lawyer to the effect that the latter was unwilling to take the defendant’s guaranty but wanted a primary liability, and it appeared that payments had been made by defendant’s personal checks and that he had written the lawyer that the patent expert may have made some arrangements but he did not know anything about them.</p> <p>Held, on all the evidence, that a judgment in plaintiff’s favor should be reinstated.</p> <p>Since the defendant had authorized the patent expert to make the contract for services it was binding upon him although he had no knowledge of the details.</p>

Appeal by the defendant, Cornell University, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1919, granting plaintiff’s motion for judgment on the pleadings, consisting of the amended complaint and a demurrer thereto.

Appeal by the plaintiff, Frank Hawkins, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of March, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, K. Wilbur Dolson 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 27th day of.January, 1919, denying defendant’s motion for judgment on the pleadings, consisting of a complaint and the answer thereto.

Appeal by the plaintiff, James J. Kelly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 11th day of December, 1917, upon the dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 30th day of November, 1917, setting aside and vacating the verdict of the jury in plaintiff’s favor for $4,000.

Appeal by the defendant, Feeney & Sheehan Building Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of June, 1918, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 15th day of August, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Lekas and Drivas, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1919, granting defendant’s motion for judgment on the pleadings, consisting of the complaint and an answer thereto, and also from the judgment entered in said clerk’s office on the 14th day of January, 1919, dismissing the complaint pursuant to said order.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1917, denying defendant’s motions to set aside the verdict of the jury herein as to question No. 1, and to direct a general verdict for the defendant and further granting plaintiffs’ motion to set aside the verdict of the jury as to question No. 2 and granting a new trial.

Appeal by the plaintiff, Globe and Rutgers Fire Insurance Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of June, 1918, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Shults Bread 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 9th day of May, 1918, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 12th day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the petitioners, Joseph Eugene Tucker 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 11th day of December, 1918, denying their application to be paid certain moneys deposited with the city chamberlain.

<p>Decedent’s estate — action by executor upon promissory notes executed by defendant payable to testator — defense — alleged oral contract by testator releasing defendant from liability — sufficiency of evidence to establish said contract —• evidence of said contract made prior to issuance of notes in suit not admissible.</p> <p>In an action by an executor as such to recover upon promissory notes made by the defendant, a nephew of the testator,'each of which was payable to the order of said testator, the defense interposed presenting the main issue was that by an oral agreement entered into between the testator and the defendant outstanding notes of the defendant payable to and held by the testator, of which the notes in suit were renewals, were to be deemed paid and discharged in case the defendant and his family furnished certain entertainment, counsel and advise for the testator so long as he should live. It appeared that defendant, learning that the testator had become estranged from his wife and children, took active steps to secure the good will and affection of his uncle who was then over seventy years of age. The testator in a will executed shortly before his death failed to mention the defendant or to refer to the notes in suit although he had possession of them. The defendant attempted to prove the alleged oral contract by friends and business associates. Evidence examined, and</p> <p>Held, insufficient to justify the submission of .the question of the validity of said oral contract to the jury.</p> <p>Since the alleged oral contract was made prior to the issuance of the renewal notes in suit it was not admissible in evidence to affect the validity of said written instruments.</p> <p>In the absence of written proof of a clear and convincing character of the existence of an alleged oral contract by a decedent, a claim upon the estate thereunder can only be allowed upon the production of evidence of a quality that leaves no reasonable doubt of the honesty of the claim made.</p>

<p>Appeal by the plaintiffs, Morris S. Trop and others, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of January, 1919, reversing a judgment of the City Court of the City of New York in plaintiffs’ favor and dismissing the complaint.</p> <p>An appeal is also taken from the judgment entered in the City Court on the 28th day of January, 1919, upon the remittitur from the Appellate Term.</p>

Appeal by the plaintiff, New York Mercantile Trading 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 12th day of June, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the plaintiff, W. & S. Job & Company, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of October, 1918, upon a dismissal of the complaint by direction of the court at the close of the case after a trial before the court and a jury.

<p>Appeal by the defendant, Title Guarantee and Trust Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1918, granting plaintiff’s motion to strike out certain denials and other matters in appellant’s answer.</p>

<p>Sale — action for breach of contract by defendant in failing to manufacture and sell articles — when option to terminate contract not exclusive remedy.</p> <p>In an action to recover damages for defendant’s failure to manufacture and sell articles pursuant to contract, the defendant neither pleaded nor claimed inability to manufacture or sell the minimum number of articles specified, its sole contention being that the option of terminating the contract was the plaintiff’s exclusive remedy. Provisions of the contract construed, and</p> <p>Held, that a judgment dismissing the complaint should be reversed and a verdict directed in favor of the plaintiff for a balance due him on the theory that the defendant was obligated to manufacture and sell a certain number of the articles during the first year of the contract.</p> <p>The option reserved to the plaintiff under his agreement with the defendant was an additional remedy for his own protection and was not intended to release the defendant of its liability, and, therefore, the plaintiff was under no obligation to exercise the option and was entitled to stand upon his rights under the contract.</p>

<p>Sale •— refusal of seller to deliver goods because of denial of credit to purchasers by factors — action by purchaser to recover diSerence between contract price and market price of goods — evidence — contract construed.</p> <p>In an action by a purchaser to recover the difference between the contract price and the market price of goods which the defendant had refused to deliver, it appeared that under the contract between the parties the purchase price was to be paid without deduction within thirty days after the end of the month during which the delivery was made, and that certain factors guaranteed the credit risk and the payment of the bills of all who purchased from the defendant and determined the amount of credit to be given to any person dealing with the defendant, including the plaintiffs, and that the former provisions were inserted in typewriting and the latter were printed.</p> <p>Held, that it was error for the trial court to hold that the written provisions were to be disregarded and that the factors had no authority to refuse to deliver the goods on credit.</p> <p>The defendant was under no obligation to take upon himself the risk of the credit, when by the contract it was plainly understood that such risk was to be assumed by the factors. The defendant, therefore, became obligated to perform the contract by giving credit only to the extent that the factors upon whose guaranty he relied approved the same.</p> <p>The plaintiffs were to have credit for such amount only as the factors approved.</p> <p>Under the circumstances the plaintiffs were not entitled to recover even though the factors acted in bad faith in refusing credit.</p> <p>Since the defendant within the contract period offered to deliver the balance of the goods to the plaintiffs for cash, with a deduction of six per cent for the credit period contemplated by the contract, which offer the plaintiffs declined, said plaintiffs sustained no recoverable damages, even though the defendant was guilty of a breach of the contract in refusing to deliver the goods on credit, and even though the price at which defendant offered the goods was less than the market price, for it was not shown that the plaintiffs were unable to pay cash.</p> <p>If the defendant was responsible for the action of the factors in terminating the credit, and the right to terminate it depended on the good faith of said factors, evidence that credit had been extended to the plaintiffs by other firms, and the extent thereof, and that the plaintiffs subsequently paid in full, would have been incompetent on that issue, for their good faith could not depend on the judgment of or risk taken by others over whom they had no control.</p> <p>The defendant’s motion to dismiss the complaint should have been granted.</p>

<p>Sale — pleading — sufficiency of complaint in action for purchase price of goods — effect of agreement by seller to hold goods for further orders — Personal Property Law, section 129, construed — acceptance preceding delivery — when title does not pass by mere notification of acceptance.</p> <p>A complaint in an action by a purchaser against a seller containing no allegation of a sale or that the goods were ever ascertained or set apart, or that being ascertained or set apart, they were, after offer to the defendant and its refusal to accept, held by the plaintiff for the defendant, examined, and held, insufficient upon its face to state a cause of action for the purchase price of the goods.</p> <p>In order to maintain an action under subdivision 1 of section 144 of the Personal Property Law for the price of goods, it is essential that the property in the goods shall have passed to the buyer.</p> <p>The mere agreement by a seller to hold for further orders a part of the goods contracted for, while subjecting it to liability for damage caused by a breach, does not entitle it to recover the purchase price on the theory that it had set apart and was holding for the purchaser goods which it had offered said purchaser but which the latter had refused to take, for in such ease the goods must be ascertained or set apart and held.</p> <p>Section 129 of the Personal Property Law, relating to acceptance, has reference to delivered goods and is to be read in connection with the preceding section.</p> <p>Acceptance may precede delivery, and where the goods are so ascertained as to be capable of acceptance by notification, title passes and the seller may recover the price though the delivery may be merely constructive.</p> <p>But title cannot be said to pass on a mere notification of acceptance, when the goods are not specific, and the sale is not of an undivided share of a specific mass, but the subject of the sale is merely unascertained goods.</p>

<p>Pleading — motion to amend pleading — practice — partition — order for distribution — failure to give notice — action by depositary of partition fund to recover alleged overpayment — amended answer alleging invalidity of order of distribution because of lack of notice.</p> <p>On a motion to serve an amended pleading, a denial of wMch might finally determine the rights of the parties, the court does not consider whether the pleader ought to be estopped from alleging certain facts or whether or not the plea is meritorious. Neither does the court determine the sufficiency of the plea as upon demurrer. But it does consider whether or not the pleading is frivolous.</p> <p>The court has no jurisdiction to make an order determining a defendant’s interest in the proceeds of a partition action, without notice to said defendant, and an order so made is void.</p> <p>Where, in an action by a trust company, with which a partition fund had been deposited, to recover from the defendant an alleged overpayment, the plaintiff relies upon the validity of the order of distribution, the defendant should be permitted to amend his answer so as to allege that said order was void as to him, because made without notice.</p>

<p>Carriers — provisions of bill of lading, promulgated pursuant to first Cummins Amendment to Interstate Commerce Act, construed — notice of claim against carrier for damages — limitation of action.</p> <p>Under a bill of lading, promulgated pursuant to the provisions of the first Cummins Amendment to the Interstate Commerce Act approved March 4, 1915, providing that “ except in case where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, claims must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or, in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed; ” that “ suits for recovery of claims for loss or damage, notice of which is not required, and which are not made in writing to the carrier within four months as above specified, shall be instituted only within two years after delivery of the property, or, in case of failure to make delivery, then within two years after a reasonable time for delivery has elapsed,’’ and that “ no claims not in suit will be paid after the lapse of two years as above, unless made in writing to the carrier within four months as above specified,” notice of claim in non-transit cases must be filed with the carrier within four months as specified, which is a condition precedent to recovery, and in such cases where the notice of claim is filed the short Statute of Limitations does not apply, but in all transit loss cases suit must be instituted within two years. •</p> <p>There is a differentiation made in the Cummins Amendment between “ notice of claims ” and “ filing of claims.” The former, which may be more or less informal, must be given within ninety days; the latter, which is to be formal and precise, is not required within a shorter period than four months.</p>

<p>Corporations — authority of president to negotiate contracts — attorney and client — title to costs — disbarment for interposing false answer and for making false statement that costs had not been collected and for conversion.</p> <p>The president of a corporation who is in charge of the management of its business is presumably authorized to execute a contract negotiated by him, and the corporation as against third persons is bound by the acts done within the scope of his apparent authority.</p> <p>In the absence of an agreement to the contrary, costs belong to the client and not to the attorney.</p> <p>An experienced attorney at law disbarred for the interposition of a false answer in an attempt to postpone the payment of a just and admitted claim, and also for the making of a false statement to his client that costs had not been collected by him, and for the conversion thereof to his own use.</p>

Appeal by Peter W. Van Peyma and others from a decree of the Surrogate’s Court of the county of Erie, entered in the office of said Surrogate’s Court on the 27th day of June, 1918, with notice of intention to bring up 'for review two other decrees.

<p>Appeal by the plaintiff, City of Syracuse, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 16th day of October, 1918, dismissing the complaint on the merits upon the decision of the court after a trial at the Onondaga Special Term.</p>

Reargument of an appeal by the defendants, Barber Asphalt Paving Company and others, from parts of 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 22d day of January, 1917, upon the decision of the court after a trial at the Monroe Special Term.

Appeal by the defendant, Charles Nessler, from an order of the Supreme Court, made at the New York Special Term and entered m the office of the clerk of the county of New York on the 21st day of December, 1918, overruhng his demurrer to the complamt.

Appeal by the defendant, Charles Nessler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1918, overruling his demurrer to the complaint.

1 Appeal by the defendant, The Ridgway 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 31st of May, 1918, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of May, 1918, denying defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review an order entered in said clerk’s office…

Appeal by the plaintiff, Imperial Products Company, Inc., 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 City Court of the City of New York on the 15th day of May, 1918, reversing a judgment of said City Court and dismissing the complaint.

Appeal by the People of thé State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of October, 1918, sustaining a writ of habeas corpus and discharging the relator from custody.

<p>Corporations — contract to purchase foreign corporation and divide profits construed — suit in equity by party to said contract against other party thereto, the corporation, and its directors to compel plaintiff’s reinstatement as manager — adequate remedy at law — injunction—jurisdiction to control discretion of board of directors of foreign corporation.</p> <p>Plaintiff, a resident of Pennsylvania, and the defendant W., residing in this State, entered into a contract for the purchase of all the issued shares of stock of an existing Pennsylvania corporation operating a factory in said State, providing, among other things, that the net earnings of the corporation should be distributed in certain proportions and that the plaintiff should be employed as general manager with a certain salary. After the plaintiff was ousted from his position the general office of the company was removed to the city of New York and it is now engaged in business in this State. In a suit in equity by the plaintiff against W. and also said corporation and its officers and directors, to obtain an injunction restraining the defendants from violating plaintiff’s contract and from excluding him from the management of the business,</p> <p>Held, that the plaintiff is not entitled to any equitable relief;</p> <p>That if he was wrongfully discharged and the contract was binding upon the corporation or W., he has an adequate remedy at law;</p> <p>That it is not competent for a court of this State to compel said foreign corporation or its board of directors through any authority or control that said W. may have as owner of the majority of the capital stock, to reinstate and continue the plaintiff as manager.</p> <p>Injunction is not an appropriate remedy to procure relief for past injuries or to restore parties to rights of which they have already been deprived.</p> <p>Courts of equity of one jurisdiction will not assume jurisdiction of a cause involving the internal affairs and management of a corporation regulated by the statutory law and public policy of a foreign country or a sister State. Such issues will be relegated to the local jurisdiction. This rule precludes the exercise of jurisdiction to control the judgment and discretion of the board of directors of such a corporation with respect to the appointment, removal or reinstatement of its officers or agents.</p> <p>Sheakn and Mekrell, JJ., dissented, with opinion.</p>

Appeal by the defendant, Henry Pearson, 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 July, 1918, upon the decision of the court after a trial before ¡the court, a jury having been waived.

<p>Appeal by the defendant, Carrie C. Moers, 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 or about the 27th day of January, 1919, overruling her demurrer to the complaint.</p>

Appeal by the defendant, Florence M. Christal, from a determination and order of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, 1918, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District. An appeal is also taken from the judgment of the Municipal Court.

<p>Statute of Frauds — oral contract of employment for one year — computation of period of employment.</p> <p>Where, in an action to recover damages for the 'wrongful discharge of the plaintiff under an oral agreement of employment for a year, it appears that he was employed for a year on Saturday, September twenty-second, the time within which the contract was to be performed should be reckoned from the day following the day on which it was made, and the period would expire on Sunday, September twenty-second, of the following year, which is “ within one year from the making thereof,” and, therefore, the Statute of Frauds is not a defense.</p> <p>In construing subdivision 1 of section 31 of the Personal Property Law, relating to the time within which agreements must be performed under the Statute of Frauds, recourse must be had to the provisions of the General Construction Law under which the day from which any specified period of time is reckoned is to be excluded in making the reckoning, whether time is to be measured by days, weeks, months or years.</p>

Appeal by the plaintiff, Hannah Jacobsohen, from an order of the County Court of Bronx county, entered in the office of the clerk of said county on the 13th day of January, 1919, setting aside the verdict of a jury in her favor in the sum of $750 and granting a new trial.

<p>Appeal by the defendant, Board of Foreign Missions of the Methodist Episcopal Church, from so much of a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of New York on the 14th day of June, 1918, as adjudges that the bequest and gift in clause 5 of the will of Edward M. Knox, deceased, of $10,000 “ to the Charles Knox Memorial (Methodist) Church, in Manila, Philippine Islands,” is invalid, and from other parts of the judgment.</p> <p>The judgment was rendered upon the decision of the court after a trial at the New York Special Term.</p>

<p>Appeal by the defendant, Supreme Council Catholic Benevolent Legion, from a determination and order o.f the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the Municipal Court of the City of New York for the Third District, Borough of Manhattan, on the 10th day of April, 1918, affirming a judgment of the Municipal Court of the City of New York for said district.</p> <p>The issues were tried in the Municipal-Court before a judge without a jury.</p>

Appeal by the defendant, George H. Eobinson, 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 7th day of November, 1918, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Tax — transfer tax — taxation of vested remainders at time of death of testator — provision of statute exempting estate less than $10,000 applies to entire estate and not to individual legacies — res judicata — when order of surrogate confirming report of appraiser not res judicata as to the vesting of remainders — erroneous direction to executor to pay transfer tax where estate administered by trustee — correction of error by Appellate Division.</p> <p>Where a testator died in 1897 leaving his property in trust to his wife during her life, with specific legacies to his four sisters who survived him, if his wife should not survive, or if she should survive then upon her death, the legacies to the sisters vested immediately upon the death of the testator subject only to the intervening life estate of the wddow and were taxable at the time of the death of the testator upon their value as of that date.</p> <p>An order of the surrogate merely affirming a report of an appraiser fixing the value of the estate of the testator and the amount of the tax imposed on certain other legacies at that time, the appraiser stating that he was unable to tax the legacies to the sisters, and proceeding on the theory that the estate was contingent, is not res judicata as to the title to the legacies.</p> <p>The only matters that are res judicata are those embodied in an order or judgment.</p> <p>The provision of the Tax Law that an estate less than $10,000 shall not be taxed applies to the entire estate left by the testator and not to the individual shares bequeathed to the various legatees.</p> <p>An order of the surrogate directing the executor to pay a transfer tax, although the estate is being administered by a trustee, may be corrected by the Appellate Division on appeal.</p> <p>Where a will directs a transfer tax to be paid out of the estate by the executor or trustee, it is not necessary to apportion said tax among the legatees.</p> <p>The value of the remainders having been correctly appraised as of the time of the death of the testator and the value of the legacies to the sisters at that time being clearly ascertainable, it is merely necessary to fix the tax thereon at the rate of one per cent after deducting the value of the realty which was not taxable under the statute in effect at that time, and then fix a tax at the rate of five per cent on the balance, real and personal, payable to the other legatees.</p>

<p>Sale — action for breach of contract — extension of time by demanding delivery after contract date —failure of plaintiff to subsequently put defendant in default — action for breach of contract to manufacture kettle “to be tested to 100 pounds”—finding that kettle was not so tested against weight of evidence.</p> <p>Where in an action for the breach of a contract to manufacture and sell a certain article, the testimony of a witness of the defendant is uneontradicted that the plaintiff called for the delivery of the article long after 'the date on which it should have been delivered, thereby extending the time for a reasonable period, and there is no testimony that at any time thereafter the plaintiff put the defendant in default, a judgment in favor of the plaintiff must be reversed and a new trial granted.</p> <p>In an action for the breach of a contract by the defendant to manufacture and sell to the plaintiff an iron kettle in conformity with certain specifications furnished by the plaintiff, said kettle “ to be tested to 100 lbs. Hydraulic test,” it appeared that the first day the kettle was put into use it exploded, although the pressure just prior to the explosion did not exceed 85 pounds. The defendant claimed and introduced evidence to show that the kettle had been tested before delivery by steam pressure to 112 pounds and by hydraulic pressure to. 110 pounds. Evidence examined, and</p> <p>Held, that a finding that the kettle was not tested as required by the contract is against the weight of the evidence, and that a judgment in favor of the plaintiff should be reversed and a new trial granted.</p>

<p>Appeal by the relator, Sarah T. Cockcroft, 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 September, 1918, dismissing a writ of certiorari and confirming a decision of the board of appeals of the city of New York sustaining three orders of the fire commissioner.</p>

<p>Appeal by Edith Stuyvesant Vanderbilt and another, as executors, 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 18th day of November, 1918, reversing an order fixing the transfer tax herein and remitting the report of the appraiser to' him for correction.</p>

Appeal by the plaintiff, Bruce Robertson, 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 30th day of January, 1917, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Landlord and tenant — action for rent — pleading — complaint — answer — payment not provable under general denial of allegation of non-payment — defenses — assignment of lease with knowledge and consent of landlord — new agreement with assignee of subtenant— permitting premises to be used as disorderly house.</p> <p>Where in an action to recover rent under a written lease in which the defendants covenanted not to assign the lease without the consent of the landlord, the answer, after denying upon information and belief the allegation of non-payment in the complaint, alleged three separate defenses: First, that the defendants had assigned the lease with the knowledge and consent of the plaintiffs and that the assignee had entered into full possession and paid the rent; second, that said assignee assigned his interest in the lease and that plaintiffs subsequently and prior to the commencement of this action entered into a new agreement with the tenants then in possession; and third, that for a period commencing prior to the months for which rent is claimed the tenants in possession, with the knowledge and acquiescence of the plaintiffs, conducted the premises as a disorderly house as a violation of law, a motion by the plaintiffs for judgment on the pleadings should be granted.</p> <p>New matter by way of defense must be alleged as a defense.</p> <p>Payment cannot be proved under a general denial of the allegation of non-payment.</p> <p>Neither the consent of a landlord, to the assignment of a lease nor the acceptance of rent from an assignee of the original tenant releases the latter from his covenant to pay rent unless there is an express agreement by which the lessee is released from his covenant or facts shown from which such agreement can be implied.</p> <p>The second separate defense would have been sufficient had it been alleged that the new agreement was inconsistent with the terms of the original lease and was entered into prior to the time the rent sued for became due.</p> <p>The third defense was insufficient because of the failure to plead that the premises became disorderly or continued to be so during the term of the lease sued upon.</p>

Appeal by the relators, John F. Hylan, as mayor, 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 February 1919, denying their motion for a writ of prohibition restraining the defendant from taking any further proceedings in the matter of his attempt to adjudicate and determine the proper disposition of public moneys apportioned to the city of New York under the…

Appeal by the defendant, Ida J. Graves, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Cortland on the 10th day of November, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Forest City Printing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 2d day of January, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Pleading — action for money had and received — supplemental complaint — joinder of causes of action — supplemental facts in aid of original cause of action — action at law must be complete when commenced — failure to allege service of notice of rescission prior to commencement of action — remedy of plaintiff upon denial of motion for leave to serve supplemental complaint.</p> <p>Facts alleged in a supplemental complaint must be in aid of the original cause of action and must not constitute a new and independent cause of action.</p> <p>Where an original complaint sets out a cause of action for money had and received based upon a rescission of a contract by the plaintiff upon the ground that the defendant had faded to carry out the same, and a proposed supplemental complaint sets forth three causes of action; the first, substantially the same as that alleged in the original complaint; the second, alleging that the contract was induced by fraud of which the plaintiff was ignorant when the action was begun and that on discovering the fraud he rescinded the contract; and the third, realleging the facts constituting the first cause of action and then alleging that the defendant did not intend, when the contract was made, to perform the same but intended to defraud the plaintiff because of which plaintiff gave notice of rescission after the commencement of the action, said causes of action are not inconsistent and may be joined in one complaint.</p> <p>While the ground for rescission is different in each case, the cause of action is the same, and, therefore, the supplemental facts are in aid of the original cause of action.</p> <p>Since the notice of rescission, essential to the claim of fraud as pleaded in the proposed supplemental complaint, was not given until after the commencement of the action, the motion for leave to file said complaint must be denied.</p> <p>To allow the proposed additional causes of action to be pleaded would controvert the well-settled rule that a cause of action at law must be complete when it is commenced.</p> <p>The plaintiff may obtain full relief by securing leave to discontinue the present action and then beginning a new one.</p>

Appeal by the defendant, American Oil Export Company, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of th*e clerk of the county of New York on the 21st day of November, 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 20th day of November, 1918, denying appellant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Webster Motor Sales Company, Inc., from a judgment of the County Court of Schenectady county in favor of the plaintiff, entered in the office of the clerk of said county on the 10th day of June, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Symphony Theatre Company, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 31st day of December, 1918, dismissing the complaint on the merits upon the decision of the court after a trial at the Chemung Special Term.

Appeal by the defendant, Charles McDonald, from a judgment of the County Court of St. Lawrence county, entered in the office of the clerk of said county on the 12th day of July, 1917, affirming a judgment of a Justice’s Court, and also from the order of the County Court pursuant to which the judgment was entered.

<p>Appeal by the plaintiff, Aaron L. Mercer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 17th day of December, 1917, upon the decision of the court after a trial at the Erie Equity Term.</p>

Appeal by the defendant, New York Central Railroad Company, from a judgment of the County Court of Niagara comity in favor of the plaintiff, entered in the office of the clerk of said comity on the 5th day of April, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Albert Beck, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of January, 1919, reversing a judgment of the City Court of the City of New York, entered in the office of clerk of said court on the 25th day of April, 1918, and also reversing an order of said City Court denying defendant’s motion for a new trial made upon the minutes.

<p>Contract — action by corporation maintaining institution for physical development to recover upon signed application for treatment — physical inability of applicant to receive treatment — want of consideration — practice of medicine without license in violation of Public Health Law.</p> <p>Where plaintiff, incorporated “ to establish, maintain and operate an institution in which persons may obtain accommodation for rest, physical "exercise, bathing, massage and hygienic treatment,” advertised to treat by physical exercises, etc., diseases and physical conditions of patients, although neither its president nor any employee was a duly licensed physician, and the defendant, who had signed an application for membership in the plaintiff and agreed to pay a certain sum for treatment, discovered that after the acceptance of his application and the receipt of a trial treatment he was physically unable to receive other treatments, a judgment in favor of the plaintiff should be reversed upon the ground of want of consideration, and the complaint dismissed.</p> <p>The plaintiff was not engaged in the practice of medicine within the definition and purport of the Public Health Law. (Per Clarke, P. J., and Laughlin and Page, JJ.)</p>

Appeal by the defendant, Gladys Mary Moore, from a 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 November, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of November, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, LeRoy D. Ball, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of December, 1918, denying his motion to remove the referee herein.

<p>Real property — waters and watercourses — title to island in Mohawk river in vicinity of Schenectady under English grant executed in 1684.</p> <p>Provisions of a patent made by the English in 1684 examined and held to have conveyed to the town of Schenectady a tract of land including an island in the Mohawk river in the vicinity of Schenectady, and that claimants against the State for damages from the appropriation of said island for the purposes of the Barge canal have proven a chain of title under said grant.</p>

Appeal by the defendants, Lucius N. Littauer and others, from an order of the Supreme Court, made at the Clinton Special Term and entered in the office of the clerk of the county of Schenectady on the 9th day of January, 1919, overruling a demurrer to the complaint, and also from the interlocutory judgment entered in said clerk’s office on the same day pursuant to said order.

<p>Appeal by the defendant, Joseph Esposito, 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 6th day of December, 1918, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 18th day of December, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Workmen’s Compensation Law — right of superintendent to compensation although a stockholder and treasurer of the employer — award — estimate of proportionate loss of use of hand — commutation of award and payment of lump sum.</p> <p>A superintendent or manager of a plant injured while in the discharge of the duties in which he was regularly employed is entitled to an award although he was the treasurer of the company and was paid a salary of $5,000 a year.</p> <p>It is the character of the employment which determines the right to relief under the statute, and not the fact that the claimant is a stockholder and officer of the employer.</p> <p>Where a claimant lost four fingers on his right hand, it was competent for the Commission to estimate the proportionate loss of the hand.</p> <p>While the commuting of awards and the payment of lump sums is not to be encouraged and should not be resorted to except in special eases where justice will be promoted, such a disposition should not be interfered with where the parties originally acquiesced therein.</p> <p>Lyon and Cochrane, JJ., dissented.</p>

<p>Appeal by the claimant, Selma Trouton, from an order of the State Industrial Commission, entered in the New York city office of said Commission on the 27th day of November, 1917, refusing to make an award herein.</p>

Appeal by the defendants, Rheinstein & Haas, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 2d day of July, 1918.

<p>Appeal by the defendants, McLoughlin Bros., Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 14th day of June, 1918.</p>

<p>Appeal by the defendant, Annie Miller, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of February, 1919, opening her default, as provides that the judgment entered upon the default shall stand as security for any recovery in the action, and directs that she pay thirty dollars costs, in default of which the motion to open the judgment is denied.</p>

Appeal by the plaintiff, Margherita Conti, from a judgment of the Supreme Court in favor óf the defendant, entered in the office of the clerk of the county of Westchester on the 28th day of February, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes, as resettled by an order entered in said clerk’s office on the 15th day of March, 1917.

Appeal by the defendant, Staten Island Rapid Transit 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 15th day of November, 1918, upon the verdict of a jury for $3,050, and also from an order entered in said clerk’s office on the 12th day of November, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, La Mura Contracting Company, Inc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of February, 1918, granting plaintiff’s motion to compel acceptance by defendant’s attorneys of service of a copy of the complaint, with ten dollars costs to plaintiff, and denying defendant’s counter motion to dismiss the complaint, or if the action be not…

Appeal by the defendant, Pennsylvania Railroad Company, from each and every award of the State Industrial Commission made herein and entered in the office of said Commission on the 9th day of April, 1918.

<p>Husband and wife — separation agreement releasing claims of wife as widow to exemption out of property of deceased husband — immaterial alteration not aSecting agreement.</p> <p>Provisions of an agreement of separation under which a husband paid to his wife a certain sum in consideration of her agreement to release him from all marital obligations, examined and held, that the wife intended to and did thereby release all claims which she might otherwise have to any and all property, real and personal, owned by her husband prior to his death and that she thereby barred herself from the exercise of her right to have certain personal property set apart to her as exempt.</p> <p>Words claimed to have been added to an agreement which would not have altered its meaning are ineffective to destroy its force.</p>

<p>Eminent domain—appropriation of land by Forest Preserve Board under chapter 130 of the Laws of 1908 — award by Court of Claims for land taken and for damages to other land — constitutional law — holder of option has no claim against State for condemnation— costs — expense of searches.</p> <p>The State Ftirest Preserve Board appropriated land of the claimant under chapter 130 of the Laws of 1908 under which statute the claimant asserted its right to take and remove certain spruce timber upon the condition stated. Provisions of the statute and of the agreement between the parties examined and held, that a judgment of the Court of Claims, awarding the claimant a certain sum for the land appropriated and a certain amount as damages to other lands on the ground that claimant was deprived of access to the railroad over the appropriated land, should be affirmed.</p> <p>The provision of said statute giving the claimant the right to take and remove timber upon the conditions stated is not an invasion of said claimant’s constitutional rights.</p> <p>One to whom the claimant gave an option to purchase the land appropriated within a certain period had no interest in the land itself and no claim against the State for its condemnation.</p> <p>The statute may properly deny costs in condemnation cases.</p> <p>The claimant in this case is not entitled to he reimbursed for counsel fees and the costs of experts in the woods but might have been entitled to an allowance for the cost of searches if it had' furnished a definite statement thereof.</p>

<p>Workmen’s Compensation Law — annulment of award and dismissal of claim — practice — when claimant not given fair hearing — conclusiveness of award against State Fund — continuing jurisdiction of Commission — presumption preventing interference with award on the facts — power to change an award — liability of State Fund same as that of other insurance carriers — evidence insufficient to justify vacating award.</p> <p>The State Industrial Commission should not annul an award and dismiss the claim upon the written opinions of two physicians, where it appears that one of said opinions was written after the hearing was closed, that neither opinion was made a part of the record at any hearing, and that the claimant had no knowledge of them and no chance to cross-examine or be heard with reference thereto. Such practice does not give a claimant the fair hearing contemplated by the statute.</p> <p>An award is final and conclusive as against the State Fund, no appeal having been taken, bjit the Commission has continuing jurisdiction with power to change its determination as justice may require.</p> <p>The presumption raised by section 21 of the Workmen’s Compensation Law, and the provisions of sections 23 and 20, prevent an interference with an award on the facts, unless there is substantial evidence of a mistake which, in the interest of justice, compels such action.</p> <p>Sections 22 and 74 of the Workmen’s Compensation Law must be given a broad and liberal interpretation and are intended to remedy an apparent ^ injustice.</p> <p>Where the State Fund has assented to an award it will not be permitted a review upon appeal. Nor upon its application should the Commission annul the award except upon new evidence clearly showing its injustice and that the counsel for the Commission was deceived, overreached or acted upon a clear mistake of fact:</p> <p>The mere fact that cumulative evidence has been found which may bear negatively upon a question of fact already amply proved and understandingly conceded is not in itself a basis for annuling an award.</p> <p>The power to change an award is not an arbitrary one, but is a judicial discretion, to be exercised only in the interest of justice.</p> <p>The liability of the State Fund is in all respects the same as that of any other insurance carrier and is established by like proof.</p> <p>Opinions of two physicians and evidence examined and held, insufficient as a basis for a determination that the interests of justice require the award to be vacated and the claim dismissed.</p>

<p>Appeal by the plaintiff, The Isaac L. Rice Memorial Hospital for Convalescents, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 8th day of January, 1918, overruling a demurrer to a separate defense contained in the answer of the defendant Village of North Tarrytown.</p> <p>Appeal by the defendants, Village of North Tarrytown and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 8th day of January, 1918, denying their motion for judgment on the pleadings consisting of the complaint, answer and demurrer thereto and for a dismissal of the complaint.</p>

Appeal by the plaintiff, Mary C. Diggs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 28th day of December, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of December, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

Appeals by the defendants, C. W. Miller Transfer Company and Hotel Touraine Company of Buffalo, from two orders of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 14th day of January, 1919, denying their separate motions to change the place of trial herein from Kings county to Erie county.

<p>Appeal by the defendant, Elizabeth Whitlock, from a judgment of the County Court of Tompkins county, rendered against her on the 21st day of November, 1918, convicting her of the crime of arson in the third degree, and also from an order denying her motion for a new trial.</p>

Appeal by the defendant, The City of Albany, 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 18th day of October, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Ignaz Strauss, from so much of an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 23d day of December, 1918, as denies his motion for judgment on the pleadings and grants the defendant’s motion for judgment on the pleadings and directs that judgment be entered dismissing the complaint with costs, upon plaintiff’s failure to serve an amended complaint.</p> <p>The pleadings consisted of a complaint and the demurrer thereto.</p>

<p>Appeal from order of the Supreme Court, entered in the New York county clerk’s office November 6, 1918, denying the defendant’s motion to set aside service of summons.</p>

<p>Railroad — carrier — loss of goods in transit.</p>

Appeal by the defendants, Henry Gillen & Sons, Lighterage, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 31st day of July, 1918. Award affirmed. All concurred, except H. T. Kellogg, J., dissenting, with an opinion in which Woodward, J., concurred.

<p>Appeals from parts of a judgment of the Supreme Court, entered in the Monroe county clerk’s office on the 29th day of August, 1918.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Brie county clerk’s office on the 1st day of November, 1917, dismissing the plaintiff’s complaint.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Brie county clerk’s office March 12, 1918, and also from an order entered March 13, 1918.</p>

<p>Appeal from an order of the Surrogate’s Court of Genesee county, entered December 23, 1918.</p>

<p>Appeal from a decree of the surrogate of New York county, dated March 5, 1918, confirming the report of a referee.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the New York county clerk’s office April 10, 1918, upon a decision after trial at Special Term, construing the will of Roland D. Jones, deceased.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office, denying the plaintiff’s motion for judgment on the pleadings.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the Erie county clerk’s office June 7, 1918, in favor of the plaintiff for $1,650.25 damages, and $106.97 costs, upon the verdict of a jury at the Erie Trial Term; also from an order entered July 17, 1918, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Appeal from a judgment of the Supreme Court, entered in the office of the clerk of the county of Herkimer on the 11th day of February, 1918, and also from an order entered on the 23d day of February, 1918.</p>