Volume 188 — New York Appellate Division Reports

<p>Workmen’s Compensation Law—death of garage employee by accidental discharge of pistol being shown to him by garage foreman — injury not received as incident of work — claim dismissed.</p> <p>Where a foreman in charge of a garage invited an employee who was returning to the garage after supper, to come into the office and see a pistol which said foreman had taken from an automobile, and the pistol was accidentally discharged causing the death of the employee, an award under the Workmen’s Compensation Law should be reversed and the claim dismissed, because said foreman was not acting in the discharge of his duties as such or carrying forward the interests of his employer, but with the deceased employee was engaged in the consummation of a purpose personal to each of them.</p>

Appeal by the Board of Assessors of the Town of Ossining from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 12th day of July, 1918, granting an application to strike from the assessment roll of said town for the year 1917 the real property assessment of the petitioner, on the ground that said real property is exempt from taxation.

Appeal by the defendant, Sylvester Cashdollar, from a judgment of the County Court of Ulster county, rendered against him on the 17th day of April, 1918, convicting him of violating the Liquor Tax Law, and also from an order denying his motion to set aside the verdict and for a new trial, and also from an order denying his motion to dismiss the indictment.

Appeal by the defendant, Supreme Council of the Royal Arcanum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 4th day of December, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of November, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Motor vehicles — negligence — injury to pedestrian struck by automobile — prima facie case — appeal — when defendant cannot raise question of plaintiff’s failure of proof.</p> <p>Upon appeal from a judgment in favor of the plaintiff in an action for personal injuries from being struck by defendant’s automobile, in which the plaintiff’s testimony made out a prima facie case, the defendant, who on a motion for nonsuit did not point out the fact that the plaintiff had failed to prove defendant’s ownership of the car and his control over its driver, cannot raise such objection for the first time.</p> <p>Such an omission in the plaintiff’s case should have been pointed out by the defendant in the court below upon his motion to dismiss.</p>

Appeal by the plaintiff, Albert M. Olm, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 10th day of January, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Edward Gumberg, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of January, 1919, denying his motion to vacate an order for his examination before trial.

Appeal by the defendant, Jacob Saul, from a judgment of the County Court of Kings county, rendered against him on the 31st day of May, 1918, convicting him of the crime of receiving stolen property in the first degree under section 1308 of the Penal Law. An indeterminate sentence of from two and one-half to five years has been stayed under a certificate of reasonable doubt.

Appeal by the plaintiff, Nellie C. Doty, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Rensselaer on the 4th day of January, 1919, denying her motion for leave to serve an amended and supplemental complaint.

Appeal by the plaintiffs, Frederick Johnson and others, as executors, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 13th day of August, 1918, dismissing their claim.

In the first proceeding certiorari issued out of the Supreme Court and attested on the 6th day of September, 1918, directed to Charles B. Hill and others, constituting the Public Service Commission of the State of New York for the Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in making certain orders relative to the distribution of gas by the relator.

Appeal by the plaintiff, Lloyd Birdsall, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 30th day of April, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of May, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Emma Schleestein, 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, denying plaintiffs motion for a separate trial of the issues raised by two affirmative defenses in the answer.

Appeal by the defendant, New York Consolidated Railroad Company, from awards of the State Industrial Commission, entered in the office of said Commission on the 29th day of October, 1918, and the 26th day of November, 1918, respectively.

<p>Municipal corporations — eminent domain — street opening proceeding — failure of commissioners of appraisal to consider resulting and consequential damages — duty of commissioners when viewing property.</p> <p>It is error for commissioners of appraisal, appointed to ascertain the damages to a property owner by the extension of a city street through his land, to fail to consider or make any allowance for resulting damages caused by the grading of said street, the flooding of the premises from the proposed construction, or from the necessity of filling in lots in order to conform to the proposed grade of the street, or to fail to consider consequential damages which may be caused by the construction of said street.</p> <p>Condemnation commissioners in viewing the property and in reaching a conclusion should take into consideration the probable consequences of the street as affecting the remaining property.</p>

Appeal by the plaintiff, William. C. Truax, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 18th day of May, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from the order of dismissal. The defendant owns an office building in Gloversville, N. Y., five stories high with elevator service.

Appeal by the defendants, R. F. Stevens Company and another, from a decision and award of the State Industrial Commission, made on or about the 27th day of September, 1918.

Appeal by Elizabeth Bischoff, widow and contestant herein, 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 2d day of May, 1917, except from the provision of said decree adjudicating that a certain contract between the executor and his attorneys was unreasonable and unenforcible and except from the provisions which direct payments to herself or her attorneys.

Appeal by the defendant, Purchase Holding Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of November, 1918, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 26th day of November, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Guaranty and suretyship — landlord and tenant — deposit by third person as security for payment of rent during last year of term — when said deposit not applicable to payment of rent accruing during first year upon dispossession of tenant.</p> <p>A deposit by a third person “ as security for the payment of the rent for the demised premises in the annexed lease which will accrue for the last year of the demised term,” cannot be applied in payment of rent accruing during the first year of the lease, where the tenant has been dispossessed for non-payment of rent and there is no evidence to show that the parties had any other or different intention than expressed in the aforesaid quoted provision in the receipt.</p> <p>Clarke, P. J., dissented.</p>

<p>Guaranty and suretyship — building contract — when surety for faithful performance of building contract not released by acceptance by owner of orders to subcontractors payable out of installment to become due — waiver of default as to time of completion — payments prior to notice by owner that it would complete building cannot be recovered as part of cost of completion.</p> <p>The acceptance by an owner of real estate of orders given to subcontractors and payment thereof out of an installment before due, does not constitute an advance payment, but is in effect a loan for the contractor upon the security of the future installment, and does not release the surety, because the acceptance of said orders did not vary the contract nor injuriously affect said surety.</p> <p>Default as to time of completion of a building contract is waived where the contractor continues the work and the owner makes payments under the terms of the contract.</p> <p>Payments for materials, made before an owner of real estate gave notice that it would complete a building contract, cannot be recovered as a part of the cost of completion under a provision in the contract that if sufficient materials are not on the premises the owner may purchase the same and hold the contractor therefor, after three days’ notice.</p>

Appeal by the plaintiff, Mutual Thread 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 13th day of March, 1919, denying its motion to punish the defendant Morris A. Dubroff for contempt of court.

Appeal by the City of New York 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 Queens on the 7th day of March, 1917, as confirms the final separate report as to awards for damage made by the commissioners of estimate for damage parcels numbered 93, 94, 103, 104, 106, 122, 123, 126, 127, 135, 136, 137, 138, 139, 140, 146, 147, 148, 151, 152, 155, 156, 157, 158, 159, 160, 162, 163A,…

<p>Street railway — person entering car to pay fare for others a licensee and not a trespasser — implied authority to permit persons not passengers to enter public conveyances — duty of street railway company to refrain from affirmative act of negligence that may injure licensee upon car — starting of car with jerk, with knowledge that it was slowing down to enable licensee to alight.</p> <p>Where a person enters a street car for the mere purpose of paying the fare of others and without any intention of becoming a passenger, he is a licensee and not a trespasser.</p> <p>The authority to determine when persons not passengers may enter public conveyances is impliedly conferred upon the agent in charge.</p> <p>When employees of a conveyance operated by common carriers permit the presence on the conveyance of persons who have not paid their fares as passengers, such permission relieves such persons from the imputation of being -wrongful intruders or trespassers.</p> <p>While the owner of premises does not owe to a licensee the duty of using ordinary care that the premises shall be in a safe condition, he does owe the duty of refraining from any affirmative act of negligence that may endanger the licensee.</p> <p>Where a licensee upon a street car requests the conductor to stop at the next crossing, and the latter signals the motorman to do so, and said licensee goes upon the step of the back platform, the act of the company’s employees in suddenly starting the ear forward with a jerk throwing said licensee to the street, when with their knowledge the car was slowing down for the purpose of enabling the licensee to alight, is an affirmative act of negligence and a violation of the company’s duty.</p>

Appeal by the defendants, Rudolph P. Miller and others, constituting the board of appeals, and by Albany Heights Realty Company, from a final 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 21st day of June, 1917, sustaining a writ of certiorari and annulling the proceedings and determination referred to in said order.

Appeal by the defendants, Walter Blair and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of August, 1918, upon the decision of the court after a trial at the New York Special Term adjudging a certain agreement to be void and decreeing that it be delivered up for cancellation and that a certain judgment entered on confession be decreed to be in full force and effect.

<p>Appeal by the plaintiff, Marie G. Darmstadt, from a determination and order of the Appellate Term of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of July, 1918, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, in plaintiff’s favor and dismissing the complaint.</p>

<p>Pleading — denial of legal conclusion drawn from facts insufficient — practice — motion for direction of verdict before any testimony has been given —■ appeal —■ irregular practice ignored — railroads — liability of street railroad company for failure to repair pavement between and outside of its tracks after excavation for construction of sewer and repavement by city — action by city against railroad company to recover cost of repavement — allegations not constituting defense — when courts will review action of local authorities in directing railroad company to repair pavement between and outside of tracks.</p> <p>A denial of the legal conclusions drawn from the facts alleged in the complaint is insufficient.</p> <p>It is irregular practice to move for the direction of a verdict after one juror has been sworn and placed in the jury box but before any testimony has been given. The proper practice under such circumstances is to move for judgment on the pleadings.</p> <p>Where such an irregularity is not urged on appeal by the, defendant it may be ignored.</p> <p>Where after a city excavated a portion of a street for the purpose of constructing a sewer and compelled a street surface railroad company to remove its tracks, the pavement was restored by the city or its contractors and thereafter the city, after notifying the railroad company of. defects in the pavement and requesting it to repave, did the work itself, it may, under section 178 of the Railroad Law, recover for the fair and reasonable cost of the work.</p> <p>In an action by the city against the railroad company to recover for the cost of repaving the street, allegations that the pavement became out of repair because it was replaced before the subsurface condition of the street had become stable or normal, that the repaving thereof is part of the permanent repairing following the construction of the sewer, and that it was a part of a public improvement to which the defendant was not obligated to contribute, do not constitute a defense.</p> <p>The supervision over the pavements and the authority to decide when the railroad company should make repairs is vested by statute in the local authorities and the courts should only review this action when fraud or an abuse of discretion is shown.</p> <p>Smith and Philbin, JJ., dissented.</p>

<p>Fraud — action for false and fraudulent representations — complaint — essential elements of action — remedies of party induced to execute contract by false and fraudulent representations — measure of damages — erroneous instructions to jury as to damages.</p> <p>Complaint held to state a cause of action to recover damages for false and fraudulent representations.</p> <p>The essential elements of such an action are representation, falsity, scienter, deception and injury.</p> <p>A contract induced by false and fraudulent representations is not void, but voidable. On discovery of the fraud the defrauded party has the election of several remedies: (1) He may rescind the contract by promptly tendering back all that he has received under it. He may then bring an action at law upon the rescission' to recover back what he has paid or (2) defend an action brought against him on the contract, setting forth the fraud and rescission as a defense, (3) He may bring an action in equity for rescission, the tender may be made in the complaint and must be kept good at the trial, and the court will adjust the relief as equity requires upon the facts established. (4) He may affirm the. contract and sue for his damages. (5) If sued upon the contract, he may counterclaim his damages.</p> <p>A contract may be rescinded for a mistake or innocent misrepresentation of a material fact. But an action for damages will only lie where the representation upon which it is based is shown not only to have been false and material, or not knowing whether it was true or false and not caring what the fact might be, it was made recklessly, paying no heed to the injury which might ensue.</p> <p>The measure of damages, where the defrauded party affirms the contract, according to the general rule, is the difference in value of the article received as it is, and what it fraudulently was represented to be.</p> <p>In an action to recover damages for false and fraudulent representations by which the plaintiff was induced to enter into an agreement and transfer his insurance business and agencies, held, that a judgment in favor of the plaintiff should be reversed and a new trial granted, because of the failure of the court to properly instruct the jury as to the measure of damages.</p>

Appeal by the defendant, Isadore Goodheim, from a judgment of the Court of General Sessions of the Peace in and for the Comity of New York, Part III, rendered against him on the 24th day of April, 1917, convicting him of the crime of perjury.

<p>Trial — jury trial not waived by noticing cause at Special Term — jurisdiction of Special Term to subsequently send such cause to Trial Term — action to determine claim to real property — allegation of equitable defense and request for equitable relief in connection with defense of legal ownership not a waiver of right to - jury trial.</p> <p>The noticing by both parties of a cause for trial at a Special Term as an equity action does not constitute an absolute waiver by the defendant of her right to a jury trial and the Special Term has authority in its discretion, even if there was such waiver, to send the ease to a Trial Term.</p> <p>In an action to determine a claim to real property, the defendant by coupling with the defense that she is the legal owner of said property an equitable defense and asking for equitable relief, does not deprive herself of the right to a jury trial.</p> <p>Foote, J., dissented, with opinion.</p>

<p>Appeal by the plaintiff, Arkell & Douglas, 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 21st day of June, 1917, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of June, 1917, denying plaintiff’s motion for a new trial made upon the ■ minutes.</p>

Appeal by the plaintiff, Meyer Herman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of November, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Ranken Realty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of January, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, F. C. Linde Company, 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 13th day of December, 1918, affirming a judgment of the City Court of the City of New York and also from an order of said court denying defendant’s motion for a new trial.

Appeal by the plaintiff, John J. Creem Company, 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 3d day of May, 1918, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case, and also from the order entered in said clerk’s office on or about the 16th day of April, 1918, pursuant to which the judgment was…

Appeal by the plaintiff, Derma-Viva Company, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 3d day of June, 1918, upon the decision of the court dismissing the complaint after a trial before the court, a jury having been waived.

Appeal by the plaintiff, Florence Hynes, as administratrix, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 11th day of June, 1917, granting defendant’s motion to set aside the verdict of a jury in plaintiff’s favor for $8,000, and granting a new trial.

<p>Appeal by the plaintiff, John H. Scheier, 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 12th day of December, 1917, dismissing the amended complaint upon the decision of the court after a trial at the New York Special Term.</p> <p>An appeal is also taken, as stated in the notice of appeal, from the court’s decision.</p>

Appeal by' the defendants, John F. Hylan and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of February, 1919, granting plaintiff’s motion for an injunction pendente lite.

Appeal by John B. Lord, claimant, from an order of the County Court of Kings county, entered in the office of the clerk of said county on the 4th day of February, 1919, as resettled by an order entered on the 17th day of February, 1919, denying for want of power an application for the payment to the appellant of certain sums expended by him in the defense of certain actions which he alleges were beneficial to the incompetent.

<p>Appeal by Lillia M. Bearns from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on or about the 20th day of January, 1919, settling their accounts herein and granting to the trustees certain commissions consisting, among other items, of one-half commissions upon the realty constituting part of the corpus of the trust estate and of full commissions upon the income from said realty.</p>

Appeal by the plaintiff, Christina Carlin, and by the defendants Elizabeth Morrison and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Kings on the 26th day of December, 1918, upon the decision of the court after a trial at the Kings County Special Term. The judgment was rendered in an action to partition certain property situated on Greenpoint avenue, Brooklyn.

Appeal by the defendant, Stuard Hirschman, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 27th day of February, 1919, as resettled by an order entered in said clerk’s office on the 10th day of March, 1919, modifying a judgment entered in said clerk’s office on the 21st day of March, 1916.

<p>Tender — title to moneys tendered by plaintiff prior to commencement of action of replevin and paid into court— Code Civil Procedure, section 731 et-seq., not applicable.</p> <p>Where, prior to the commencement of an action in replevin to recover the possession of merchandise stored with the defendant, the plaintiff tenders what he considers reasonable charges, and procures an order for the payment of said sum into court, a common-law tender becomes effectual and complete, and the money passes to and becomes the absolute property of defendant, and its application for an order directing the payment to it of said sum should be granted.</p> <p>Sections 731 et seq. of the Code of Civil Procedure do not apply to such an application, for the action was not to recover a sum of money only, nor for a casual or involuntary personal injury, nor for a like injury to property. Furthermore, said sections apply only where the tender is made after action brought.</p>

<p>Appeal by the defendants, Sanford J. Wise and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th 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 defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ernst Zobel Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of December,*1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of January, 1919, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Lewis Butensky and another, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of December, 1918, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 12th day of December, 1918,. denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Harry Greenberg, from an award of the State Industrial Commission, entered in the office of the clerk of said Commission on the 1st day of July, 1918, and also from the findings of said Commission entered in said clerk’s office on the 11th day of December, 1918.</p> <p>A question is certified by the State Industrial Commission to the Appellate Division, j</p>

<p>Negligence — contributory negligence — burden of proof — facts constituting contributory negligence by one falling into freight elevator shaft — failure to guard entrance to freight elevator shaft as obviating necessity for precaution.</p> <p>A plaintiff, in an action to recover damages caused by negligence must, in order to recover, show not only the negligence of the defendant, but that he himself was free from contributory negligence.</p> <p>In an action to recover damages for injuries received by falling into a freight elevator shaft the plaintiff fails to establish his freedom from contributory negligence where the evidence adduced at the trial on his behalf shows that he had just been employed to work in a stable and was directed to go to the rear of the stable to ride up on the elevator, that the place where the elevator was situated was somewhat dark, but that, according to his own testimony," there was light enough so that he could see the walls of the shaft and electric light fixtures nearby, and that he walked straight ahead without looking down at the floor to see where the floor ended or whether the elevator was in place before he stepped into the shaft.</p> <p>It seems, that the rule applicable to passenger elevators that where the door to the shaft is left open an invitation to enter may be implied, does not apply to freight elevators and that the failure to have the entrance closed or guarded by a chain or other contrivance does not constitute an invitation to enter which would put the plaintiff off his guard.</p> <p>Merrell, J., dissented.</p>

<p>Sale — contract — compliance by plaintiff with terms as condition precedent to recovery for breach ■—■ effect of sale by defendant of initial delivery of goods at profit — verdict against weight of evidence — instructions to jury.</p> <p>In an action to recover damages for a breach of contract the plaintiff, to succeed, must show a full performance on his part of all the conditions of the contract, where there is no allegation of a waiver of any condition.</p> <p>Therefore, where a contract called for the delivery of “ dipping ” cherries, a grade well known to the trade, and which were stipulated to run 900 to 1,000 to the gallon, the plaintiff cannot recover for a breach on the part of the defendant on proof of delivery of cherries running from 100 to 150 and upwards more than the stipulated amount to the gallon.</p> <p>The fact that the defendant was able to sell the initial shipment of cherries, which did not conform to the grade purchased, at a price that enabled him to make a profit does not relieve the plaintiff from showing a strict compliance with the terms of the contract.</p> <p>An examination of the evidence was held to show that the verdict of the jury to the effect that the plaintiff delivered “ dipping ” cherries according to its contract was clearly against the weight of the evidence.</p> <p>A request by the defendant to the court to charge that unless the jury found that the initial shipment complied in all respects with the contract of sale they must find for the defendant, should have been given, and it was error for the court to charge that a compliance generally with the contract was sufficient.</p>

<p>Pleading — complaint — action for money had and received — sufficiency of allegation of promise to pay.</p> <p>A complaint substantially the same in its form and allegations with the old common or general count in assumpsit is in accordance with the fundamental principles of Code pleading and is good.</p> <p>Accordingly a complaint alleging that the defendant became indebted to the plaintiff in a stated sum for money had and received by the defendant to the use of the plaintiff and that no part of said sum has been paid although payment was duly demanded before the commencement of the action, states a good cause of action.</p> <p>While a mere allegation of indebtedness without an allegation of a promise to pay or facts from which such a promise can be inferred is not sufficient, the expression “ to the use of the plaintiff ” has a well-settled legal significance, and contains the implication of moneys held in a sense in trust which in equity and good conscience the defendant was required to pay to the plaintiff.</p> <p>Merrell, J., dissented.</p>

Appeal by the defendant, Mary Bernstein, 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 March, 1919, appointing a referee herein. .

Appeal by the defendant, The Rector, Churchwardens and Vestrymen of Trinity Church in the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of New York on the 16th day of July, 1918, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 25th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Fannie Deutsch, 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 a motion by Theodore K. McCarthy, as receiver in the action, requiring the appellant, Fannie Deutsch, to pay to the receiver the sum of $400 which the appellant, Fannie Deutsch, had theretofore received from the tenants of the mortgaged premises, as security for the performance of the covenants in the lease, which were the subject of the action.</p>

<p>Principal and agent — duty of agent to principal — right of discharged agent to compensation — effect on right where agent commits breach of duty — forfeiture of earned commissions by violation of contract — trial — submission of case to jury where different conclusions deducible from evidence.</p> <p>An agent owes the duty of utmost good faith to his principal.</p> <p>Ordinarily where a servant is discharged or leaves the employ at the end of his period of employment, he is entitled to all compensation that had been earned prior thereto, and though he may have been rightfully discharged, he still has the right to recover for such compensation.</p> <p>Where an agent is employed to solicit trade, any act of his while so employed tending to divert customers from his employer to a rival in business for his own advantage is a gross breach of his duty towards his employer.</p> <p>In such a case the agent is not entitled to compensation.</p> <p>In most eases this rule is applied to the particular transaction out of which the compensation arose.</p> <p>But the forfeiture of commissions already earned should be enforced where the violation of the contract of employment was found to be willful, and with the intention of securing personal benefit at the expense of the employer.</p> <p>Where reasonable minds might draw different conclusions from the evidence the court should submit the case to the jury and not dispose of it as a question of law.</p>

Appeal by the defendant, Patrick Cooney, from a judgment of the County Court of Kings county, rendered against him on the 6th day of September, 1917, convicting him of the crimes of burglary in the second degree, robbery in the second degree, grand larceny in the first degree and assault in the second degree as a second offense.

<p>Corporations — franchise of railroad corporation to construct and maintain subway with exits in city of New York — liability for cost of reconstruction of subway exits caused by subsequent widening of streets by city — police power.</p> <p>Where a railroad company, holding a franchise granted by the State, acting through the board of rapid transit railroad commissioners under the authority of section 32 of chapter 4 of the Laws of 1891, as amended, to construct and operate a subway and exits with their kiosks located on the sidewalks between the curb line and the building line of certain streets, constructed said subway and exits in accordance with plans approved by the rapid transit commissioners and the city authorities, and thereafter the city, with knowledge of said construction, widened the street and narrowed the sidewalk necessitating a change in the subway entrances, it is liable for the expense of the relocation and reconstruction of said exits with their kiosks, under a contract made by it with the railroad company under which it agreed to pay the expense in the first instance, and the final iability should be determined by submitting the question to the Appellate Division.</p> <p>The issuance of the certificate to the railroad company under statutory authority by the board of rapid transit commissioners, the consent of the city authorities, the acceptance by the company and the performance of all conditions precedent, constituted a contract and conferred upon said company an irrevocable franchise, and it thereby acquired property rights held in perpetuity.</p> <p>Said franchise was granted by the State in the exerc'se of its sovereign power.</p> <p>The police power under which the State may affect franchise rights is an attribute of sovereignty to be exercised only by it or its agents to which such power has been delegated</p> <p>No delegation of police power sufficient to authorize the city to compel the relocation of the subway exits at the expense of the railroad company is shown in this case.</p>

Appeal by the defendants, Robert O’Brien and Ann O’Brien, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of June, 1917, upon the decision of the court after a trial at the Westchester Special Term.

<p>Appeal by the defendant, The Pullman Company, from an award of the State Industrial Commission, made on the 4th day of October, 1918, confirming a prior award, and also from a modified award made by the Commission on the 25th day of October, 1918.</p>

Appeal by the plaintiff, Jacob Brender, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Sullivan on the 31st day of October, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant in each case, The State of New York, from an order and determination óf the Court of Claims in favor of the claimants in each proceeding, entered in the office of the clerk of said court on the 9th day of May, 1918, awarding in the first case the sum of $650 and in the second case the sum of $200.

<p>Appeal by the plaintiff, Alice E. Gould, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 19th day of January, 1918, upon the decision of the court dismissing the complaint after a trial before the court, a jury having been waived.</p>

<p>Life insurance — right of creditors of husband to insurance upon his life bought for benefit of wife by premiums in excess of $500 — gross premiums less dividends as basis of determining amount of premiums — deduction of premiums necessary to carry amount loaned by company to insured — policies chargeable with creditor’s claim.</p> <p>In determining whether more than $500 was paid in life insurance premiums within the meaning of section 52 of the Domestic Relations Law, giving creditors of a husband the right to share in any insurance upon his life for the benefit of his wife purchased by premiums beyond that amount, the net premium is to be taken as a basis; that is the gross premium less any yearly dividends returned by the company.</p> <p>In determining the right of creditors under said section the amount of loans made to the insured by the insurer are to be deducted from the face of the policies and the amount of premium necessary to carry the insurance to cover said loans is not to be considered a part of the $500; such loans are carried for the benefit of the insured and not for his wife.</p> <p>A creditor is entitled to recover insurance bought by premiums in excess of the statutory $500 out of the policies in the inverse order of their issue.</p> <p>But where justice requires it this rule is not to be followed. And so, where the later policies have been paid to the widow and it does not appear that she will be able to pay a judgment against her for moneys which she has received belonging to the creditor, the court will direct that the judgment shall be a lien on annuities to be paid by the insurance company from time to time.</p>

IF Appeal by the defendants, Mary E. Nellis and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 27th day of February, 1919, upon the decision of the court after a trial before the court without a jury, and also from an order entered in said clerk’s office on or about the 7th day of April, 1917, resettling a prior order.

Appeal by the defendant, The W. W. Dutton Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of October, 1918, upon the verdict of a jury for $700, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Alex. P. Shorall and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 21st day of November, 1918, upon the decision of the court after a trial before the court without a jury.

Appeal by the defendant, Jo.hn M. Turner, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of August, 1917, affirming a judgment of the City Court of Albany, and also an appeal is taken from an order entered in said clerk’s office denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William G. McAdoo, as Director General of Railroads, from aTjudgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 9th day of December, 1918, upon the verdict of a jury for $12,500, and also from.an order entered in said clerk’s office on the 17th day of February, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John B. Fiske, as sheriff, from a judgment of the County Court of Clinton county in favor of the plaintiff, entered in the office of the clerk of said county on the 16th day of May, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 7th day of August, 1918, directed to Harry M. Cooke, as acting mayor, and others, commanding them to certify and return to the office of the clerk of the county of Clinton all and singular their proceedings had in suspending the relator from office as a civil service patrolman for the period of one year.

Appeal by the defendants, Hudson View Construction Company and another, from an award of the State Industrial Commission, made and entered in the New York city office of said Commission on the 16th day of January, 1919, and also from a further award and order made and entered in said clerk’s office on the 7th day of March, 1919, affirming the prior award.

<p>Workmen’s Compensation Law — claim for death of driver of lumber 'sleigh — accident arising out of and in the course of employment — evidence not overcoming presumption created by section 21 — failure to give notice of death — notice to or knowledge of employer.</p> <p>A driver of a lumber sleigh claimed that his injuries were caused as follows: “ I was .lifting rear end of sleigh I was drawing lumber on. Runners stuck and suddenly gave way, throwing me off my balance and causing me to fall to my knees with weight of sleigh on me. * * * My left side was hurt above the hip so that I could not lift left arm or use left shoulder, and I could not breathe freely or without severe pain in that side.” There was no external sign of injury. There was evidence that the remote cause of the death of said driver was the injury to his side and that the immediate cause was lobar pneumonia and traumatic gangrene of the lungs.</p> <p>Held, that the evidence was sufficient to establish an accident arising out of and in the course of employment;</p> <p>That an award was amply corroborated by facts, circumstances and evidence other than the declarations of the deceased, and that no substantial evidence was offered to overcome the presumption created by section 21 of the Workmen’s Compensation Law.</p> <p>The employer and insurance carrier were not prejudiced by the failure of the widow to give notice of death.</p> <p>Notice to or knowledge of the employer is notice to and knowledge of the carrier.</p>

Appeal by the plaintiff, Mary W. Robinson, from a judgment of the County Court of Broome county, entered in the office of the clerk of said county on the 24th day of February, 1919, reversing a judgment of the City Court of Binghamton in plaintiff’s favor, and also from the order entered in said clerk’s office on the 10th day of February, 1919, pursuant to which the judgment of reversal was entered.

<p>Appeal by the defendant, United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 7th day of December, 1918, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Town — compensation of health officer — reservation Indians not enumerated inhabitants within meaning of section 21 of Public Health Law.</p> <p>Indians residing upon a State reservation are not enumerated inhabitants of a town within the meaning of section 21 of the Public Health Law, providing that the compensation of a health officer “ shall not be less than the equivalent of ten cents per annum per inhabitant of the * * * town * * * according to the latest Federal or State enumeration.”</p>

Appeal by the plaintiff, Robert T. Townsend, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 21st day of March, 1919, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Appeal by the defendants, Isbell-Porter Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 1st day of November, 1918.</p>

Appeal by the defendants, Metz Brothers Company and another, from an award and order of the State Industrial Commission, entered in the New York city office of said Commission on the 8th day of November, 1918, and also from a further award and order entered therein on the 20th day of January, 1919.

Appeal by the defendants, Retsof Mining Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 28th day of January, 1919, and also from an award entered therein on the 4th day of October, 1918.

Appeal by the defendants, West End Paper Company and another, from an award of the State Industrial Commission, entered in the New York city office of said Commission on the 27th day of August, 1918, and also from so much of the action of the Commission on December 2, 1918, as confirmed the award.

Appeal by the defendants, E. W. Bliss Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 27th day of January, 1919.

<p>Cross-appeals by the plaintiff, Sherman A. Genung, and by the defendant, Ross M. Turner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 11th day of January, 1918, upon the verdict of a jury for $8,000.</p> <p>The plaintiff appeals on the ground that the verdict was inadequate. The plaintiff further appeals from so much of an order, entered in said clerk’s office on the 17th day of January, 1918, as denies his motion for a new trial, and the defendant appeals from so much of said order as denies his motion for the same relief.</p>

<p>Crime — driving motor vehicle while intoxicated — evidence — sufficiency — driving automobile recklessly as establishing intoxication —- admissibility of evidence of words or acts of man while alleged to have been intoxicated — intoxication, within meaning of section 290 of Highway Law, defined — common meaning of intoxication — charge held to be erroneous on question of intoxication.</p> <p>Intoxication cannot legitimately be inferred solely from the fact that one alleged to have been intoxicated drove an automobile recklessly on the highway.</p> <p>Evidence as to what a man did or said, during the period when he was alleged to have been intoxicated, is admissible for the purpose of establishing that he was intoxicated.</p> <p>A man is intoxicated within the meaning of subdivision 3, section 290 of the Highway Law, providing that whoever operates a motor vehicle while in an intoxicated condition shall be guilty of a misdemeanor, who is affected by alcoholic beverage to such an extent as to impair his judgment or his ability to operate a motor vehicle.</p> <p>Intoxication in a common sense and conservative way implies undue or abnormal excitation of the passions or feelings or the impairment of the capacity to think and act correctly and efficiently, and suggests the loss of the normal control of one’s faculties.</p> <p>An instruction by the court in a criminal case, wherein the defendant is charged with driving an automobile while in an intoxicated condition, is erroneous, if it permits the jury to find the defendant to have been intoxicated if he was “ affected by drink ” to any extent, even though his judgment and mental and physical faculties were entirely unimpaired and his ability to operate the automobile entirely unaffected.</p> <p>John M. Kellogg, P. J., dissented.</p>

Appeal by the defendant, Elmer Terbush, from a judgment of the Supreme Court io favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 3d day of November, 1917, upon the decision of the court after a trial before the court without a jury. This is an action for goods sold and delivered between October 1, 1912, and September 1, 1914.

<p>Appeal by the defendants, Edwin W. Joslin 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 18th day of February, 1919, granting a peremptory writ of mandamus herein.</p> <p>Under chapter 428 of the Laws of 1914 the relator made a contract with the Watervliet water board for the construction of some portion of the water works system of the city of Watervliet.</p> <p>The said contract was completed in November, 1917. The work was accepted by the city and the water works system is being used.</p> <p>The completion of the contract by the relator was delayed many months beyond the period fixed for such completion and according to the terms of the contract the agreed liquidated damages by reason of such delay payable to the city of Watervliet was fifty dollars per day.</p> <p>In December, 1917, the water board passed a resolution that fifty dollars for each day that the contractor was in default in the completion of the work be charged against the contractor according to the provisions of the contract “ and that said amount be deducted from any sums which may be due to the said contractor and in cáse the amount due said contractor shall be insufficient to meet the amount of said damages ” that the city be reimbursed for the difference. It does not appear that the relator had notice of this resolution.</p> <p>The contract provided that the engineers of the water board should prepare monthly estimates and certificates for work done and material furnished and should prepare “ the final estimate and engineers’ certificate for said Water Board upon the completion of said contract and the final acceptance of the work.” In May, 1918, the engineers of the water board prepared what is spoken of as a “ final estimate ” in which numerous items and charges in favor of the relator and also of the city were included which estimate showed a balance in favor of the relator of $12,335.55. This estimate, however, contained the statement that it did not include “ claims that may be presented by Watervliet Water Board direct.” It did not contain any reference to the damages due the city because of delay in the completion of the contract.</p> <p>In July, 1918, the water board certified to the common council various amounts necessary for the payment Of the construction of the water works system including the said balance in favor of the relator in the estimate of the engineers of the water board. The common council proceeded to bond the city for $175,000, first procuring the assent of the taxpayers at a taxpayers’ election duly called on July 29, 1918. At such election the ballots contained the various items making up the said sum of $175,000 and included in such items was the following: “ Amount due Fidelity & Casualty pursuant to final estimate $12,335.55.” This item, however, was not voted on separately but was included in a total amount of $130,000 which was adopted by the voters as a single proposition. The proceeds of the bonds were paid, not to the treasurer of the water board as required by section 8 of chapter 428 of the Laws of 1914 (as amd. by Laws of 1915, chap. 131), but to the city chamberlain because the charter of the city of Watervliet was revised by chapter 462 of the Laws of 1918, which became effective May 6, 1918, and the revised charter (§§ 95, 96) made the city chamberlain the custodian of such proceeds.</p> <p>In December, 1918, the water board adopted a resolution demanding of the relator the balance claimed to be due the city for its damages for delay in the fulfillment of the contract over and above the said balance of $12,335.55 in favor of the relator according to said estimate.</p> <p>The order appealed from requires the mayor, commissioner of accounts and chamberlain of the city to pay the relator the said sum of $12,335.55.</p>

Appeal by the defendants, Edgar Clark and another, from a judgment of the County Court of Clinton county, entered in the office of the clerk of said county on the 11th day of March, 1919, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Tompkins on the 4th day of October, 1917, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 26th day of September, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Percy A. Polmatier, as administrator c. t. a., from a judgment of the County Court of Chenango county, entered in the office of the clerk of said county on the 24th day of October, 1918, affirming a judgment of the City Court of Norwich in plaintiff’s favor, and also from an order entered in said clerk’s office on or about the same day affirming said City Court judgment.

<p>Criminal contempt — misconduct of juror in trial of indictment — competency of testimony of fellow-jurors — nature of verdict in criminal prosecution — violation of secrecy of jury room — authority of decisions of United States Supreme Court in absence of State decisions — violation of Civil Rights Law — proof of contempt — false answers by juror — false answers not under oath — definition of contempt in section 750 of Judiciary Law—waiver of defects in proceedings — appeal — certiorari.</p> <p>Relator had been drawn as a petit juror to try an indictment against persons charged with keeping a “ cafe ” as a disorderly house and a public nuisance. He was informed by the district attorney that the prosecution sought an indifferent jury of whom none was acquainted with the defendants or the reputation of their place of business. In response to specific questions put to him, he replied that he did not know the defendants, or either of them, and that he knew nothing of their place. He was sworn as a juror, sat throughout the trial and took part in the verdict. After the case had been submitted and the jury sent to their room, relator stated to his fellow-jurymen that he knew defendants, and their place, that he had visited it several times, and that in his opinion it was all right. After an acquittal on the indictment, the court before whom it was tried heard evidence and found relator guilty of criminal contempt of court.</p> <p>Held, that an appeal from such determination should be dismissed.</p> <p>Petit jurors who sat in the trial of an indictment are not incompetent as witnesses on proceedings against one of their number for criminal contempt.</p> <p>A verdict of acquittal in a criminal prosecution is a finality, and a proceeding for contempt against one of the jurors who rendered the verdict is not an attack thereon and does not render the testimony of the jurymen incompetent on the question of the juror’s guilt or innocence.</p> <p>The secrecy of the jury room is not violated by allowing jurors who sat in the trial of an indictment to testify in contempt proceedings as to the misconduct of one of their number in giving false answers as to his qualifications, which amounted to a violation of his oath, where said proceedings in no way relate to the verdict.</p> <p>In the absence of decisions of the State courts, eases of the United States Supreme Court are of the highest persuasive authority and even a gratis dictum therein is entitled to the greatest respect. This is especially true when the question presented is one of general policy.</p> <p>It seems, that neither reason nor policy should extend the protection of sanctity of the jury room so as to shield even the briber or the bully, provided he attempted his work during the period of deliberation.</p> <p>Section 14 of the Civil Rights Law, providing that a juror shall not be questioned and is not subject to an action, or other civil or criminal liability for a verdict rendered by him, etc., except by indictment, is not violated by questioning a juror in proceedings for contempt for misconduct and violation of his oath, and not for the verdict rendered.</p> <p>A false statement fey a petit juror in the trial of an indictment in the presence of the court, that he did not know the defendants or whether their place was of ill repute, together with the testimony of fellow-jurymen as to his contradictory statements, and assertion of acquaintance with the defendants and the reputation of their place, constitute competent proof of criminal contempt.</p> <p>In proceedings for criminal contempt of a petit juror who sat in the trial of an indictment, and who stated to the district attorney that he did not know the defendants or the reputation of their place, but who later stated in the jury room that he knew them and that their place was all right, the misconduct of the juror was complete whether the statements were false or true.</p> <p>A juror sitting in the trial of an indictment may not state to the jury his personal knowledge as to the very issue on trial, and declare therefrom his belief in the innocence of the defendant.</p> <p>Section 750 of the Judiciary Law, defining criminal contempt, does not purport to define or describe the specific acts which shall constitute criminal contempt.</p> <p>False answers given by a juror to the district attorney concerning his acquaintance with the defendants and knowledge of the reputation of their place, made in the presence of the court, were within the statutory words “ tending * * * to impair the respect due to its authority.”</p> <p>A juror who informs the district attorney in the presence of the court that he does not know the defendants, or the reputation of their place, but later in the jury room admits acquaintance "with the defendants and asserts that he has visited their place and that it was ah light, is guilty of contemptuous behavior towards the court.</p> <p>That a petit juror was not sworn when he gave false answers as to his qualifications to sit in the trial of an indictment is immaterial.</p> <p>Where in proceedings for criminal contempt the eontemnor appears and submits to a hearing on the merits, he thereby waives any defects in the preliminary process, and confers jurisdiction of the person.</p> <p>An appeal from an order declaring a criminal contempt committed in a criminal case does not lie. The proper remedy is by certiorari.</p> <p>Putnam and Kelly, JJ., dissented, with opinions.</p>

Appeal by the plaintiff, Maurice Bamberger, 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 May, 1919, denying his motion for an order modifying and amending the judgment of foreclosure and sale herein.

Appeal by the defendant, James H. Dunn, 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 April, 1919, denying defendant’s motion for leave to serve and file an amended answer to the second amended complaint.

<p>Appeal by the defendants, Phoenix Insurance Company 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 16th day of January, 1918, upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the defendant, George T. Rogers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of January, 1918, upon the decision of the court after a trial at the New York Special Term.

<p>Decedent’s estate — accrued alimony as preferred claim.</p> <p>Accrued alimony is in the nature of a judgment debt and a claim therefor made by a widow against the estate of her deceased husband is entitled to the same preference as moneys due under any other decree.</p>

<p>Negligence — tenant falling on stairs — verdict against weight of evidence — admission of evidence to show stairs were fire trap when issue involved was failure to keep in repair.</p> <p>In an action to recover for personal injuries sustained by the plaintiff because of the negligent maintenance of a stairway in premises of the defendant in which plaintiff’s intestate was a tenant, the evidence by the plaintiff tended to show that the carpets and the rubber tread were badly worn and tom, and the rubbers loose, and that they had remained so for several months prior to the accident. Opposed to this evidence was testimony that while conditions described had existed, repairs had been made sometime prior to the accident, and that the carpet had been relaid and new rubber treads and galvanized nosings put on. These facts were also testified to by the janitor, his wife, two of the tenants, the manager of the company doing the repairing and the man who did the work.</p> <p>Held, that a verdict in favor of the plaintiff was against the weight of the evidence on the issue of the defendant’s negligence.</p> <p>It was prejudicial error demanding a reversal of the judgment to permit, over objection, testimony that “ the stairs were nothing but a fire trap,” as the charge of negligence was not addressed to the maintenance of stairs so constructed as to form a fire trap, but only to the state of repair of the carpet and mbber treads on the stairs.</p>

Appeal by Phoenix and Third National Bank of Lexington, Kentucky, 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 March, 1919, denying its motion to vacate a warrant of attachment secured by the plaintiff against the defendant Kelly Storage and Distributing Company and to set aside an attempted levy thereunder. . _ __________

Appeal by the plaintiff, Max Markowitz, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of New York on the 27th day of June, 1918, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 26th day of July, 1918, denying his motion for a new trial made upon the minutes.

<p>Taxes — assessment—■ certiorari to review—assessment in New York city — construction of section 290 of Tax Law and section 906 of Greater New York charter — necessity for conforming strictly to statute — review on ground of inequality — necessity for stating specific instances in petition — effect where instances stated in original application — amendment of petition to show instances after time within which petition for writ could have been made.</p> <p>There is no inconsistency between the provisions of section 290 of the Tax Law and section 906 of the Greater New York charter relating to a .review by certiorari of the final determination of the board of taxes and assessments; they relate to the same subject-matter and must be read together and their requirements met.</p> <p>The whole proceeding for a review of an assessment is statutory and technical, and in order to avail of the statute the person aggrieved must conform to its requirements and manner of procedure.</p> <p>A petition for a writ of certiorari under section 906 of the Greater New York charter to review an assessment on the ground of inequality, must, as required by the statute, specify the instances in which such inequality exists.</p> <p>The fact that specific instances of inequality were alleged at great length in the original application to the commissioners and could have been considered by them, does not excuse the omission to make the specifications in the petition for the writ.</p> <p>It is not enough that general allegations, if proved, might show the inequality; the particulars must be given, to the end that they may, if possible, carry conviction as to the rights of the petitioner and thus avoid needless litigation by the commissioners.</p> <p>The omission to make the specifications required by statute constitutes a jurisdictional defect.</p> <p>An amendment to a petition for a writ of certiorari may be granted after the time within which the statute allows a certiorari proceeding to be instituted only where it does not involve the setting up of a jurisdictional fact.</p> <p>Therefore, a petition for a writ of certiorari under section 906 of the Greater New York charter to correct an assessment cannot be amended after the first day of July, the time limited by the statute for the commencement of the original proceeding, for the purpose of specifying instances in which inequality exists.</p>

<p>Negligence — injury to passenger from collision of automobiles — verdict not against weight of evidence — evidence — failure of defendant to call chauffeur — full credit given to testimony of plaintiff’s witness as to accident — position of automobiles after accident as not conclusive of place of collision — tort action — verdict against each defendant for stated amount — entry of verdict for lowest amount — new trial on ground that verdict irregular in form — sending jury back to reform irregular verdict.</p> <p>The plaintiff’s intestate while riding as a guest in the automobile of the defendant G. received injuries resulting in his death by a collision between that automobile and another belonging to the defendant K. and operated by her employee. Only one witness of the accident testified. Defendant did not introduce any evidence and K. did not in any way attempt to excuse the failure to call her chauffeur. The accident occurred at a street intersection and was brought about by K.’s automobile turning from a cross street into the street on which the accident occurred immediately in front of G.’s automobile. The point where the deceased was found and the automobile stopped was some eighty-three feet from the street intersection. The only testimony as to the accident showed that the point of collision was at the street intersection and that both automobiles were going fast and that neither one gave any warning signal.</p> <p>Held, that the failure of the defendant K. to examine her chauffeur entitled the jury to give full credit to testimony on behalf of the plaintiff as to the accident.</p> <p>That testimony plainly warranted the conclusion that K.’s automobile was negligently managed in attempting to turn from a side street into the main one at high speed, without giving any signal and that, too, practically in front of another automobile approaching in the same direction along the street.</p> <p>The naked fact that the automobiles came to a stop and the body of the deceased was found at a point eighty-three feet beyond the intersection is not conclusive that the collision actually happened there, there being no evidence that either driver did anything to stop his car.</p> <p>Accordingly a verdict in favor of the plaintiff was not against the weight of the evidence.</p> <p>In a tort action against several defendants a verdict cannot be rendered against them separately, that is, against one for one amount and against others or another for another amount.</p> <p>A verdict attempting to do that must be treated as a verdict against all such defendants for the smallest amount so found.</p> <p>Accordingly a sealed verdict “ in favor of the plaintiff, against Catherine Kusch and John Gardella for $9,000 or $4,500 each ’’ should be entered as one against both defendants for $4,500.</p> <p>In such a case, where the jury had been discharged prior to the opening of the sealed verdict, the trial court should grant the defendant’s motion for a new trial upon the ground that the verdict was irregular in form, and that the jury had evidently misapprehended their power.</p> <p>Where the jury had not been discharged for the term, at the time of the opening of such sealed verdict, it seems that it would be proper practice for the trial justice to at once advise the jury of the irregularity of the form of their sealed verdict, and of the limitations upon their power in that respect, and send them back to reconsider and reform their verdict.</p>

<p>Railroads — negligence — contract of employment — evidence.</p> <p>In an action against a railroad company for negligence alleged to have resulted in injury to the plaintiff, evidence held to establish that at the time of the accident complained of the plaintiff was not an employee of the defendant, but was an employee of another corporation which was erecting the building in which plaintiff was at work when injured, and that, therefore, a verdict against the defendant is against the weight of the evidence.</p>

Appeal by the plaintiff, Amos D. Bridge’s Sons, Inc., from an order and judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 25th day of February, 1919, and the 13th day of March] 1919, respectively, dismissing its claim upon the ground that claimant, a foreign stock corporation other than a moneyed corporation, had not procured a certificate from the Secretary of State that it had complied with the requirements…

Appeal by the defendant, Horton S. Potter, from a judgment of the. County Court of Schenectady county, entered in the office of the clerk of said county on the 3d day of March, 1916, affirming a judgment of the Justice’s Court, town of Glenville, Schenectady county, and also from an order affirming said judgment which order was entered in said clerk’s office on the same day.

Appeal by the defendants, The Foundation Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 19th day of November, 1918, awarding compensation for injuries sustained in the State of Pennsylvania.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 30th day of December, 1918.

Appeal by the defendants, Crenshaw Engineering Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 1st day of February, 1919.

Appeal by the relator, Charles Finnegan, 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 12th day of May, 1919, denying his application for a writ of prohibition. In 1917 relator had been convicted of disorderly conduct in the City Magistrate’s Court, Eighth District, with a three months’ sentence.

Appeal by the American Tract Society and others, legatees, from a decree of the Surrogate’s Court of the county of Dutchess, entered in the office of said Surrogate’s Court on the 1st day of March, 1918.

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

<p>Disciplinary proceeding instituted by the Richmond County Bar Association.</p>

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

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

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

<p>Motion to the Appellate Division in the first instance for a peremptory writ of mandamus directed to John Y. McAvoy, a justice of the Supreme Court.</p>

Appeal by the defendant, Sigmund Menschel, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of August, 1918, upon the verdict of a jury directed by the court, and also from an order entered in said clerk’s office on the 29th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Queens County Water 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, 1918, upon the verdict of a jury for $5,000, 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>Appeal by the plaintiff, James Hadfield, from an order of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the City Court of the City of New York on the 3d day of May, 1918, reversing a judgment of said City Court, and also reversing the order of said City Court denying defendants’ motion for a new trial.</p> <p>The original City Court judgment was entered upon a verdict in plaintiff’s favor.</p>

Appeal by the defendants, The Texas Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1919, overruling their amended demurrers to the third cause of action set up in the amended complaint.

Appeal by the defendant, Walter E. Ward, 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 May, 1919, denying his motion to compel plaintiff to accept service of his unverified answer, excepting so much of the order as grants him leave to serve a properly verified answer.

Appeal by the defendants, John H. Ranger 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 30th day of January, 1918, denying their motion for judgment on the pleadings consisting of a complaint and the answer thereto.

Appeal by Catherine A. Malcomson 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 March, 1919, appointing a referee “ to take evidence and report with his opinion as to the validity of the assignment of the legacy in question in this accounting.”

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

<p>Insurance —• mutual benefit insurance — increase in rates to establish reserve fund — right of all policyholders to benefit of such reserve — discriminatory rates ■— right to appropriate money due older members to pay junior members in full — reissue of benefit certificate with change of beneficiary as new contract — waiver by company of charge against policy by issuance of new policy.</p> <p>In so far as an increase in assessments made by a mutual benefit insurance company is devoted to the establishment of a reserve fund, it entitles the beneficiaries of all who contributed thereto to resort to that fund for the payment of their death claims.</p> <p>A mutual benefit insurance company cannot require the members who joined prior to a stated date to contribute to a reserve fund solely for the benefit of those who should subsequently join the order.</p> <p>An insurance company or association may make discriminatory rates based on classification of age, physical condition, occupation, or other considerations that directly affect the risk assumed; such discriminations must, however, apply equally to all in the class.</p> <p>After a contract of insurance is made the company or association cannot appropriate a portion of the amount that it had agreed to pay to members who had joined prior to a certain date, in order to enable it to pay in fidl claims arising from the death of those who joined and died subsequent thereto.</p> <p>Where a certificate in a mutual benefit insurance association is returned for the purpose of having the beneficiary changed, and the new certificate issued bears the date of the original certificate with the annotation,</p> <p>“ Reissued, beneficiary changed March 25, 1915,” a new contract is not made, but there is a continuation of the original agreement with a change of beneficiary.</p> <p>A mutual benefit association by accepting the return of an old certificate against which there is a charge for a reserve fund, and issuing a new certificate against which there is no claim for a reserve without demanding a payment of the charge, will be deemed to have waived its right to require the payment of such charge.</p>

<p>Carriers — sufficiency of evidence to overcome statement in bill of lading of quantity received — limitation of liability — exemption from liability for negligence — application of rules to case arising under Harter Act — validity of limitation of liability as dependent on choice of rates — statement in signed bill of lading as admission ! of choice — effect of failure to sign bill — burden of proof as to ! non-existence of alternative rates — presumption of existence of choice arising from statements in unsigned bill.</p> <p>Testimony on the part of a carrier of goods that it had delivered all the property that had been received by it, and if a less quantity was delivered than called for by the bill of lading then a less quantity had been received by it, cannot have weight against a bill of lading acknowledging the receipt of a greater quantity than was delivered.</p> <p>A carrier may limit its liability for damages occasioned by its own negligence by a contract fairly made with the shipper agreeing on a valuation of the property carried, with the rate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation.</p> <p>But a carrier cannot exempt itself from the consequences of its own or its servant’s negligence.</p> <p>These rules are applicable to cases arising under the Harter Act (Act of February 13, 1893, chap. 105).</p> <p>It is essential to the validity of an agreement limiting a carrier’s liability for negligence that a choice of rates shall be given.</p> <p>Where a bill of lading signed by both parties recites that lawful alternate rates based on specific values were offered, such recitals constitute admissions by the shipper and sufficient prima facie evidence of a choice.</p> <p>The fact that the shipper did not sign the bill does not alter the rule but only makes it more difficult to prove that he was fully informed of its terms. The burden of proof is on a shipper alleging the invalidity of a bill of lading limiting the liability of the carrier to show that there was no alternative in existence, or that he was refused an alternative rate by the carrier.</p> <p>In the absence of evidence to the contrary the presumption is in favor of a statement in a bill of lading that the shipper had a choice of rates.</p>

<p>Appeal by the plaintiff, Max C. Degen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of April, 1919, granting defendants’ motion to be allowed to serve an amended answer.</p>

<p>Conversion — pleading — complaint — allegation of ownership and right to possession — allegation that sheriff’s jury found that property was in plaintiff — effect of finding of sheriff’s jury as to title to property.</p> <p>The plaintiff in an action for conversion must allege title to the property alleged to have been converted, or his right to the possession thereof.</p> <p>In an action for conversion, brought against a sheriff, in which the plaintiff’s surety was substituted as defendant, for refusing to turn over property which the plaintiff claimed in attachment proceedings and which a sheriff’s jury found to be in the plaintiff, an allegation that the plaintiff made claim to certain property on which an attachment had been levied and “ such proceedings were thereafter duly had that a Sheriff’s Jury was duly empaneled to try the validity of the claim and by their inquisition found the property of the said goods * * * to have been in the claimant at the time of the levy,” is not a sufficient allegation of ownership in the plaintiff; such an allegation is merely a statement of evidence from which the fact of ownership may be inferred.</p> <p>It is well known that the sheriff’s jury always finds in favor of the claimant in an attachment proceeding in order that the sheriff may be protected by the bond of the plaintiff therein, and such finding has never been held to be decisive on the question of title.</p>

<p>Appeals by the plaintiff, Lawrence Rukeyser, and by the defendant, Hull, Grippen & 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 10th day of May, 1919, resettling a prior order canceling and discharging of record certain judgments against the defendant Clifford LeP. Tostevin.</p>

Appeal by the defendant, National Surety Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of May, 1919, denying its motion for a stay of proceedings pending the review on writ of error to the United States Supreme Court of the judgment to secure which the undertaking in this action was given.

<p>Practice — undertaking given to pay any judgment secured in action pending if judgment in .another action involving same issues was affirmed — stay of proceedings in action on undertaking pending determination of appeal in action in which undertaking given.</p> <p>Where, pending an appeal in an action, another action was commenced against the same defendant involving the same issues, and an undertaking was given by the term,s of which it was agreed that if the trial of the second action was adjourned until a determination of the appeal in the first action, the surety would pay any judgment secured in the second action up to a stated amount, in case the judgment in the first action was affirmed, and the judgment in the first action was affirmed and a judgment secured in the second action, from which an appeal was taken after the commencement of an action on the undertaking, an order granting a stay in the action on the undertaking to await the determination of the appeal is improperly granted; it is against the letter and spirit of the undertaking that the payment of the judgment be delayed by unnecessary and frivolous appeals.</p>

Appeal by the defendants, Samuel G. Siegel and another, from a judgment of the Supreme Court in favor of the plaintiff’s intestate, entered in the office of the clerk of the county of New York on the 12th day of April, 1918, upon the verdict of a jury for 16,000, and also from an order entered in said clerk’s office on the 22d day of April, 1918, granting plaintiff’s motion for an extra allowance of costs and denying defendants’ motion for a new trial made upon the minutes.

<p>Fraud — action to recover damages — waiver of fraud by entering into new agreement as to payment and security for money fraudulently obtained —- pleading — necessary parties plaintiff — election — splitting causes of action — appeal, right to recover as for money had and received where case based on fraud.</p> <p>Where there were mutual dealings between the parties and it was claimed that the defendants obtained money from the plaintiffs fraudulently, an agreement entered into thereafter whereby the defendants gave security and an increased rate of interest in consideration of an extension of time by the plaintiffs for payment on a current account, including the amount alleged to have been fraudulently obtained, the plaintiffs thereby waived any right of action they had upon the fraud, and have only then: right of action for the balance due under the account current.</p> <p>In an action for fraud it is necessary that all the parties interested in and damaged by the fraud should be made parties plaintiff, or those who bring the action must prove an assignment to them by the others of their interest.</p> <p>Where the plaintiffs and others have two causes of action between which they can elect, one in contract and one in tort, and accept an assignment from the others interested, of the contract action, they thereby ratify the election made by the others, and cannot thereafter sue upon their own interest in tort and on the assigned interest of the others upon the contract; the cause of action cannot be split.</p> <p>Where an action is brought and tried on the theory of tort and to recover damages for fraudulently obtaining money, the plaintiffs cannot be allowed to recover on appeal as for money had and received.</p>

<p>Tenants in common — disseizin — adverse possession by one tenant — essential elements — facts from which adverse possession may be found — action to quiet title ■—■ entry of judgment on complaint against defendants served personally on failure to answer — Code Civil Procedure, section 1215, construed — entry of judgment against defendants served by publication who fail to answer — necessity for proving cause of action — answer of infant defendant submitting rights to court as raising issue — necessity for proving complaint where infant defendant submits rights to court — nature of subsequent proceedings — right to jury trial.</p> <p>One tenant in common of real property may disseize another, but mere possession by one of the tenants in common does not amount to an ouster.</p> <p>A tenant in common may, by disseizing Ms cotenant, acquire title by adverse possession; but tMs may be done only by notice to the cotenant that he claims possession adversely to the cotenant’s title, by refusal to account for rents and profits, or by unequivocal acts, open and public, mating the possession so visible, hostile, exclusive and notorious that notice may fairly be presumed.</p> <p>Where a tenant in common and Ms predecessors in title have been in the exclusive possession of the common land for eighty-three years, and the other tenant in common and Ms heirs have never made any claim against the property, and the tenant in possession and his predecessors collected all the rents and profits without accounting, and on a foreclosure sale of a mortgage given by a predecessor of the tenant in possession it was attempted to sell the whole property, a question of fact is presented as to whether the title had been acquired by adverse possession.</p> <p>In an action to quiet title the failure by defendants personally served to answer admits the allegation of the complaint, and a judgment may be entered directly upon the complaint under section 1215 of the Code of Civil Procedure.</p> <p>The provision of section 1215 of the Code of Civil Procedure authorizing the court to make a computation or assessment in an equity action, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment or to carry it into effect, does not require proof of the cause of action, but only of any incidental fact that may be necessary in order to enable the court to render judgment or carry it into effect.</p> <p>In an action to quiet title the plaintiff must prove his cause of action before he is entitled to judgment against defendants served by publication; and in the event of Ms failure the only judgment that can be rendered is one dismissing the complaint as to them.</p> <p>In such an action an answer by an infant defendant, submitting his rights to the court, wMch contains no dernals, nor any allegation of facts showing that she was entitled to an interest in'the property, and makes no demand for affirmative relief, raises no issue on the allegations of the complaint, and tenders no issue as to the infant’s interest in the property, under section 1641 of the Code of Civil Procedure.</p> <p>The effect of such an answer is merely to compel the plaintiff to prove the allegation of Ms complaint.</p> <p>If an infant sets up his interest in the property, the subsequent proceedings will be as if the action was in ejectment and she was the plaintiff. In such a case either party would be entitled to a jury trial.</p>

<p>Principal and agent — memorandum not showing agency for disclosed principal — sale — action to recover purchase price — necessity for showing that title passed — tender and demand of performance made by purchaser as putting vendor in default — agreement that delivery be made by warehouse receipt — right to deliver non-negotiable receipt — refusal to accept goods on one ground as waiving other objections •—■ necessity that vendor have title to make tender of warehouse receipt effective as delivery — ownership of personal property — possession as evidence of — possession secured through replevin — telephone conversation as to facts learned from others.</p> <p>An oral contract confirmed by a written note as follows: “We hereby guarantee to pay for 2 Tons Benzyl Chloride 97% at $1.75 per pound — F. O. B. New York, to be shipped to Messrs. M. Naef & Co., Geneva, Switzerland, as per instructions, upon presentation of Bill of Lading or Dock Receipt,” held, not to show, as a matter of law, that the purchaser was acting as agent of a disclosed principal.</p> <p>In an action to recover the purchase price of goods it is incumbent upon the plaintiff to establish that the contract was performed in stick' a manner as to pass the title to the merchandise to the defendant. !'“f'</p> <p>A purchaser of goods cannot put the seller in default by a tender of the price and a demand for an immediate delivery, where it appears that the purchaser required a sample of the goods for test purposes and that such test was to take a week or ten days and the demand for performance was made two days only- after the sample was delivered, for under the circumstances, no date of delivery being specified, the seller had a reasonable time for compliance, and the demand without notice was ineffective.</p> <p>It being agreed that the delivery of goods to the purchaser may be made by a warehouse receipt, delivery can be made as well by a non-negotiable as by a negotiable receipt.</p> <p>The refusal to accept goods on a stated ground will be deemed to constitute a waiver of all other objections which could have been obviated at the time.</p> <p>Where it is agreed that goods are to be delivered by warehouse receipt a tender of the receipt is sufficient to pass title if the goods were then owned by the vendor, but it would be insufficient if the title was not then in the vendor.</p> <p>Possession of personal property is presumptive evidence of ownership; but the presumption may be rebutted.</p> <p>■^he presumption of ownership flowing from a vendor’s possession is destroyed by the fact that he took the goods from the possession of the purchaser under a writ of replevin — a process that is provisional only and determines nothing as to ownership.</p> <p>Conversation of plaintiffs with defendant over the telephone, detailing to defendant facts which they learned from others, is not evidence of the existence of those facts.</p>

Appeal by the plaintiff, Mary Maslenka, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of said county on the 18th day of February, 1919, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Bronx Borough Bank, from an order of the Appellate Term of the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 2d day of January, 1919, affirming a judgment of the Municipal Court of the City of New York, Borough of Bronx, First District, in plaintiff’s favor, and also an appeal is taken from the judgment of the Municipal Court so affirmed.

Appeal by the defendant, Mark L. Kelley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of November, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of January, 1919, denying defendant’s motion for a new trial made upon the minutes.

Separate appeals by the City of New York and by The Press Publishing Company and others, property owners, from parts of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1918, confirming the report of commissioners of estimate and assessment awarding damages for the closing of portions of certain streets which were under the approach to the Brooklyn bridge.

Appeal by the plaintiff, Louis P. Reeder, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 19th day of November, 1917, upon a dismissal of the complaint as to the respondent by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the same day granting respondent’s motion to set aside a verdict in the sum of $40,000, theretofore directed in…

Appeal by the plaintiff, A. W. McLaughlin and 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 24th day of September, 1918, upon a dismissal of the complaint by direction of the court at the close of the case.

Appeal by the defendant, The Hocking Valley Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York upon the report of a referee appointed to hear and determine the issues.

<p>Appeal by the plaintiff, Giuliano Laudo, 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 18th day of April, 1919, dismissing the complaint upon the decision of the court after a trial at the Bronx Special Term.</p>

<p>Appeal by the defendant, David Dyer, 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 7th day of May, 1918, upon the verdict of a jury for $500.</p>

<p>Corporation — insolvency — preference — action under section 66 of Stock Corporation Law to set aside transfers to creditors — evidence of intent to prefer.</p> <p>Where in an action under section 66 of the Stock Corporation Law to set aside transfers alleged to have been made by a corporation while insolvent, with the intent of giving a preference, it appeared that the corporation made several payments within a few days before it stopped business to the brother-in-law and the wife of a member of the corporation, from whom it had borrowed money and that at the. time of said payments there were several thousand dollars of unsigned cheeks drawn to pay its bills, but which were not sent out because of lack of funds, the failure to sign and send out the checks was a confession of insolvency, and the large payments made to relatives within a few days of stopping business constitute strong evidence of intended preferential payments.</p> <p>The fact that the corporation, which was an advertising agency, was forced to stop business by the refusal of the Newspapers Publishers Association to extend credit after said payments were made does not overcome the evidence that a preference was intended.</p>

<p>Evidence — admissibility of parol evidence to establish full agreement— evidence of general trade custom — when said custom need not be specially pleaded.</p> <p>Where in an action to recover for services rendered pursuant to a contract in writing providing that “ the amount of commission is 10% on all work turned in, if the contracts are made with the customer direct — and 5% on work turned in through agencies,” the defendant alleges as a separate defense that plaintiff was to be paid ten per cent “ of all moneys paid to the defendant under the contracts turned in by the plaintiff, payable as and when the amounts due were received by the defendant,” it was reversible error to refuse to permit the defendant to introduce evidence as to the understanding of the parties concerning the circumstances under which the commissions were to be paid, the contract being silent in that particular.</p> <p>While parol evidence cannot be received to contradict or vary the terms of a written agreement, yet if a part of the agreement is not reduced to writing, parol evidence may be received to show what was the full agreement.</p> <p>Evidence of a general trade custom in substantial accord with the special defense pleaded by the defendant, would not tend to vary or contradict the terms of the full agreement between the parties, and it was not necessary to plead such custom specially in order to make it available.</p>

<p>Appeal by the defendants, Julius G. Kugelman and another, from a determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of February, 1919, affirming a judgment of the City Court of the City of New York, and also from the order of the City Court denying defendants’ motion for a new trial.</p>

<p>Appeal by the defendants, Isaac S. Wolf 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 2d day of January, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1918, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Abraham L. Erlanger, 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 upon the decision of the court after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Tina Houlden, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 10th day of September, 1917, upon the decision of the court dismissing the complaint after a trial before the court without a jury at the Steuben Special Term.

Appeal by the defendant, Aleck Lotsky; from an order of filiation, made by the Court of Special Sessions, Borough of Brooklyn, City of New York, entered in the office of the clerk of said court on the 17th day of April, 1919, which adjudges the defendant to be the father of the bastard child of one Mary Korder and directs him to pay to the commissioner of public charities of the city of New York the sum of three dollars per week for the support and maintenance of the child,…

<p>Aliens — status of citizen woman married to resident alien — rights of aliens whose country is at war with United States — alien friends — section 10 of Real Property Law construed — American woman wife of Austrian subject domiciled in this country as alien friend — right to take real property.</p> <p>A woman who marries an alien takes, under our Federal statutes, the political status of her husband.</p> <p>But, while this makes her an alien, it does not necessarily make her an alien enemy.</p> <p>The trend of recent decisions has.been to recognize and enforce the civil rights of citizens of a country with which we are at war, domiciled in this country, and whose laws they have respected and obeyed and who have observed the rules of conduct laid down for their guidance by competent authority.</p> <p>The usual and customary definition of an alien enemy is a subject of a nation which is at war with this country, while an alien friend is the subject of a nation which is at peace with this country.</p> <p>But an alien friend within the meaning of section 10 of the Real Property Law, as amended by chapter 152 of the Laws of 1913, is not merely a resident subject of a nation with which we are at peace, but also a resident subject of a nation with which we are at war, who has observed to the letter our laws and regulations laid down for his conduct.</p> <p>An American-born woman who has married a resident subject of a country (Austria) with which we are at war, but who is a law-abiding resident, is entitled to inherit real property of one dying intestate after war has been declared between this country and the country of her husband’s nativity.</p>

Appeal by the defendant, Lida M. Fleitmann, individually and as administratrix, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of January, 1918, upon the report of a referee appointed to hear and determine the issues.

<p>Appeal by the Farmers’ Loan and Trust Company from a decree of the Surrogate’s Court of the county of New York, entered in the office -of said Surrogate’s Court on or about the 12th day of July, 1918, as resettled by an order and decree entered therein on the 13th day of November, 1918, revoking ancillary letters testamentary heretofore issued to it upon the estate of Elizabeth Connell. Also an appeal is taken from an order entered in said Surrogate’s Court on the 25th day of November, 1918, denying appellant’s application to open the decree appealed from and to file an answer to the petition of the respondent asking for the revocation of the ancillary letters.</p>

<p>Husband and wife — validity of contract by husband to support wife and child executed after separation — inadequacy insufficient as ground for setting aside contract to support wife — when contract between husband and wife precludes further provision for their support in judgment in action for divorce.</p> <p>A contract entered into between a husband and wife after they had separated providing for her support and maintenance and releasing the wife’s rights in his property is binding upon both parties, unless set aside or impeached, and this is so although the marital relations between the parties are subsequently terminated by a divorce.</p> <p>Such a contract is not in violation of the Domestic Relations Law.</p> <p>A contract by a husband for the support of his wife may be set aside at her instance upon grounds which would be insufficient to set" aside a contract not of that character. But the mere fact that provision made thereby for support of the wife is subsequently claimed to be inadequate is not a sufficient ground for setting aside the contract.</p> <p>In an action by a wife for divorce, held, that a contract previously made by the defendant for the support and maintenance of the plaintiff and her child precludes the mating of any further provision in the action for the support of the wife, but not to prevent a further provision for the benefit of the child, it appearing that the plaintiff by said contract had not relieved the husband from the support of the child and that the sum contributed by him as provided in said contract is inadequate.</p>

<p>Municipal corporations — city of Rochester — public health — municipal ordinance not repealed by subsequent enactment of charter — authority of health officer or commissioner of public safety to require blood test of applicant for license to sell milk — provisions of charter construed.</p> <p>The power of the State, in protection of the public health, to reasonably regulate any business having relation to the public health and to delegate to local authorities of the various political subdivisions of the State such power for convenience is well established.</p> <p>The adoption of the charter of the city of Rochester (Laws of 1907, chap. 755) did not destroy a so-called health ordinance previously adopted providing for the licensing of dealers in milk.</p> <p>Under the charter of the city of Rochester, neither the health officer nor the commissioner of public safety is entitled to require an applicant for a license to sell milk to submit to a blood test for the purpose of determining whether or not he had ever had typhoid fever or was a “ carrier ” of typhoid germs, in the absence of an enactment by the Legislature, or by the common council of the city.</p> <p>The discretionary powers vested in the health officer and commissioner of public safety of said city by the charter to grant or withhold licenses relate only to the limited powers of said officers as defined in the charter and do not create in them a legislative discretion.</p> <p>The power to enact a regulation for a blood test has not been and cannot be delegated.</p>

<p>Tax — transfer tax — intangible property — contract by non-resident to convey land situate in this State — equitable conversion — effect of default in payment by vendee.</p> <p>A contract to sell land situate in this State, executed by a vendor who resided and died in a foreign State which contract was in her possession in said State and passed under her will, which was not executed in such form as to pass title to real estate in this State, is, under the rule of equitable conversion, intangible property as defined by section 220 of the Tax Law and is not taxable.</p> <p>Since the vendee’s right to require a deed had never been terminated prior to the death of the decedent vendor, notwithstanding said vendee’s default in making payments, and he could have compelled a specific performance, it should be held for the purpose of a taxable transfer that the interest of the vendor under the contract was personal property, and that the fee of the land which passed to a nephew under our statutes of descent had only a nominal value.</p>

<p>Will — unlawful suspension of power of alienation of real property — “ divide and pay over rule ” applied.</p> <p>A will by which a testatrix expressly directs that when all of her minor grandchildren, naming them, shall become twenty-one years of age or when all living shall arrive at such age the executrix or administrator with the will annexed shall sell and convey specified real estate and divide the proceeds in equal shares between said grandchildren if all are then living, and if any are dead, between the survivors, and that such sale, conveyance and division shall not take place before the death of her husband, and in the meantime gives and devises the use of said property to her husband and in case of his death before the time for said sale gives and devises the use of said property to her daugher until such time if she shall live so long, unlawfully suspends the power of alienation.</p> <p>Futurity is annexed to the substance of such devise, the remainder is contingent and the power to alienate the property is suspended for more than two lives in being at- the death of the testatrix.</p> <p>The <! divide and pay over rule ” must be applied and in the scheme of the aforesaid provision of the will there are no persons who can convey the fee of the property within the period of two lives in being at the death of the testatrix.</p>

Appeal by the defendant, John N. Patton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 18th day of June, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of June, 1918, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Montford C. Holley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Niagara on the 16th day of December, 1918, upon a dismissal of the complaint by direction of the court at the close of plaintiff’s case as to the defendant Arthur W. Haile, and upon the verdict of a jury as to the defendant A. W. Haile Motor Company, and also from an order entered in said clerk’s office on the 19th day of December, 1918, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Villages—highways — application for appointment of commissioners to ascertain damages from change of grade by State in improving highway—notice to State authorities not necessary— owner not estopped from claiming damages by failure to determine whether or not contract had been fulfilled— duty of village to inspect work of contractors— method of ascertaining damages — form of questions to witnesses — report of commissioners affirmed.</p> <p>Upon an application for the appointment of commissioners to determine damages sustained by an owner of property adjoining a village street by reason of the change of the grade of the street by the State authorities in the construction of an improved roadway in a county highway under the provisions of the State Highway Law it is unnecessary to serve notice upon the State authorities.</p> <p>Such an owner is not estopped from claiming damages for the condition in which her property was left because she did not inspect the work of the contractors as it progressed and determine for herself whether or not the contract had been fulfilled, as such duty rested upon the village authorities.</p> <p>In a proceeding by an owner of property adjoining a village street to recover damages for a change of grade by the State authorities there is no exact moment of time as to which the damages are to be ascertained. Theoretically such time is the date when the improvement necessitating the change of grade is substantially completed assuming a reasonable time to have elapsed between the commencement of the work of the improvement and its completion.</p> <p>The rise or depression in the value of the real estate involved due to some condition not connected with the improvement should not be considered in the determination of the damages.</p> <p>The provision of subdivision 2 of section 159 of the Village Law, requiring the commissioners “ to ascertain the value of any benefits or advantages to the property in consequence of the alteration of the grade,” does not confine the damages to the condition immediately following the change of the grade in its narrowest sense, but contemplates the condition existing when the work involving the alteration is reasonably completed.</p> <p>The form of questions asked witnesses as to the value of the property claimed to have been damaged was not prejudicial to the defendant.</p> <p>Order confirming report of commissioners appointed pursuant to subdivision 2 of section 159 of the Village Law affirmed.</p>

Appeal 'by the plaintiff, Herbert S. Sisson, as State Commissioner of Excise, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 20th day of February, 1919, sustaining a demurrer to the complaint and dismissing the same upon the merits, upon the decision of the court after a trial of the issues of law at the Oneida Special Term.

Appeal by the plaintiff, The Baker B. & L. Company, Incorporated, from an order of the County Court of Bock-land county, entered in the office of the clerk of said county on the 19th day of May, 1919, opening a default judgment taken before a justice of the peace against defendant on the 1st day of February, 1919, for seventy-four dollars and forty-eight cents.

<p>Limitation of actions — action against non-resident accruing in another State — Code of Civil Procedure, sections 390, 390a and 401, construed — necessity for proof of residence of plaintiff.</p> <p>Where a cause of action, accruing in Pennsylvania against one who was at the time and at all times since has been a resident of said State, was at the time the action was brought barred by the Statute of Limitations of Pennsylvania, and it was not shown that any of the plaintiffs resided in this State, section 390 of the Code of Civil Procedure, as amended by chapter 539 of the Laws of 1916, providing that when a cause of action accrues against a non-resident an action cannot be brought against him or his personal representatives in this State, after the expiration of the time limited by the laws of his residence, is the only Statute of Limitations applicable.</p> <p>Section 390a of the Code of Civil Procedure, providing that where a cause of action arises without the State an action cannot be brought thereon within the State after the time limited by the laws of the State or country where the action arose, excepting where the cause of action accrued in favor of a resident of this State, which section is still in force, relates generally to causes of action arising outside the State without regard to the residence of the person against whom they accrue, excepting where the cause of action accrues in favor of a resident of this State.</p> <p>It may be that section 401 of the Code of Civil Procedure extending the Statute of Limitations with respect to a cause of action accruing against a person who is without the State or who departs from the State and remains continuously absent therefrom for a period of one year or more after the cause of action accrued, or resides in the State under a false name, still applies to some causes of action against non-residents who were such when the cause of action accrued.</p> <p>Where an action is brought in this State on a cause which accrued in another State and is barred by the Statute of Limitations thereof, the plea of the Statute of Limitations of this State and proof that the action was not brought in time makes out a prima facie defense; and, if the plaintiff desires to bring himself within the exceptions in sections 390a and 401 of the Code of Civil Procedure, in favor of residents of this State, the burden is upon him to show that he was a resident of this State when the cause of action accrued.</p>

<p>Appeal by the defendant, John Geiger, 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 3d day of May, 1918, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 2d day of May, 1918, denying defendant’s motion for a new trial made upon the minutes.</p>

Certiorari issued out of the Supreme Court and attested on the 21st day of June, 1918, directed to Alfred E. Smith and others, composing the board of aldermen of the city of New York, commanding them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in the matter of the contest of John L. Dempsey against the election of William W. Colne as a member of the board of aldermen for the forty-sixth alder-manic district…

Appeal by Henry R. M. Cook, a witness, from, an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1919, directing the issuance of a warrant of attachment against him and commanding the sheriff to bring him forthwith before the commissioner of accounts of the city of New York to be examined and testify upon the examination by the said commissioner of the accounts and methods…

Appeal by the defendants, Pennsylvania Railroad Company 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 January, 1919, denying their motion to dismiss the complaint and to vacate and set aside a requisition in replevin.

Appeal by the defendant, William S. Pollitzer, 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 26th day of February, 1919, upon the decision of the court after a trial at the Kings County Special Term. The judgment decreed the separation of the parties.

Appeal by the plaintiff, Eugene Kelly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 28th day of June, 1917, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the Mount Vernon Trust Company and others, as executors and trustees, and another, from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 30th day of December, 1918, in a proceeding for the construction of the last will and testament of William Allen, deceased, whereby the surrogate adjudged that the will, except for certain legacies, was void.

<p>Appeal by Dora G. S. Hazard and others, individually and as executors, and others, from an order of the Surrogate’s Court of the county of Onondaga, entered in the office of said Surrogate’s Court on the 13th day of March, 1919, affirming a prior order entered upon the report of the transfer tax appraiser fixing the transfer tax in this estate.</p>

Appeal by the defendant, Samuel Fischer, 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 13th day of March, 1919, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 20th day of March, 1919, denying defendant’s motion for a new trial made upon the minutes. •

■ Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Queens on the 13th day of June, 1918, dismissing the complaint. Judgment affirmed, with costs. No opinion. Jenks, P. J., Rich, Kelly and Jaycox, JJ., concurred; Putnam, J., read for reversal.

<p>Appeal from a judgment of the Supreme Court, entered in the Bronx county clerk’s office January 11, 1919, upon a decision dismissing the complaint upon the merits.</p> <p>Judgment affirmed. No opinion. Present — Clarke, P. J., Laughlin, Dowling, Page and Merrell, JJ.; Clarke, P. J., dissented.</p>

<p>Practice — opening default — limitation of action.</p>

<p>Negligence — landlord and tenant — duty to repair outside railing — conn tributory negligence.</p>

Appeal by the defendant, Raquette Palls Land Company, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Hamilton on the 21st day of March, 1918, denying its motion to vacate a stipulation herein and also to vacate the judgment entered and deed delivered pursuant thereto.

This is an appeal by the employer and insurance carrier from an award made by the State Industrial Commission, December 31, 1918. Award reversed and claim dismissed, on the authority of Stillwagon v. Callan Brothers, Inc. (183 App. Div. 141; affd., 224 N. Y. 714); Griffin v. Roberson & Son (176 App. Div. 6); De Filippis v. Falkenberg (170 id. 153; affd., 219 N. Y. 581).

<p>Appeal from an award of the State Industrial Commission, made August 8, 1918, in favor df the claimant. Award affirmed. All concurred, except Woodward, J., dissenting, with an opinion.</p>

Appeal by Benedict F. Haberle and others, property owners, from an order of the Supreme Court, made -at the Oneida Special Term, and entered in the Oneida county clerk’s office September 23, 1918, setting aside the report of the commissioners in condemnation proceedings and appointing new commissioners.

<p>Motion to confirm report of official referee.</p>

Cross-appeals from orders of the Supreme Court, entered in the New York county clerk’s office on the 23d day of Janu'ary, 1919, and the 25th day of February, 1919, respectively; the appeal by the plaintiff being from that part which grants defendant’s motion to set aside the verdict and for a new trial, and the appeal, by the defendant from that part which denies its motion to set aside the verdict and for a new trial.

<p> Practice—facts to be stated on submission of controversy. </p>

Judgment and order affirmed, with costs. All concurred, exciambert, J., who dissented in a memorandum; Hubbs, J., not sitting.