Volume 190 — New York Appellate Division Reports

<p>Evidence — Code Civil Procedure, section 329, construed — suit by administratrix for conversion —■ testimony as to claim of title and to declarations of decedent — motion for leave to withdraw juror.</p> <p>In an action for the conversion of the property of an estate brought by an administratrix in her official capacity she is entitled to testify that she owned the property as administratrix, and it was error to exclude the evidence as within the prohibition of section 829 of the Code of Civil Procedure.</p> <p>So too, it was error to strike out testimony by the plaintiff as to declarations made by the decedent in the defendant’s presence claiming ownership of the property.</p> <p>Held, that under the circumstances disclosed by the record the court should have permitted the plaintiff to withdraw a juror upon terms.</p>

<p>Evidence — Code Civil Procedure, section 829, construed — transactions with decedent — distinction between testimony by claimant and testimony by administratrix seeking to protect estate.</p> <p>In an action of replevin brought against an administratrix to recover possession of securities contained in a safe deposit box which the plaintiff claimed she delivered to her mother, also deceased, for safekeeping, it was not error for the court to refuse to allow the defendant administratrix to testify as to conversations between her intestate husband and his mother to whom the property was given for safekeeping for it would have been testimony given by a party and a person interested in the event, in her own behalf and interest, against a person claiming to derive her title and interest through the other deceased person, that is to say, the mother.</p> <p>But in the said action it was error to refuse to allow the defendant administratrix to testify as to transactions with her husband, the intestate, prior to his decease and to refuse to allow her to state that after her marriage she saw the securities in his possession and also that she saw them in the safe deposit box belonging to the intestate. This, because the administratrix was not making a claim against the estate but, on the contrary, was endeavoring to establish her title as legal representative..</p>

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

<p>Appeal by the plaintiff, The Bronx Gas and Electric 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 23d day of July, 1919, denying plaintiff’s motion, made pursuant to section 976 of the Code of Civil Procedure, to overrule the demurrer interposed to the first cause of action alleged in the complaint and for judgment on the pleadings.</p> <p>The opinion of the Special Term is reported in Bronx Gas & Electric Co. v. Pub. Serv. Comm. (108 Misc. Rep. 180).</p>

<p>Replevin — action against government contractor — equipment rented to contractor and taken over by government.</p> <p>In an action of replevin it appeared that the defendant, who had a contract with the United States government on the cost-plus plan for the construction of a building, hired the plaintiff as a foreman on a concrete mixer and steam shovel; that theplaintiff furnished certain equipment which he leased to the defendant for use on the job; that the defendant was to receive a fixed rental for such equipment as it owned on the job and whenever the rentals equaled the fixed value the property passed to the government as owner; that the plaintiff had knowledge of said arrangement, and that he fixed a price upon his equipment about the time it was placed upon the job and later asked for and received increased pripes from a representative of the government.</p> <p>Held, that the defendant did not at any time wrongfully withhold from the plaintiff his property, but that the government took said property and claimed title and refused to permit it to be removed.</p> <p>The fact that the defendant was at work for the government at the time did not make him responsible for the acts of the government.</p> <p>The defendant had no power to deliver possession of the property and the facts which took it out of his power to remove it were well within the contemplation of the plaintiff and the defendant when the property was put upon the job.</p> <p>Woodward and H. T. Kellogg, JJ., dissent.</p>

Appeal by the plaintiff, Harris S. Williams, as trustee, and the First National Bank of Cooperstown, N. Y., from an order of the Supreme Court, made at the Otsego Trial and Special Term and entered in the office of the clerk of the county of Otsego on the 31st day of May, 1918, denying the motion of the plaintiff to open the judgment herein and permitting the First National Bank of Cooperstown, N. Y., to appear and plead herein, and substituting the First National Bank of…

Appeal by the defendants, Continental Iron Works and another, from an award of the State Industrial Commission in favor of the claimant, entered in the New York city office of said Commission on or about the 31st day of May, 1919.

<p>Appeal by the defendants, The New York Central Railroad Company and another, 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 7th day of October, 1919, denying defendants’ motion to change the place of trial.</p>

Appeal by the defendants, Homeopathic Hospital and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of April, 1919, upon the verdict of the jury for $700, and also from an order entered in said clerk’s office on the 1st day of May, 1919, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Griffin Comers Water Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Delaware on the 15th day of February, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of February, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Thomas Thurston, from a judgment of me Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 25th day of March, 1919, upon the report of a referee.

Appeal by the petitioners, August Zimdahl and another, from an order of the Surrogate’s Court of the county of Chemung, entered in the office of said surrogate on the 6th day of September, 1919, appointing the Chemung Canal Trust Company guardian of the estate of Walter T. Zimdahl, an infant, and appointing Elma Hillman guardian of the person of said infant.

<p>Crime — conviction for assault on prosecution for manslaughter — injury to another by pistol shot — issue as to proximate cause of death — charge.</p> <p>Appeal from a judgment convicting the defendant of the crime of assault in the first degree after trial of an indictment for manslaughter. Evidence held, sufficient to justify a conviction.</p> <p>Where the defendant deliberately fired two revolver shots into the body of the decedent, which took effect in the lungs in the vicinity of the heart, but there was a question as to whether the person shot would have died if he had obeyed the direction of his physician so that there was a conflict as to the proximate cause of death, it was proper for the court to charge that the jury might convict the defendant of assault in the first degree, for section 444 of the Code of Criminal Procedure expressly provides that upon a trial for murder or manslaughter if the act complained of is not proven to be the cause of death the defendant may be convicted of assault in any degree.</p>

<p>Telegraphs and telephones — negligence — failure of telegraph company to transmit message correctly — rights of receiver of message measured by those of sender — contract limiting liability of telegraph company — gross negligence essential to recovery — mistake as to price of goods.</p> <p>Where a vendor sends a telegraphic message stating prices of goods, the liability of the telegraph company to the vendee who orders goods in reliance on the telegram is measured by the terms of the agreement between the vendor and the telegraph company. The vendee’s right of recovery against the telegraph company for damages caused by a mistake in the message is derived through the vendor and the vendee has no other or greater right than it had.</p> <p>Where the terms printed on the telegraph blank provided that the company should not be liable for mistakes in the transmission or delivery of unrepeated telegrams beyond the amount received for sending the same and should not in any event be liable for damages for any mistakes whether caused by the negligence of its servants or otherwise beyond the sum of fifty dollars unless a greater value be stated in writing at the time of the telegram and an additional sum based on such value be paid or agreed to be paid, the recipient of the telegram can only recover for damages caused by a mistake of the company in transmitting the message on proof of gross negligence and cannot recover because of a mere mistake or error not amounting to more than ordinary negligence.</p> <p>Where the telegram as delivered to the telegraph company by the vendor addressed to the vendee quoted fruit at five dollars per hundredweight, but the telegram as delivered to the vendee gave the price at four dollars, on which basis the vendee resold the goods before discovering the error, there is no gross negligence warranting a recovery from the telegraph company beyond the price paid for the message.</p> <p>Woodward, J., dissents.</p>

Appeal by the defendants, Krosnoger Brothers and another, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 16th day of May, 1919.

Appeal by the defendant, Archie Gladstone, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 16th day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of May, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Hudson Shoring Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 1st day of July, 1919.

<p>Highways — abandonment — travel by pedestrians sufficient- to maintain existence of highway within section 234 of Highway Law — failure of city to construct sidewalks does not deprive pedestrians of right to use street</p> <p>City streets which are traversed longitudinally by a railroad, and which have been continuously traveled by pedestrians, have not ceased to be highways under section 234 of the Highway Law, although portions of said streets have been in such condition by reason of the occupancy of the railroad that they could not be traveled with teams or vehicles.</p> <p>It is not essential to the existence of a street that it shall be at all times subject to passage by vehicles.</p> <p>The failure of a city to construct sidewalks on a street does not deprive pedestrians of the right to use it.</p>

Appeal by the defendants, A. I. Namm & Son and another, from an award and order of the State Industrial Commission, entered in the New York office of said Commission on the 29th day of May, 1919.

Appeal by the defendant, The New York Air Brake Company, from an award and order of the State Industrial Commission, entered in the office of said Commission on or about the 23d day of May, 1919.

Appeal by the plaintiff, Samuel W. Luitwieler, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 1st day of July, 1919, dismissing the complaint at the close of plaintiff’s case after a trial at the Monroe Special Term.

Appeal by the plaintiffs, Benjamin Gedney and another, as overseers of the poor of the town of Lloyd, from an order of the County Court of the county of Ulster, entered in the office of the clerk of said county on the ^bth day of March, 1919, as resettled by an order entered in said clerk’s office on the 7th day of April, 1919, permitting the defendant to plead and interpose an amended answer.

<p>Sales — validity of unñled conditional sale contract for elevator to be placed in building thereafter to be constructed as against subsequent mortgage on building — elevator constituting chattel “ attached ” to building within section 62 of Personal Property Law — subsequent bona fide building and loan mortgage recorded before installation of elevator.</p> <p>An elevator installed in a building becomes a part thereof and must be regarded as a part of the realty, and is a chattel “ attached ” within the meaning of section 62 of the Personal Property Law providing that a conditional sale contract of any chattels attached to a building shall be void as against subsequent bona fide incumbrancers unless said contract is filed on or before the delivery of the goods.</p> <p>A building and loan mortgage, executed and recorded before an elevator was installed, given to raise money to construct the building including the elevator, and referred to in the building loan contract which provided that payments should be made by the mortgagee as the work of construction progressed, and that the final payment should not be made until the building was completed, did not become effective as to its full amount till after the elevator had been completely constructed and it was, therefore, a subsequent bona fide mortgage within the meaning of section 62 of the Personal Property law.</p>

Appeal by the defendant, Augustus H. Todd, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Delaware on the 26th day of April, 1919, on a decision of the court after a trial before the court without a jury.

Appeal by the plaintiff, William E. Barber, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Montgomery on the 30th day of June, 1919, dismissing the complaint at the close of the plaintiff’s case.

Appeal by the defendant, Blauner’s, from an order of the Supreme Court, made at the New York Special Term, as resettled by an order of said court, entered in the office of the clerk of the county of New York on the 1st day of July, 1919, con firming the report of a referee finding that the defendant, a foreign corporation, is doing business in the State of New York.

Appeal by the plaintiff, James A. Foley, as receiver, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of October, 1919, canceling a notice of pendency of action.

<p>Appeal by the defendant, Mildred Ronalds, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of November, 1919, denying defendant’s application to cancel a notice, of pendency of action.</p>

<p>Appeal by the defendants, Ella J. Carey 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 25th day of July, 1919, overruling the demurrer to the complaint.</p>

<p>Motion for reargument of an appeal by the plaintiff, Flora MacDonald White, from two orders of the Supreme Court, made at the New York Special' Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1919, denying plaintiff’s separate motions for judgment on the pleadings, consisting of the amended complaint and demurrers thereto.</p>

<p>Appeal by the defendants, The City of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of June, 1919, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 30th day of June, 1919, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, West End Paper Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 11th day of February, 1919, upon the verdict of a jury rendered by direction of the court after a special Verdict, had been received, and also from an order entered in said clerk’s office on the 20th day of February, 1919, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Railroads — overhead highway crossing — validity of provision in order of former Board of Railroad Commissioners that railroad maintain roadway and sidewalk — failure to appeal from order of Public Service Commission refusing to modify said provision — building overhead crossing under said order as binding railroad company to perform condition —• Railroad Law, section 93.</p> <p>Where a railroad company applied to the former Board of Railroad Commissioners to have the highway at a crossing carried over its tracks, and the order granted by the said Commissioners provided that the cost of the work should not be borne by the State or the town, and that the said railroad company should maintain the roadway and sidewalk of the overhead bridge and approaches thereto, irrespective of the provisions of section 64 (now section 93) of the Railroad Law, and the said railroad company proceeded to construct the overhead crossing at its own expense under the permission granted and without appealing from a determination of the Public Service Commission refusing to modify the provision of the order as to maintenance, it will be deemed to have accepted said provision, and is bound to maintain the roadway and sidewalk, notwithstanding the provisions of the Railroad Law.</p>

<p>Appeal by the defendants, George Kleinau and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 14th day of June, 1919.</p>

Appeal by the defendant, E. H. Titchener and 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 16th day of October, 1917, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of October, 1917, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles E. Lair, 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 2d day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying defendant’s motion for a new trial made upon the minutes.

<p>State — constitutionality of enabling act giving relief on barred claim — Court of Claims — limitation of jurisdiction — claim for injuries due to defective appliances — essential elements of recovery — doctrine of respondeat superior — applicability to State — effect of section 264 of Code of Civil Procedure — State Commissioner of Highways and assistant engineer in Department of Commission of Highways not agents of State — master and servant — safe appliances — selection by servant of unsafe appliances when safe appliances are furnished — fellow-servant selecting unsafe appliances — enabling act valid — power of Legislature to legalize private claims against State founded on equity and justice — claim for injury received in carrying out orders of State Department — reasonable care — appeal — review of decision rejecting claim as unjust — power of courts to pass on validity of claim recognized by enabling act — claimant not chargeable with fault of fellow-servant.</p> <p>An enabling act which provides no new cause of action but simply recognizes a claim which is barred by the Statute of Limitations, is ineffective, under article 7, section 6, of the State Constitution, to give relief to the claimant.</p> <p>While the jurisdiction of the Court of Claims, independently of a special statute, covers all private claims against the State, it is subject to the limitation imposed by section 264 of the Code of Civil Procedure that in no case shall any liability be implied against the State except upon such legal evidence as would establish liability against an individual or a corporation in a court of law or equity.</p> <p>One who seeks to recover damages from the State for injuries received by reason of its failure to provide him with tools and appliances suitable and safe for his work, must establish that the relationship between himself and the State was the precise relationship of master and servant, and that the use of the unsafe appliances by the claimant was due to the neglect of the master State to provide tools and appliances which were suitable and safe.</p> <p>The doctrine of respondeat superior is not applicable to the State so as to make it liable for a tort committed by those in public service, for the State as a sovereign cannot be guilty of a wrong by imputation for the acts or omissions of officers considered as agents.</p> <p>But the limitation contained in section 264 of the Code of Civil Procedure inferentially made the State liable for torts where citizens under the same circumstances would be liable, so that the doctrine stated of the inapplicability to the State of the principle of respondeat superior holds good only to the extent that, being a principle of the law of agency, it generally has no application to the State, for the reason that ordinarily public officers are not servants, and the State is not their master.</p> <p>The State Commissioner of Highways in building public roads is an independent public officer, and particularly so when he constructs no roads but merely engages his subordinates in drafting, surveying and mapping, that roads may be built by others.</p> <p>An assistant engineer in the Department of the Commission of Highways working under the direction of the State Commissioner of Highways, is not, while so engaged, an agent of the State.</p> <p>Accordingly, where the claimant, an assistant engineer in the Department of the Commission of Highways, was engaged in making preliminary surveys and maps for the construction, under contract, of a State highway along the cliffs of Storm King Mountain at the time he received the injuries on which his claim is based, the relation of master and servant did not exist between him and the State.</p> <p>The claimant, with three other engineers from the Department of the Commission of Highways, was directed to make a preliminary survey of a State highway to be constructed along the cliffs of Storm King Mountain, and was given charge of the survey. Other duties intervening, he did not accompany his fellow-engineers but met them near the site of the proposed highway and the party, taking the ropes and other needed articles which had been forwarded, proceeded to the mountain. In the course of the survey, it became necessary for the claimant to descend the side of a very steep cliff, and in order to do so he selected a rope about three hundred feet long and tied it to a tree near the edge of the cliff, and thereby lowered himself to a small projecting shelf on the side of the cliff. As the first rope was not long enough to permit him to descend to the point where he could perform the work required, he signaled to his fellow-engineer at the top of the cliff for another rope, and said engineer selected one of two ropes, which rope was an inch in diameter and apparently sound, although discolored by use, and lowered it to the claimant who fastened it to a tree. The claimant swung out upon the last rope and had gone down but a few feet when it parted and he fell receiving the injuries on which he bases his 1 claim. The rope that was not used was sound and would have held the claimant in his descent. If it be assumed that the relationship between the claimant and the State was that of master and servant, no liability arose for failure to provide suitable and safe appliances, for the State having furnished ropes of suitable strength, the act of selecting the individual rope was a mere matter of detail of the work, for which the State ■ was not responsible.</p> <p>The act of the engineer stationed at the top of the cliff in selecting the unsound rope was the act of a fellow-servant, so that if the relationship of master and servant existed the State was absolved from all blame for the injury received.</p> <p>Thus it appears that the claimant by the application of principles of law obtaining in analogous cases between citizens had no claim enforeible in the Court of Claims under the provisions of section 264 of the Code of Civil Procedure, and hence the Legislature was not inhibited by section 6, article 7 of the State Constitution from enacting a law affording the claimant particular relief.</p> <p>Although the Legislature may not make a gift of the moneys of the State nor itself audit or allow a private claim against the State, it may recognize and legalize private claims, which, though unenforcible through the application of legal principles, are yet founded upon equity and justice, and it may empower the Court of Claims to audit and allow them.</p> <p>The injuries of the claimant arising from the peril of descending a precipitous cliff upon a rope, under orders of a department of the State, furnish valid grounds for the passage of an act recognizing a claim for damages against the State.</p> <p>The claimant at the time of the accident was in the exercise of “ reasonable care under the circumstances ” as provided by the enabling act, for when he received the rope which was lowered to him, he was in no position to make a test thereof before he used it, and if there was any negligence in selecting the unsound rope, it was the negligence of the claimant’s fellow-engineer at the top of the cliff.</p> <p>A decision of the Court of Claims rejecting a claim presented under an enabling act as unjust and inequitable is reviewable on appeal.</p> <p>If the Legislature constitutionally recognizes the justice and equity of a claim on condition that certain facts are proven, it retroactively provides a principle of law, which, if the proven facts are the facts of the statute, makes the claim legal and it must be enforced.</p> <p>If the Legislature attempts to legalize an uneonseientious claim, its effort is directed toward making a gift of the moneys of the State, and this it may not do under the Constitution, and there is always, therefore, a constitutional question involved in the legislative recognition of a claim, and to this extent the question of the justice and equity of the claim survives to the courts.</p> <p>On the trial of a claim presented against the State under an enabling act, for personal injuries received by the claimant, the ordinary rules in an action for negligence are not applicable, and the claimant is not chargeable with the fault or negligence of a fellow-servant.</p> <p>Cochrane, J., dissents.</p>

<p>Appeal by the defendant, New York Consolidated Railroad Company, from a decision and award of the State Industrial Commission, filed in the office of said Commission on the 7th day of May, 1919.</p>

Appeal by the defendants, J. Rheinfrank & Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 18th day of June, 1919, directing the payment of $100 to the State Treasurer.

<p>Corporations — membership corporation — manufacturers’ association — penalties for violation of by-laws — necessity that method of determining maximum penalty be fixed — legality of fine assessed —■ necessity that fine be reasonable — complaint in action to recover fine — appeal from order overruling demurrer heard as contested motion — power of appellate court to sustain demurrer in absence of counter-motion — practice — right of court to completely dispose of demurrer though cross-notice of trial not served.</p> <p>It is competent for a membership corporation organized to promote harmonious relations between clothing manufacturers and their employees, "and to improve the welfare of the industry, to fix penalties by way of fines for derelictions of its members, but the penalties must be determined according to some method, to which the members have agreed, at least impliedly</p> <p>" by joining the corporation, not only as to the imposition of the fine, but also as to the maximum amount thereof; otherwise the corporation would be allowed to assess its own damages, which would be unjust and improper.</p> <p>A by-law imposing an excessive fine will be set aside as unreasonable. But a fixed reasonable fine in the nature of liquidated damages for injuries sustained because of dereliction by a member may be imposed.</p> <p>Complaint in an action to recover from the defendants the amount of a fine imposed upon them by the plaintiff corporation, examined and held not to state a cause of action.</p> <p>On an appeal taken from an order overruling a demurrer to the complaint, which was brought on for trial by the plaintiff as a contested motion under section 976 of the Code of Civil Procedure, the Appellate Division has power to award the defendants relief by sustaining the demurrer, although no counter-motion was made by them.</p> <p>The failure of a defendant to serve a cross-notice of trial of a demurrer to the complaint which was brought on for trial by the plaintiff as a contested motion, does not prevent the court from completely disposing of the demurrer, where both parties appear at the trial thereof and argue the points of law involved.</p>

Appeal by the defendant, Walker D. Hines, 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 8th day of May, 1919, upon the verdict of a jury for $21,500, and also from an order entered in said clerk’s office on the 7th day of May, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Jacob Levine and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 25th day of January, 1919, upon the decision of the court setting aside a bond and second mortgage upon the ground that it had been procured under duress practiced on the plaintiffs.</p> <p>The mortgage in question with $200 cash was given to defendant to discharge an alleged mechanic’s hen by Jacob Levine for $2,440, dated January 24 and filed January 29, 1918. As found by the court, it had been oppressively extorted when only $112.66 was owed Levine.</p>

<p>Appeal by the defendant, Robert H. Reid, 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 19th day of July, 1919.</p>

Appeal by Eugene M. Travis, as Comptroller of the State of New York, from an order of the Surrogate’s Court of Dutchess county, entered in the office of said Surrogate’s Court on the 25th day of March, 1919, modifying a prior order of said court entered in said clerk’s office on the 27th day of March, 1917, fixing the transfer tax on the estate of Estelle Livingston Redmond, by eliminating the ultimate remainders after the life estates of her husband and her sons from the…

Appeal by the defendants, Nathan J. Miller 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 31st day of October, 1919, overruling defendants’ objections to questions asked one of defendants in his examination before trial.

Appeal by the defendants, John F. Baudouine and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the'county of New York on the 27th day of May, 1919, after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the same day denying the motion of the defendant John F. Baudouine for leave to serve a supplemental answer and to reopen the case.

Reargument of an appeal by the defendants, Home Bank of Brooklyn and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of November, 1918, upon a decision of the court after a trial at Special Term. This is an action to enforce alleged statutory liability of the defendants as stockholders in the Union Bank of Brooklyn, pursuant to the Banking Law (Consol.

Appeal by the defendant, Sarah K. Edwards, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 1st day of August, 1918, upon the decision of the court after a trial at the Monroe Equity Term.

Appeal by the plaintiff, James D. Harris, for himself and on behalf of all other stockholders of the State Bank of Williamson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wayne on the 31st day of December, 1918, and also a motion to dismiss said appeal.

Appeal by the defendant, London Guarantee and Accident Company, Ltd., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of December, 1916, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, DeGrasse Paper Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 26th day of October, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1918, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Railroads — negligence — action under Federal Employers’ Liability Act — conductor killed while engaged in switching train — verdict for plaintiff against weight of evidence — failure to show negligence of defendant — contributory negligence of decedent conclusively established — assumption of risk.</p> <p>Action brought under the Federal Employers’ Liability Act against a railroad' company to recover for the death of a conductor who, at the time of the accident, was in charge of a wrecking train which was being switched from a side track to one of the main tracks of the defendant’s road. It appeared that the decedent was an employee of long experience and was familiar with the location. His train had been moving slowly and when it was mostly upon the main track he alighted from a flat car on which he had been riding and stepped to the middle of the track for east-bound freight trains and while standing with his back to the west making a signal, was struck and killed by freight engines coupled together which, at the time he stepped upon the track, were close upon him, although moving slowly and which would have been visible for a distance of over 800 feet. On all the evidence,</p> <p>Held, assuming that it was essential for the plaintiff to show that the bell on the engine which struck the decedent was not ringing, she failed on this burden of proof as a matter of law.</p> <p>Held further, that plaintiff failed to show any negligence on the part of the defendant or lack of experience of the decedent’s fellow-servants which could be considered the proximate cause of his death, or that the accident could be attributed to the negligence of an employee in charge of a nearby signal station.</p> <p>Held further, that although the burden of proof as to contributory negligence in actions brought under the Federal statute rests upon the defendant, conclusive evidence of contributory negligence was developed by the plaintiff’s case, for upon the uncontradicted evidence there was no occasion for the decedent to leave his train until it was entirely upon the main track and it was unnecessary for him to go upon the track where he was killed with his back turned toward the line of travel and by so doing he assumed the risk.</p> <p>Hubbs, J., dissents.</p>

<p>Motion for reargument of application for leave to appeal to the Court of Appeals from an order of this court affirming an order of the Supreme Court which denied defendants’ motion to dismiss a writ of certiorari.</p>

Appeal by the plaintiff, Charles P. McConnell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 18th day of November, 1918, upon the verdict of a jury rendered by direction of the court granting defendants a recovery on their counterclaim.

Appeal by the defendants, J. Alfred Pisani and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on or about the 22d day of May, 1919, upon the verdict of a jury. Plaintiff sued for wrongful discharge in which he also set forth a failure to retransfer to him an exclusive selling agency which he had passed over to defendants, when he entered their employment as manager.

<p>Appeal by the defendant, City of Mechanicville, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Saratoga on the 13th day of March, 1919, overruling defendant’s demurrer to the second cause of action set forth in the complaint.</p> <p>The issue was brought on and tried as a contested motion pursuant to section 976 of the Code of Civil Procedure.</p>

<p>Appeal by the defendants, International Railway Company 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 Niagara on the 9th day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Charles H. De Witt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of January, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of January, 1919, denying defendant’s motion for a new trial made upon the minutes.

Motion by the respondent, Mary K. Porter, to dismiss the appeal of Henry L. Bogert and others from a judgment entered upon the report of a referee.

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

<p>Motor vehicles — negligence — injury to infant by automobile — judgment for defendant affirmed — trial — improper reference to prior reversal by Appellate Division.</p> <p>Appeal from a judgment for the defendant entered on the verdict of a jury in an action to recover for personal injuries sustained by an infant who was run over by the defendant’s automobile. Evidence examined, and held, that the verdict for the defendant was warranted and that any errors committed at trial were prejudicial to the defendant rather than to the plaintiff.</p> <p>Where the Appellate Division on a former trial reversed a judgment for the defendant solely for an error of law in overruling a challenge to a juror who admitted his prejudice against actions arising out of accidents caused by automobiles and, without passing on the weight of evidence, reversed the verdict for the defendant solely for the error of law aforesaid, it was prejudicial to the defendant on a new trial for the plaintiff’s attorney to refer to the prior reversal and to request the court to charge “ that the order of the Appellate Division is to the effect that the finding of the jury that the defendant was not negligent and that the plaintiff was not free from contributory negligence be and the same hereby is reversed.” Neither the result of the prior trial nor the reason for its reversal upon appeal should have been before the jury in any way either by suggestion or charge.</p>

Appeal by the defendant, Benjamin S. Mendelson, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of February, 1919, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 17th day of February, 1919, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendants, Harper Machinery Company 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 8th day of February, 1919, 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 10th day of February, 1919, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Hudson Trust Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of February, 1919, dismissing the complaint at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 14th day of March, 1919, denying plaintiff’s motion to set aside the dismissal of the complaint and for a new trial made upon the minutes.

<p>Appeal by the defendant, Adolph Ehrlich, .from a judgment of the Court of General Sessions in and for the county of New York, rendered against him on the 23d day of October, 1918, convicting him of the crime of grand larceny in the first degree.</p>

<p>Principal and agent — action under oral agreements to recover commissions for sale of stock — evidence — verdict against weight of evidence.</p> <p>In an action by a salesman against the defendants who were engaged as ■ copartners in dealing in stocks and bonds, to recover commissions under an oral agreement between the parties, providing that the defendants were to pay the plaintiff a commission of fifteen per cent on all stocks and bonds sold by him or by them in certain territory, and also to recover under another agreement by which the plaintiff’s commissions were to be only twelve and one-half per cent, the answer was a general denial and a pl$a of payment. The defendants claimed that they did not offer for sale the stock, on the sale of which plaintiff has recovered commissions, and that the sales were made on the curb market of which they were not members, and the purchases were by a firm of curb brokers and the regular brokerage commission charged was only one-eighth of one per cent.</p> <p>Held, that the verdict in favor of the plaintiff is against the weight of the evidence.</p>

<p>Appeal by the plaintiff, Florence Jerome, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 9th day of April, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of March, 1919, denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Ships and shipping — negligence — liability of dry dock company for personal injuries to person employed on ship while returning thereto — evidence.</p> <p>In an action by the chief steward to recover for personal injuries sustained by slipping on some ice and falling between pontoon sections while returning to the ship on which he was employed, which had been placed in the defendant’s dry dock, evidence held insufficient to show that the defendant was under any obligation to provide a means of access to the ship for the plaintiff or others employed thereon, or that it owed them any greater duty than as mere licensees, or that the plaintiff exercised due care, and, therefore, the judgment in favor of the plaintiff and the order denying defendant’s motion for a new trial should be reversed and the complaint dismissed.</p>

<p>Appeal by the defendants, Harold N. Raymond and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, William C. Ralston 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 29th day of April, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1919, denying defendants’ motion for a new trial made upon the. minutes.</p>

<p>Workmen’s Compensation Law — fracture of claimant’s arm — subsequent parting of fracture not caused by any accident at time — liability of original insurer.</p> <p>Where the claimant suffered a fracture of his arm in May, and a few days after he had returned to work in September the fracture parted wbEe he was endeavoring to crank an automobile, and the evidence establishes that no injury would have resulted from cranking the automobile if it had not been for the accident in May, the entire liability must be borne by the insurer of the employee at the time of the first fracture, though in the meantime the policy expired and insurance was taken out in another company.</p> <p>Lyon, J., and John M. Kellogg, P. J., dissent, with opinion.</p>

Appeal by the defendant, Nathan Lubin, from a judgment of the County Court of Bronx county, entered in the office of the clerk of the county of Bronx on or about the 11th day of April, 1919, convicting the defendant of the crime of grand larceny in the first degree, charged as a second offense, and of criminally receiving stolen property, charged as a second offense, and also from an order of said court denying defendant’s motion for the withdrawal of a juror and for a…

Appeal by the plaintiff, The Hocking Valley Railway 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 August, 1919, granting defendants’ motion for judgment on the pleadings consisting of the complaint and answer.

Appeal by the defendant, Alphonse L. Gosselin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of November, 1919, denying defendant’s motion to strike out certain paragraphs of the complaint, and also from an order entered in said clerk’s office on the 24th day of November, 1919, denying defendant’s motion to compel plaintiff to separately state and number his causes of…

<p>Landlord and tenant — evidence insufficient to establish implied grant of easement in passageway between buildings.</p> <p>The plaintiff, after leasing a building to be used as a cigar store, made arrangements with the owner and with the lessee of the adjoining building, which was used as a saloon or restaurant, which permitted him to open a passageway so as to make a connection between his store and the restaurant, and a glass partition was constructed. Thereafter the lessee of the adjoining premises having become bankrupt, the owner thereof planned to reconstruct the building closing access to plaintiff’s store from the passageway and some window space and thereby depriving the plaintiff of such light, air and display as his store had had therefrom. The only right upon which plaintiff claims to have the passageway retained is based upon the fact that before making the lease a plan was presented to him showing the glass partition and the existence of the passageway between the two buildings, but there is no claim that said plan showed any access to the passageway from plaintiff's store. The plaintiff has a large and substantial front to his store with windows furnishing light and place for display.</p> <p>Evidence examined, and held, insufficient to establish a necessity of the passageway on the part of the plaintiff so as to form a basis of any implied grant of an easement therein.</p>

<p>Appeal by Lillie C. Marshall and others from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 12th day of June, 1919.</p>

Appeal by the defendant, Samuel Frederick Cowdrey, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of August, 1919, denying defendant’s motion for judgment on the pleadings.

Appeal by the defendant, John H. Carpenter, 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 10th day of March, 1919, upon the verdict of a jury, and also'from an order entered in said clerk’s office on the 17th day of March, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Rapid Transit Subway Construction Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of March, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of March, 1919, as resettled by an order entered in said clerk’s office on the 28th day of March, 1919, denying defendant’s motion for a new trial made upon…

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

<p>Carrier — uniform bill of lading exempting carrier from liability for delay —• when carrier not liable for increased expense of ocean transportation after accident to goods in transit.</p> <p>Where parts of locomotives were delivered to the defendant, a carrier, to be loaded on ships for export to a foreign country, under a uniform bill of lading which required the payment of a higher rate than that paid by the shipper if the carrier were to be subject to full liability as provided by common law and by statute and the bill of lading expressly provided that the carrier was not bound to transport the property in time for any particular market, or otherwise than with reasonable dispatch, unless by specific agreement indorsed thereon, the carrier is not hable to the shipper for an increase in the rate of freight for ocean transportation which took place between the time the goods were injured in transit and were repaired by the shipper through mutual agreement with the carrier and again shipped to be loaded for foreign transportation, for such liability had been released by the terms of the bill of lading.</p> <p>While in some jurisdictions a carrier cannot relieve itself from negligence even by giving a consideration, that is not the law of this State.</p>

Appeal by the defendant, Joseph Frooks, from a judgment of the Court of Special Sessions of the City of New York, entered in the office of the clerk of said court on the 25th day of August, 1916, convicting the defendant of a violation of the provisions of section 118 of the Sanitary Code of the City of New York, and also from an order denying defendant’s motion to arrest the judgment.

Appeal by the defendant, The Park & Pollard Company, from an interlocutory judgment of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1919, overruling appellant’s demurrer to the complaint.

<p>Dower — fraud — suit to set aside assignment of dower on ground that it was procured by false and fraudulent representations — evidence — appeal — right of defendant to costs on appeal from judgment dismissing complaint but finding him guilty of fraud.</p> <p>A widow in a suit to have an assignment by her of her dower in certain property set aside on the ground that it was procured through the false and fraudulent representations of the defendants to the effect that said assignment was to be held as collateral security only, demanded the following relief: (1) An injunction pendente lite restraining payment to the assignee from her dower interest which had been admeasured; (2) a reassignment; (3) an accounting.</p> <p>Held, on all the evidence that the assignment was absolute and so understood by the plaintiff at the time of its execution, and that it was not procured by false and fraudulent representations on the part of the defendants. Where the trial court dismissed the complaint as to one defendant, but without costs, on the ground that he was not a proper party, but found him guilty of fraud, so that it was necessary for him to appeal in order to secure a review of the finding of fraud, said defendant is entitled to costs of the appeal as against the plaintiff.</p>

Appeal by the defendants, Leopold Zimmermann and others, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 16th day of June, 1919, reversing a judgment of the City Court of the City of New York in favor of the defendants entered in the office of the clerk of said court on the 4th day of April, 1919, and directing a judgment in favor of the plaintiff.

Appeal by the plaintiff, Morton L. Mortimer, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1919, granting defendant’s motion for a new trial and setting aside the verdict of a jury.

Appeal by the defendant, Martin Lewis Tirrell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1919, upon a decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Harry Gordon and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of August, 1919, sustaining the plaintiff's demurrer to the second separate and distinct defense contained in the defendants’ amended answer.

Appeal by the defendant, Edgar A. Tennis, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 2d day of January, 1919, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fourth District, in favor of the defendant, entered in the office of the clerk of said court on the 20th day of May, 1918, and directing a judgment in favor of the plaintiff.

Appeal by the defendant, Samuel Rudowsky, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, entered in the office of the clerk of the said court on the 2d day of August, 1918, convicting him of the crime of grand larceny in the first degree, and also from an order entered in said clerk's office on the same day denying defendant’s motion for a new trial and in arrest of judgment.

Appeal by the plaintiff, American Aniline Products, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of August, 1919, denying plaintiff’s motion for an order sustaining its demurrer to the defenses set up in the answer, and overruling the demurrer.

Appeal by the plaintiff, Lincoln G. Valentine, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1919, vacating and annulling an order of arrest and directing the city chamberlain of the city of New York to pay to the defendant or his attorney the sum of $25,000 deposited by said defendant with the sheriff of the county of New York as a deposit instead of bail…

Appeal by Alice Green Hoffman from a decree of the Surrogate's Court of the county of New York, entered in the office of the clerk of said court on or about the 10th day of April, 1919, overruling the report of a referee in a proceeding brought by the United States Trust Company of New York for the settlement of its account as successor trustee.

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

Appeal by the defendant, The Hartford Fire Insurance 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 6th day of June, 1919, denying defendant’s motion for judgment on the pleadings, consisting of the summons and complaint, the amended answer and the reply, and for judgment on the plaintiff’s reply.

Appeal by the defendants, Jacob A. Cantor and others, .from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of May, 1919, as resettled by an order entered in said clerk’s office on the 2d day of June, 1919, denying defendants’ motion to quash a writ of certiorari to review a tax assessed upon real property.

Appeal by the defendant, Floyd J. Shutts, 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 October, 1919, granting plaintiff’s motion for reargument and upon such reargument rescinding a decision before rendered and denying defendant’s motion for a change of venue.

Appeal by the defendant, Paul E. Heller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of October, 1919, denying defendant’s motion to vacate an order entered in said clerk’s office on the 12th day of September, 1919, permitting the plaintiff to serve a summons herein upon the defendant by publication, or, in the alternative, upon the defendant personally without the…

Appeal by the plaintiff, The R. & R. Handkerchief Company, from a judgment and determination of the Appellate Term of the Supreme Court entered in the office of the clerk of the county of New York, reversing a judgment of the Municipal Court, City of New York, Borough of Manhattan, in favor of the plaintiff.

Appeal by the plaintiff, Areunah M. Brink, 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 Westchester on the 24th day of February, 1917, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of November, 1918, upon the verdict of a jury for $10,000.

Appeal by the defendant, the City of Mount Vernon, from an interlocutory judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of April, 1919, sustaining a demurrer to a separate defense set up in the amended answer.

Certiorari issued out of the Supreme Court and attested on the 7th day of December, 1918, directed to Allan J. Williams, as district superintendent of schools, and another, commanding them to certify and return to the office of the clerk of the county of Putnam all and singular their proceedings had in apportioning the payment of bonds for the construction of a high school building among certain school districts.

Cross-Appeals by the plaintiff, Thomas A. Clarke, and the defendants, Charles J. Stumpf and another, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 7th day of October, 1918, setting aside the verdict of a jury in plaintiff's favor for $1,650, and granting a new trial. The defendants appeal only from so much of said order as denies their motion to dismiss the complaint.

Appeal by the defendant, New York and Stamford Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of April, 1918, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the same day denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Katherine E. Barreto, 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 26th day of February, 1919, upon the decision of the court after a trial at the Westchester Trial Term before the court, a jury having been waived. In Beagle v. Barreto (183 App.

Reargument of an appeal by the defendant, Charles L. Craig, as comptroller, 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 27th day of February, 1919, granting a peremptory writ of mandamus requiring the defendant to pay to the relator a certain award in a street opening proceeding, with interest thereon from December 29, 1906. (See 188 App. Div. 992; 189 id. 914.)

Appeal by the defendant, Henry S. Manning, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of January, 1919, 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 in an action for fraud.

Appeal by the defendant, New York Nursery and Child’s Hospital, 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 4th day of June, 1919, sustaining a writ of habeas corpus discharging two infants from the custody of the defendant and committing them to the care of their maternal grandmother.

<p>Appeal by the plaintiff, Irene G. Brooks, 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 9th day of October, 1919, upon the decision of the court after a trial at the Kings County Special Term dismissing the complaint for want of jurisdiction over the defendant.</p>

Apfeal by the defendant, Henry Alpen, from an order and judgment of the County Court of Nassau county, entered in the office of the clerk of said county on the 23d day of July, 1918, reversing the judgment of a justice of the peace of the town of Hempstead dismissing the complaint, with costs, and dismissing defendant’s counterclaim.

Appeal by the defendant, International Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 20th day of June, 1919, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 23d day of June, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Wills — trust — devise to religious and charitable institutions after death of life beneficiary — when life tenant not entitled to recover one-half of corpus — invalid future estates.</p> <p>Where a will creates a trust for the benefit of the husband of the testatrix for life or until his remarriage, the corpus at the end of the trust to be divided equally among various religious and charitable societies, the trustee will not be required to turn over to the life beneficiary who is still living one-half of the trust property upon the theory that the devises to religious and charitable societies are only valid to the extent of one-half of the estate.</p> <p>In general a valid estate for life must terminate before a final distribution based on invalid future estates or estates in remainder.</p>

<p>Real property — pleading — complaint in action for partition — syndicate agreement creating invalid trust — title as tenants in common under invalid trust — breach of syndicate agreement not prerequisite to partition.</p> <p>A complaint in an action for partition, based upon a written instrument from which it appears that plaintiffs are members of a syndicate organized to acquire real estate upon which was to be erected an apartment house, the interest of each member of the syndicate to be evidenced by a deed of trust made by one of the defendants setting forth the respective interests of the owners, said defendant admitting in writing that she held title merely for purposes of convenience and to enable her to superintend the erection of the building and the management of the same after completion and also binding her to account to the members of the syndicate for the profits which it is alleged she refuses to do, states a cause of action.</p> <p>The trust created by the instrument aforesaid is not one of the four express trusts permitted by the Real Property Law, and as it cannot be upheld as a trust the equitable owners became tenants in common by virtue of sections 66, 91, and 99 of the Real Property Law, and hence, having a legal estate of the same quality and duration as the equitable one attempted to be created, may maintain an action for partition.</p> <p>It is immaterial that the land sought to be partitioned was not acquired until after the execution of the syndicate agreement for the instrument took full effect when title was subsequently taken in the name of the defendant.</p> <p>In order that the plaintiffs may maintain the action for partition it is not necessary that they show a breach of the syndicate agreement.</p> <p>Although such agreement also provided that a corporation might afterwards be created to take title if deemed advisable the complaint need not negative the fact of incorporation which would be a defense to be raised by answer.</p>

Appeal by the defendant, Guernsey Curran, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 25th day of September, 1918, upon the report of a referee appointed to hear and determine the issues. The first cause of action stated in the complaint was to recover an amount alleged to be due upon a contract for the construction of a road by plaintiff upon defendant’s premises.

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

<p>Appeal by the defendant, Brooklyn Steam Marble Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of June, 1919, upon a decision of the court after a trial at the Kings County Special Term.</p> <p>This suit is for the r ¿formation of a contract under seal for the sale of real property and for the specific performance of the contract as reformed.</p>

<p>Appeal by the defendant, Howard W. Cotton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of May, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying, defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Lewis Nixon, constituting the Public Service Commission, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1919, granting the relator’s application for an alternative writ of prohibition.

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

Appeal by the plaintiff, Charles L. Greenhall, as trustee, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of November, 1917, upon the verdict of a jury rendered by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 4th day of December, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Mulroy, 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 1st day of November, 1918, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Process — action against Director General of Railroads — service of summons and complaint.</p> <p>The summons and complaint in an action against the Director General of Railroads, if not served personally, must be served on an operating official, operating for the Director General of Railroads the railroad in respect to which the cause of action arose as provided by General Order 50 issued by the Director General of Railroads on October 28, 1918, and where service was not made personally the plaintiff must show, on a motion to set aside the service, that the person served was one who answered the requirements of the order.</p> <p>Id an action arising in respect to the Michigan Central railroad, service of the summons and complaint on the executive assistant to the Regional Director of Railroads, Eastern Region, does not comply with the requirements of the general order.</p> <p>Clarke, P. J., and Philbin, J., dissent.</p>

Appeal by the plaintiff, National Smelting Corporation, 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 15th day of March, 1919, upon a dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the plaintiff, Samuel Liebster, 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 November, 1919, denying plaintiff’s motion for judgment on the pleadings.

Appeal by the defendant, National Casket 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 27th day of June, 1919, upon the verdict of a jury for $5,200, 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>Insurance — liability insurance — liability of insurer to assured for amount of judgment in excess of face of policy which assured was compelled to pay — estoppel of insurer to deny liability and amount of damages where it failed to take appeal as promised.</p> <p>Where a liability insurance company assumed the defense of an action for negligence against the owner of an automobile whom it had insured, and a judgment was entered for a sum in excess of the amount in which said owner was indemnified, and the company through its attorneys promised and assured the owner that they would take an appeal and secure the reversal of the judgment, but failed to take said appeal, and the owner was first advised of such failure after the time to appeal had expired, said company, in an action by the owner to recover damages suffered by reason of the failure of the company to bring the appeal, is estopped to deny its liability, and that the plaintiff was damaged to the extent of the sum which he was compelled to pay.</p> <p>And it was not incumbent on the owner to introduce in evidence the record and minutes in the negligence action to show that a reversal would have resulted if an appeal had been taken therein, for in view of the acts and representations of the insurance company it was precluded from asserting that an appeal would have been without effect and that a reversal would not have resulted had such an appeal been taken.</p>

<p>Conversion — action against carrier for conversion of coal billed by mine owner to private consignees — defense that coal was taken by defendant under contract with mine owner — evidence — admissibility on behalf of defendant of rules and evidence to show that cars were requisitioned for fuel purposes and not commercial purposes — error in excluding evidence not cured by charge — refusal of offer of incompetent evidence where it could have been made competent.</p> <p>Where in an action for the conversion of coal alleged to have been sold by the mine owner through the plaintiff, its sales agent, to various consignees to be shipped over the defendant’s road, the defense interposed was that the defendant had a contract with the mine owner by which it obligated itself to furnish to the defendant so much of the product of its mine as the defendant might require, and that empty cars were delivered to the mine pursuant to that contract, and that when the ears were loaded the defendant took them pursuant to that contract, and the evidence showed that the manifest for each car was filled out by the mine owner to indicate that the ear was for a private consignee but that the defendant’s conductor changed each manifest so as to indicate that the coal was for the defendant and thereupon took possession of the coal and removed it, and there was a conflict in the evidence as to the nature of the contract existing between the defendant and the mine owner, it was error to refuse to permit the defendant to show its rules, required and approved by the Interstate Commerce Commission, by which the mine owner was obliged each day to specify the ears it required the following day, specifying separately those required for fuel purposes and those required for commercial purposes, and that each of the cars in question was requisitioned by the mine owner for fuel purposes, showing that they were intended for the delivery of coal to the defendant, and that the mine owner would not have been entitled to as many cars if it had requisitioned them for commercial purposes.</p> <p>The error in excluding the evidence was not corrected by the instructions of the court that if the jury found that the cars were requisitioned for fuel purposes there could be no recovery.</p> <p>The judgment cannot be sustained on the theory that the evidence which the defendant intended to introduce in support of his offer was not competent in that the requisitions for cars which were offered were filled out by the defendant’s representative on a telephonic communication from the mine owner, for the requisitions might have been made competent if the defendant had been permitted to make good his offer.</p>

Appeal by the defendant, Roger Williams Silver Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1919, denying the defendant’s motion for a new trial made upon the minutes.

<p>Sales — action to recover for goods delivered — counterclaim for breach of contract arising out of failure to deliver within time agreed — evidence — waiver of breach with respect to payments for prior deliveries — right to terminate contract for failure to pay for installments delivered.</p> <p>In an action to recover for the last shipment of goods sold by the plaintiff’s assignor to the defendant to be delivered in weekly installments, held, on all the evidence, that a judgment sustaining defendant’s counterclaim for a breach of the contract arising out of the failure of the assignor to deliver the last installment within the time agreed should be affirmed;</p> <p>That any breach with respect to payments for prior deliveries was waived by the plaintiff’s assignor.</p> <p>It seems, that if deliveries had been made in weekly installments according to the contract, recovery could have been had for the failure to pay for an installment or the contract might have been terminated on that ground.</p>

Appeal by the defendants, Max Radt 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 19th day of February, 1919.

Appeal by the defendant, Edward H. Muldoon, 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 31st day of July, 1919, denying defendant’s motion for judgment on the pleadings, consisting of a complaint, answer and reply. The opinion of Special Term is reported in Morris v. Muldoon (108 Misc. Rep. 143).

Appeal by the defendants, Leopold Erstein and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of June, 1919, 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 9th day of August, 1919, denying. defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, William C. Pearson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of May, 1919, upon the verdict of a jury rendered by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 2d day of June, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Leonard Abate, 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 April, 1917, upon the verdict of a jury rendered by direction of the court at the close of the case.

Appeal by the plaintiff, Basil Dugundji, 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 October, 1919, vacating an order theretofore granted and entered in said clerk’s office on the 21st day of February, 1919, directing the American Express Company to retain in its possession the sum of $40,000 to satisfy any judgment that the plaintiff might recover against the…

Appeal by the plaintiff, Irving O. Ball, 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 20th day of March, 1919, dismissing the complaint of the plaintiff on the merits after a trial by the court at Special Term.

Appeal in each of the above-entitled actions by the defendants, John B. Reimer and another, from a judgment of the Supreme Court in favor of the plaintiff in each action, entered in the office of the clerk of the county of New York on the 21st day of January, 1919, upon the verdict of a jury for $6,500 in the first action and for $1,500 in the other, and also from an order in each action entered in said clerk’s office on the 21st day of February, 1919, denying a motion for a…

Appeal by the plaintiffs, Lilly C. Townsend 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 23d day of October, 1919, sustaining defendant Whitacre's demurrer to the complaint. The issue was brought on as a contested motion.

Appeal by Eugene M. Travis, as Comptroller, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 18th day of June, 1918, modifying a prior order assessing a transfer tax.

• Appeal by the plaintiff, Lizzie Sínica, 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 June, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, French Over-Seas Corporation, from that part 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 26th day of November, 1919, as resettled by an order entered in said clerk’s office on the 17th day of December, 1919, granting defendants’ motion for a commission to take testimony.

Certiorari issued out of the Supreme Court and attested on the 31st day of March, 1919, directed to Thomas J. Drennan, as commissioner of the fire department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular certain proceedings had before him in dismissing Maurice J. McCarthy from employment as an engineer of steamers in the fire department of the city of New York.

Appeal by the Jamaica Consumers Ice 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 22d day of December, 1919, granting the motion of the petitioner that the election of directors of the Jamaica Consumers Ice Company be set aside and declared irregular.

<p>Motor vehicles — negligence — death of infant by starting of electric truck by companion — erroneous nonsuit — opening of counsel stating facts which would raise question for jury.</p> <p>In an action to recover for the death of a child five years of age who was killed by the defendant’s automobile it was error to nonsuit the plaintiff on the opening of his counsel wherein he stated that he would show that the defendant had been in the habit of leaving electric motor trucks in front of its place of business with knowledge that boys of the neighborhood were accustomed to play on or about the cars; that the defendant had allowed them to do so without molestation; that while the plaintiff’s intestate was sitting on the front fender of the ear another boy, who had mounted the seat, pressed a button which started the electric vehicle with the result that it ran into a vehicle ahead; that a switch which would have prevented the starting of the car had not been opened, and that the brakes of the automobile were worn and defective to the knowledge of the defendant. Proof of such facts would have raised a question for the jury as to whether the defendant was guilty of negligence that was the proximate cause of the death, and it cannot be said as a matter of law that the infant decedent was guilty of contributory negligence.</p>

<p>Appeal by the petitioner, Max Grober, from that part 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 3d day of October, 1919, denying said petitioner’s application for the acceptance of his answer or for leave to intervene as a defendant.</p>

Appeal in the first action by the defendant, John Volz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1919, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of April, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Brooklyn Alcatraz Asphalt Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of June, 1919, upon the report of a referee appointed to hear and determine the issues.</p>

Appeal by the defendant, The National Bank of Whitehall, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 19th day of September, 1919, upon the decision of the court rendered after a trial at the Saratoga Special Term sustaining the demurrer of the plaintiff to the first, second and third defenses in the amended answer.

Appeal by the defendants, Frederick W. Parsons and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 27th day of June, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of June, 1918, denying defendants’ motion for a new trial made upon the minutes.

<p>Depositions — commission to take testimony of witness without State — res inter alios acta — willingness of plaintiff to commit arson for another person.</p> <p>Where defendants, sued on policies of fire insurance, allege as a defense that the fire was caused by the intentional act of the plaintiff for the purpose of cheating and defrauding the defendants, a commission to take the deposition of a witness without the State will not be granted for the purpose of proving that two years before the fire the plaintiff was willing to commit a similar crime on behalf of the witness sought to be examined, for the testimony would only establish an independent crime not connected with the crime charged and hence would be inadmissible.</p> <p>The two crimes committed in relation to different properties owned by different people and at times so remote from each other that they are not part of one general scheme do not show a common motive or intent.</p>

Certiorari issued out of the Supreme Court and attested on the 12th day of June, 1919, directed to Walter H. Knapp and others, as and constituting the State Board of Tax Commissioners of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in the matter of the assessment of the relator or connected with the refusal of said board to cancel and annul said assessment against the…

<p>Appeal by the plaintiff, Philadelphia Motor Tire Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 21st day of October, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of October, 1919, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Nicholas J. Quirk, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 22d day of November, 1919, vacating and setting aside a judgment in favor of the plaintiff and granting defendant’s motion for a new trial.

<p>Workmen’s Compensation Law — when award to infant brother and to grandfather not justified.</p> <p>In a proceeding under the Workmen’s Compensation Law for an award for the death of an unmarried man twenty-two years of age who lived with his parents and paid board, it was improper to make an award to an infant brother of the decedent who lived in the family, where it appeared that the income of the father together with the earnings of two infant children to which he was entitled made over sixty dollars per week available for the support of his family of five members, exclusive of the decedent.</p> <p>So, too, it was improper to make an award to the grandfather of the decedent who lived with his wife in another house which she owned, there being no evidence that he was not able to support his wife or that he was dependent on the alleged contributions of the decedent, consisting of occasional gifts of small amounts.</p> <p>It is immaterial that the grandmother was endeavoring to pay off a mortgage on the house owned by her, for it is not the purpose of the Workmen’s Compensation Law to provide money for the payment of debts of alleged dependents.</p>

Appeal by the plaintiff, Benjamin Melita, from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Fulton on the 21st day of May, 1919, upon the verdict of a jury, and also from an order . entered in said clerk’s office on or about the same day denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Southern New York Power and Railway Corporation, from an award of the State Industrial Commission, made on the 1st day of July, 1919, and entered in the office of said Commission.</p>

Appeal by the defendants, The Kingston Shipbuilding Corporation and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 1st day of July, 1919.

Appeal by the defendants, Haberle-Crystal Spring Brewing Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 27th day of June, 1919.

Appeal by the defendant, The Independent Order of Foresters, 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 29th day of July, 1919, upon the decision of the court rendered after a trial at the Washington Trial Term, a jury having been discharged.

Appeal by the plaintiffs, William Miller and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 23d day of April, 1919, upon the decision of the court dismissing the complaint at the close of the plaintiffs’ case, both parties having moved for a direction of a verdict.

<p>Workmen’s Compensation Law — injuries arising out of employment — injury to night watchman while working in elevator shaft — award affirmed.</p> <p>In a proceeding under the Workmen’s Compensation Law it appeared that the claimant, who was employed as a night watchman by a manufacturer of chewing gum, received a severe blow on the head which rendered him unconscious at a time when he was working at the bottom of an elevator shaft gathering rubbish to light the boiler fires. The claimant was unable to describe the cause of the accident and no one was present when it occurred, but the circumstances were such that he might have easily struck his head against some portion of the building or structures therein, and in the report of the injury the employer treated the occurrence as an accident. Held, that the claimant’s injuries arose out of his employment and that, therefore, the award should be affirmed.</p>

Appeal by the plaintiff, Standard Slide Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of December, 1919, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by Emma Beyer from an order of the Surrogate’s Court of the county of New York, entered in the office of the ■clerk of said court on the 23d day of June, 1919, affirming an order fixing and assessing the tax upon the transfer of the property of the decedent under the law in relation to taxable transfers of property.

Appeal by the defendant, Jacob Brody, 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 13th day of May, 1919, upon the decision of the court after a trial at the New York Special Term.

Appeal by the plaintiff, H. Muller & Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the •county of New York on the 25th day of July, 1919, denying plaintiff’s motion for judgment on the pleadings.

Appeal by the plaintiff, Lawrence F. Heaphy, 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 24th day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William Schwen, 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 25th day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Beaver Company, from an order of the Supreme Court, made at the Saratoga Trial Term and entered in the office of the clerk of the county of Saratoga on the 11th day of August, 1919, denying a motion of the defendant to change the place of trial.

Appeal in the first action by the defendant, Louis 8. Gran- ' dall, substituted trustee, etc., 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 Rensselaer on the 21st day of October, 1919, granting leave to the plaintiff to make, file and serve a proposed supplemental complaint.

<p>Wprkmen’s Compensation Law — agreement to paint windows for fixed price — independent contractor — award for death not authorized.</p> <p>A person who followed the trade of housepainting when not otherwise engaged, and who agreed to paint the windows of an apartment house for a fixed sum, and who used his own brushes and worked in his own manner, was an independent contractor and not within the Workmen’s Compensation Law, and his dependents are not entitled to an award for his death against the person for whom he worked.</p>

Appeal by the defendant, Louis Wasserman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 27th day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Union Gas Company, from a decision and award of the State Industrial Commission, entered in the office of. said Commission on or about the 15th day of August, 1919.

<p>Appeal by Henry L. Armstrong, as executor, etc., of Mary Emma Armstrong, deceased, from an order of the Surrogate’s Court of the county of Chemung, entered in the office of said surrogate on the 11th day of June, 1919, directing Henry L. Armstrong, as trustee of Mary Emma Armstrong, deceased, to account to the petitioner for the income of one-fourth of the value of certain real property given to the appellant in trust, and also directing him to render and file an account of his proceedings as trustee.</p> <p>Appeal by the petitioner, Grace H. Wentworth, as executrix, etc., of John W. Wentworth, deceased, from an order of the Surrogate’s Court of the county of Chemung, entered in the office of said surrogate on the 11th day of June, 1919, denying the petitioner’s motion for permission to reopen the case and introduce further evidence, and also from an order and decision of the said Surrogate’s Court, entered in the office of said surrogate on the same day, in so far as said decree and order hold that the income upon the trust fund, to which the petitioner is entitled, should be figured only at four per cent, and that the petitioner is not entitled to interest on the said income with annual rests and to an allowance from the principal of said trust fund.</p>

<p>Libel — letter to employer charging employee with dishonesty — erroneous charge — qualified privilege of informer — burden on plaintiff to show malice — damages may be recovered on proper proof although communication was qualified privilege.</p> <p>In an action to recover for an alleged libel contained in a letter wherein the defendant informed the employer of the plaintiff, who was engaged as a ticket agent in a subway in the city of New York, that the plaintiff was dishonest and that the defendant had seen her delay passengers standing in line so that they threw down their money and went into the subway without passing through the turnstile, resulting in a financial gain to the ticket agent, it was error for the court to charge that the questions of privilege claimed by the defendant in his answer or the truth of the libel should not be considered by the jury and that the only question was the amount of damages.</p> <p>As the facts of the occasion were not in dispute the court should have determined that the occasion was one of qualified privilege which the law extends to a volunteer who informs another person of a crime committed or threatened to be committed against his person or property. The basis of such qualified privilege is public policy and interest on the part of the person giving the information is not essential.</p> <p>However, such qualified privilege, although it excludes the presumption of malice, does not give the defendant absolute immunity, but merely casts upon the plaintiff the burden of establishing malice, though mere proof of the falsity of the charge is not sufficient.</p> <p>If the plaintiff establishes malice, then, despite the qualified privilege, damages may be recovered, and even punitive damages as well.</p>

Appeal by the defendant, Pioneer Pearl Button 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 18th day of November, 1919, denying defendant’s motion to change the place of trial to Dutchess county, and granting plaintiff’s motion to retain the case in the county of New York on the ground of the convenience of witnesses.

<p>Attorney and client — suit by attorney for accounting and establishment of lien — evidence — dismissal of complaint erroneous.</p> <p>The plaintiff,, an attorney, who had rendered professional services for the defendant and advanced money on her behalf and had received a certain certificate of stock under an agreement that he was to hold said stock as collateral security for moneys expended and for services rendered and to be rendered, brought a suit to have the account between himself and the defendant judicially settled and the amount due him fixed and determined, to have a lien adjudged to exist in his favor on the said certificate of stock, and a time fixed when the defendant should pay the balance due, and that in default thereof the said certificate of stock be sold and the plaintiff’s lien satisfied. On all the evidence,</p> <p>Held, that the plaintiff established every allegation of the complaint and was entitled to the judgment demanded.</p> <p>It was error for the court to dismiss the complaint on the theory that the plaintiff failed to prove that the defendant, an old lady, was advised of the terms and effect of the collateral security agreement, first, because that issue was not raised by the pleadings and second, because the evidence established that said agreement was the free and voluntary act of the defendant and that she fully understood the tenor and effect thereof.</p>

<p>Appeal by the plaintiff, Land Value Refunding Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1919, denying plaintiff’s motion for a discovery and inspection of defendant’s books.</p>

<p>Appeal by the plaintiffs, Leon Tanenbaum 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 17th day of October, 1919, overruling plaintiffs’ demurrer to the first separate defense in the answer.</p>

<p>Trial — change o£ place of trial — action to recover damages arising out of failure of public officer to perform duty —• change of place of trial to county in which action arose as matter of right — necessity for service of written demand for change as condition precedent to granting motion — laches in making motion.</p> <p>The defendant, in an action to recover damages arising out of his failure to perform his duty as a public officer, is not entitled as a matter of right, by virtue of section 983 of the Code of Civil Procedure, to have the place of trial changed to the county in which the cause of action arose.</p> <p>So the place of trial will not be changed on the motion of the defendant where he did not at any time, pursuant to section 986 of the Code of Civil Procedure, serve a demand on the plaintiff’s attorney that the trial be held in the county in which the cause of action arose as provided by section 983 of said Code, where the motion was made not only under that section but also under section 987, subdivision 1, of said Code.</p> <p>While conditions may develop after the joinder of issue that call for the relief contemplated in subdivisions 2 and 3 of section 987 of the Code of Civil Procedure and in such event the court may in its discretion grant the application, though no written demand has been made for a change of place of trial, still if the facts exist before the joinder of issue the provisions of section 986 of the Code of Civil Procedure in reference to the service of a written demand must be followed before a motion can be granted.</p> <p>It seems, that the place of trial should not be changed where the defendant has been guilty of laches in making his application.</p>

<p>Appeal by the plaintiff, John Weider, from a determination and order of the Appellate Term, First Department, entered in the office of the clerk of the county of New York on the 10th day of June, 1919, reversing a judgment of the Municipal Court, Borough of Manhattan, First District, in favor of the plaintiff.</p>

<p>Trust — testamentary trust authorising trustee to invest sum of money and apply income to specified purposes — trustee entitled to interest from death of testator — rule that general legacies shall not draw interest until one year after testator's death not applicable.</p> <p>Under a testamentary trust giving the trustee during his life the right to invest a certain sum of money and apply the income to certain specified purposes, and further providing that said legacy should bear its proportionate share of Federal and State inheritance taxes, the rule that general legacies shall not draw interest until one year after the testator’s death does not apply, and the trustee is entitled to the income, after deduction of taxes, earned the first year after the death of the testator.</p>

Appeal by the defendants, Isadore Kasenetz and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 25th day of June, 1919.

John M. Kellogg, P. J. (dissenting): The intestate, a policeman, while riding on the front platform of a trolley car, was killed by a collision between that car and an engine upon the defendant’s road. The principal question litigated was whether the defendant was negligent in the management of the gates at the crossing, the plaintiff alleging that the gates were not lowered, while the defendant claimed to the contrary.

Motion denied. Order affirmed on the opinion of Whitmyer, J., at Special Term (reported in 107 Misc. Rep. 48), and on the authority of People ex rel. Kohler v. Kidney (223 N. Y. 666). All concur, except John M. Kellogg, P. J., dissenting, with a memorandum.

Appeal by the contestant, Edward J. Woodhams, from part of a decree of the Surrogate’s Court of the county of Monroe, entered in the office of said Surrogate’s Court on the 29th day of April, 1919, in a final accounting of the executor of the will of James Woodhams, deceased.

<p>Appeal from a judgment of the Supreme Court, entered in the Erie county clerk’s office July 23, 1918.</p>

AppHcation for an order staying the trial of this action pending an appeal from an order of the Supreme Court, made at the Niagara Trial Term denying plaintiff’s motion for an order directing that certain defenses and counterclaims be separately tried.

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

<p>New trial — where verdict not sustained by preponderance of evidence.</p>

<p>Judgment of the County Court of Queens county affirmed, with costs.</p>

<p>Award affirmed. All concur, except H. T. Kellogg, J., dissenting, with a memorandum.</p>

Interlocutory judgment affirmed, with costs, with leave to the defendant to serve an answer within twenty days, on the payment of such costs and of the costs included in said judgment. All concur, except John M. Kellogg, P. J., dissenting with a memorandum in which H. T. Kellogg, J., concurs.

Appeal by the plaintiff from a judgment of the Supreme Court, entered in the Erie county clerk’s office June 23, 1919, dismissing plaintiff’s complaint upon the merits, with costs, after a trial at the Erie Special Term.

<p>Injunction — continuing injunction pending trial.</p>

Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiffs, entered in the New York county clerk’s office April 18, 1919, canceling and rescinding the contract made between plaintiffs and defendant and awarding to the plaintiffs the return of the moneys paid under said contract, and $250 damages.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office December 29, 1919, denying the defendant’s motion to set aside the service of the summons and complaint.</p>

Order affirmed, with ten dollars costs and disbursements, with leave to plaintiffs to serve an amended complaint on payment of said costs and the costs awarded to defendant by the order appealed from, upon the authority of Peetsch v. Sommers (31 App. Div. 255), and Barton v. Palmer Co. (87 id. 35).

Appeal by plaintiff from a judgment of the Supreme Court in favor of defendants, entered in the office of the clerk of Westchester county on June 27, 1919, for $95.03 costs; and also from an order entered on July 21, 1919, which denied plaintiff’s motion for a new trial. The complaint sought to recover $960 fines for illegal sales of intoxicating liquors on three successive Sundays, namely, August 18, August 25 and September 1, 1918.

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

<p>Trial — when resettlement of order changing venue denied.</p>

<p>Appeal from a judgment of the Supreme Court, entered in Erie county clerk’s office, May 5,1919, upon the verdict of a jury in favor of the defendant for $16,314.67, damages and costs, and also from an order entered May 22, 1919, denying plaintiff’s motion for a new trial.</p>

<p>Appeal — motion for reargument—leave to appeal to Court of Appeals.</p>