Volume 191 — New York Appellate Division Reports

Appeal by the defendant, West 67th Street Garage, Inc., from an order and determination of the Appellate Term ; of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 17th day of July, 1919, reversing a judgment of the Municipal Court, Borough of Manhattan, Ninth District, in favor of the I defendant.

Appeal by the defendants, The Chevrolet Motor Company and another, from an award of the State Industrial Commission, entered in the.office of said Commission on the 31st day of July, 1919, and also from an award entered in the office of said Commission on the 16th day of April, 1919.

Appeal by the defendants, American Society for the Prevention of Cruelty to Animals and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 8th day of September, 1919. The deceased employee, John G. White, was an ambulance driver for the appellant American Society for Prevention of Cruelty to Animals. The cause of his death was anthrax.

Appeal by the defendants, Great Lakes Transit Corporation and another, from an award of the State Industrial Commission, filed in the office of said Commission on the 15th day of July, 1919.

Appeal by the defendants, George Haiss Manufacturing Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 16th day of June, 1919.

Appeal by the defendant, Central and Western New York Brewers and Malsters Mutual Insurance Company, from an award of the State Industrial Commission, entered in the office of said Commission on or about the 21st day of July, 1919.

Appeal by the plaintiff, John M. Nelson, 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 3d day of March, 1919, upon the verdict of a jury rendered by direction of the court, both parties having moved for the direction of a verdict, and also from an order entered in said clerk’s office on the 21st day of February, 1919, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Foran Foundry and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Bronx on the 16th day of August, 1919, upon the decision of the court rendered after a trial at the Bronx Special Term.

<p>Appeal by the plaintiffs, Abraham L. Scheff and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of January, 1920, denying plaintiffs’ motion to vacate an order for the examination of a witness before trial.</p>

<p>Appeal by the defendant, Franklin Knitting Mills, 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 26th day of May, 1919, overruling the defendant’s demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings.</p>

<p>Appeal by Emil Harry Adler, as administrator, etc., from a decree of the Surrogate’s Court of the county of Bronx, entered in the office of said court on the 17th day of June, 1919, made in proceedings for the discovery of assets of the decedent pursuant to sections 2675 and 2676 of the Code of Civil Procedure, directing the appellant to deliver to the respondents certain personal property.</p>

<p>Deeds — restrictive covenants in deed and contract of sale construed ■— vendor and purchaser — marketable title — land subject to restrictive covenants.</p> <p>On the submission of a controversy upon an agreed statement of facts in which the point presented for decision was whether the title of the defendant to certain premises which by a contract in writing he agreed to convey to the plaintiff’s assignor was such that he could convey, the fee simple of the premises free of all incumbrances, it appeared that the premises in question were known as lot 16 in a block of land containing twenty-one lots; that a predecessor in title of the defendant entered into a contract to purchase the entire block which contract contained restrictive covenants, not limited in time, as to the character and size of the buildings to be erected on the lots and the cost thereof, and also a covenant concerning the opening and grading of the street; that the deed for said block, with the exception of lots 4 and 5, was executed and delivered on the same day as the agreement and both were recorded on the same day but it did not appear that they were executed simultaneously; that said deed contained restrictive covenants of a different character which were limited to run for ten years and had expired before the contract herein was executed; that the deed to the defendant of lot 16 was subject to the restrictions and covenants contained in the prior deeds and in the said agreement; and that since the execution of said agreement the character of the neighborhood had materially changed.</p> <p>Held, on the facts submitted that it cannot be said that the agreement was void and unenforeible;</p> <p>That the agreement and the deed of the block are open to the construction that the restrictions in the deed were intended to supplement those in the agreement, and that the restrictions in both instruments were intended to be operative;</p> <p>That the change in the character of the neighborhood did not invalidate the restrictive covenants and operate to remove the incumbrance imposed thereby, but the only effect was to preclude a suit for equitable relief for the enforcement thereof;</p> <p>That the facts are insufficient to show that the restrictions contained in the said agreement have ceased to be operative and the question of law arising on the facts is not so free from doubt that it may beheld that the defendant has a good and marketable title and his title is not such, therefore, that he can convey “ the fee simple, of the said premises, free of all encumbrances.”</p>

<p>Appeal by the defendants, Anielo Aquino 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 14th day of December, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of December, 1918, denying defendants’ motion for a new trial made upon the minutes.</p> <p>Since the entry of the judgment and order appealed from Giovanni Aquino, who was the defendant in the action, died and his executors were by order of the court substituted in his place as the defendants in this action.</p>

Appeal by the plaintiff, Harry M. Levy, 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 January, 1919, setting aside a verdict and directing a new trial.

Appeal by the plaintiff, Harry M. Levy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1919, denying plaintiff’s motion to vacate and open an order dated January 23,1919, setting aside the verdict and granting a new trial.

<p>Executors and administrators — jurisdiction—-action against foreign executor — service of summons personally within State — Code of Civil Procedure, section 1836-a, construed—constitutional law.</p> <p>Section 1836-a of the Code of Civil Procedure, in so far as it relates to actions against foreign executors, is not limited to the same classes of actions that are authorized by section 1780 to be brought against foreign corporations.</p> <p>The courts of this State, by virtue of section 1836-a of the Code of Civil Procedure, acquire jurisdiction of a foreign executor in an action at law, by the service of the summons on him personally within this State, though there is no property of the estate within this State.</p> <p>The jurisdiction of a State within its own territory is exclusive and absolute, and so the power of this State to confer jurisdiction on the courts over foreign executors is not affected by the fact that the State of the executor’s residence or appointment has not authorized him to be sued in a foreign jurisdiction.</p> <p>There is no merit in the contentions of the defendant on a motion to have the summons and its service set aside and vacated in an action against a foreign executor who was served personally within this State, that the service was not made on any person authorized to act as executor of the decedent’s estate within this State; that the attempted service did not constitute due process of law; that the service of the summons can have no effect to confer jurisdiction on the court over the executor; that a judgment in the action would deprive the executor and the estate and the persons entitled to any portion thereof of their property without due process of law, in violation of the Federal Constitution, and that no judgment in the action would be entitled to full faith and credit under the Federal Constitution.</p> <p>Laughlin, J., dissents, with opinion.</p>

<p>Injunction — trade name — dissimilarity of names of corporations — evidence.</p> <p>The plaintiff was not entitled to an injunction against the defendant restraining it from using or doing' business under the name “ Material Men’s Credit Agency, Inc.,” where there was no evidence that the stationery or any printed matter of the plaintiff had been imitated, or that any representation had been made by the defendant that the two corporations were identical, or that any one had been deceived into the belief that the defendant and the plaintiff were the same.</p> <p>The plaintiff did not have the exclusive right to the use of the words “ Material Men’s ” for those words are not descriptive of the plaintiff but of a class of business men whom it serves.</p> <p>The words “ credit agency ” are not so similar to the words “ mercantile association” that when used in connection with the words “ Material Men’s ” they would tend to deceive the public into believing that the plaintiff and the defendant were the same.</p> <p>It was improper to admit in evidence on behalf of the plaintiff envelopes addressed by its customers to it at its correct office address and received by it there, though the name of the plaintiff on the several envelopes was incorrect and variously worded.</p>

Appeal by Isabella Patterson and others from a decree of the Surrogate’s Court of the county of Bronx, entered in the office of said court on the 20th day of May, 1919, admitting to probate as the last will and testament of Margaret McGill, deceased, a paper writing bearing date of September 23, 1916, and dismissing the objection to the probate thereof, with notice of intention to bring up for review the intermediate order made and dated the 27th day of November, 1918,…

<p>Pleadings — action for violation of contract — copy of contract annexed to and made part of complaint — variance between, contract and allegations of complaint — determination of sufficiency of complaint on motion to dismiss at opening of trial — validity of contract between promoters for organization of corporation.</p> <p>Where a cause of action is for a violation of a contract which is by appropriate reference made a part of the complaint, if there is a variance between the contract and the allegations of the complaint, the terms of the contract must control.</p> <p>On a motion at the opening of the trial to dismiss the complaint for insufficiency it will be deemed to be sufficient whenever the requisite allegations can be fairly gathered from all the averments and will be held to state all the facts that can be implied from the allegations by a reasonable and fair intendment.</p> <p>Complaint in an action for the violation by the defendants of an agreement between promoters to organize a corporation, acquire property and finance the proposition, the plaintiff to secure the property, the defendants to finance it, and for a division of the stock to be issued, examined, together with the contract annexed to the complaint, and held to state a cause of action.</p> <p>An erroneous allegation of damage predicated upon present valuation of non-existent stock is immaterial, as the defendants having interposed an answer the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issues.</p> <p>The aforesaid contract was not unlawful or void as against public policy.</p> <p>Where the defendant is sufficiently apprised of the issue tendered and has made answer thereto and delayed until the case is called for trial and then challenged the sufficiency of the complaint by motion, the court will give full force and effect to the rule that the allegations of the pleading must be liberally construed with a view to substantial justice between the parties.</p>

<p>Appeal by the plaintiff, Clinton Gilbert, 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 31st day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of May, 1919, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiffs, Max Lazarowitz and another, 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 3d day of February, 1920, denying plaintiffs’ motion to place the case upon the special calendar for trial.

<p>Landlord and tenant — effect on subtenant’s rights of surrender of principal lease to owner of fee ■—• attornment—• acceptance of rent from subtenant after surrender of principal lease — right to dispossess subtenant.</p> <p>The surrender by a lessee of his lease to the owner of the fee and the consequent merger of the greater and lesser interest terminates the lease as between the parties, but the interest and term of a subtenant of the lessee continues as if no surrender had been made, and the owner of the fee has such rights only as the lessee would have had before the expiration of his term.</p> <p>Where the purchaser of the fee accepts the rent from a subtenant there is an attornment of the subtenant to the new landlord under the existing lease, though the tenant had surrendered the lease of the entire property to the vendor prior to the sale.</p> <p>. Accordingly where the lease of a building, containing permission to sublet, provided that in case the landlord should enter into a contract for the sale of the premises he should have the right to terminate the lease on twenty days’ notice, and the premises were sold on the day of the surrender of the lease but without the landlord terminating it, the new owner could not dispossess the sublessee on a five days’ notice in summary proceedings on the ground that he was holding over after the expiration of his lease.</p> <p>It seems, that, if the first owner had proceeded to cancel the lease under the twenty-day clause therein, the cancellation of the principal lease would have canceled the sublease and the subtenant if he had remained in possession thereafter would have been holding over.</p>

<p>Attachment — grounds on which senior attachment will be vacated at instance of junior attaching creditor — irregularities in papers not sufficient—when senior attachment will not be vacated because affidavit on information and belief.</p> <p>In the absence of fraud or collusion, only defects which are jurisdictional and which so affect the proceedings as to make them a nullity are available to a junior attaching creditor who seeks to set aside a prior attachment; such creditor cannot move as a defendant can, upon the existence of irregularities in the papers.</p> <p>Section 682 of the Code of Civil Procedure, providing that “ the defendant, or a person who has acquired a lien upon or interest in his property after it was attached, may * * * apply to vacate or modify the warrant * * was intended merely to state the existing law and did not confer any new rights on a junior attaching creditor.</p> <p>A senior attachment will not be vacated at the instance of a junior attaching creditor on the ground that the affidavit in the senior attachment proceedings stated upon information and belief that the defendant was a foreign corporation without giving the grounds of the affiant’s information and belief, where it is stated that the defendant admitted in its answer that it was such foreign corporation and the allegations as to the nature of the cause of action and the amount due were stated positively, and it appears also that the senior attachment was issued with the consent of the defendant.</p> <p>Where the question arises between two attaching creditors as to which shall have priority, if it appears presumptively that the plaintiff has a cause of action, such as is specified in section 635 of the Code of Civil Procedure, and that the defendant is a foreign corporation, the plaintiff, being prior in time, has the prior right, unless it appear that his preference has been secured by fraud or collusion. If there are two theories sufficiently alleged upon which a recovery for the plaintiff may be sustained, it is immaterial that there are others that are not so stated.</p>

Motion by the plaintiffs, Armin Bencoe and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the dismissal of the complaint and the denial of a motion of the plaintiffs to go to the jury at the close of the plaintiffs’ case, upon a trial before the court and a jury at the New York Trial Term in October, 1918.

Appeal by the defendant, The Berwind-White Coal Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on.the 1st day of August, 1918, overruling the demurrer to the amended complaint brought on as a contested motion under section 976 of the Code of Civil Procedure.

<p>Attachment — action to recover for refusal of buyer to accept goods — affidavit to state facts showing damages — when affidavit on information and belief insufficient — affidavit as to market value of goods several months after breach — affidavit by assignee insufficient to show ownership — motion to vacate attachment.</p> <p>The affidavits upon which an application for a warrant of attachment is made in an action where the damages are unliquidated, must set out the evidence which the plaintiff claims proves his damages.</p> <p>An affidavit as to damages on an application for a warrant of attachment in an action to recover for the refusal of a buyer to accept the goods purchased, is defective where the complaint alleges the market value of the goods on information and belief and the affidavit is to the effect that the fan and reasonable market value of the goods according to the best information of the deponent is the sum stated in the complaint, and that the allegation as to the market value is based on inquiries in the trade, and there is no allegation as to why the affidavit was not made by persons in the trade having knowledge of the market value.</p> <p>The damage of the seller must be estimated upon the market value at the time of the refusal to accept, and where there is no allegation in the complaint as to when the buyer refused to accept the goods, an affidavit on an application for a warrant of attachment as to the market value of the goods ten months after the contract was made, in the absence of some facts showing what the market value was at the time of the refusal to accept the goods, is not sufficient to show that the plaintiff has suffered any damage by reason of the defendant’s default.</p> <p>The affidavit of the assignee of the defendant on his application to have the warrant of attachment, issued in favor of the plaintiff, vacated on the ground that at the time of the attachment the goods attached belonged to said assignee, examined, and held, insufficient to show ownership of the property.</p> <p>Because of the insufficiency of the aforesaid affidavits, a motion by the defendant to vacate a warrant of attachment against him should be granted, and a motion by his assignee for the same relief should be denied.</p>

<p>Appeal by the defendant, Den Norske Handelsbank, 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 October, 1919, denying defendant’s motion to vacate a warrant of attachment or to modify it by reducing the amount thereof.</p>

<p>Tax — transfer tax — domicile of decedent — burden of proof — facts insufficient to show change of domicile.</p> <p>The domicile of origin is presumed to be retained, and the burden rests upon the party asserting another domicile to establish that the domicile of origin was abandoned or changed.</p> <p>The facts that the decedent, whose domicile of origin was in New York, lived part of the year in Massachusetts, for several years paid personal and poll taxes there, registered and voted there at least once, and in his will recited that he was a resident there, does not show a change of domicile from New York to Massachusetts. These facts taken together show a desire to have a domicile in Massachusetts, but that is not sufficient; there must be in fact a change of domicile.</p> <p>On all the evidence, held, that the decedent never changed his domicile from New York to Massachusetts and that his personal estate was subject to a transfer tax in this State.</p>

<p>Appeal by Gertrude B. Corwin and others from an order of the County Court of the county of Orange, entered in the office of the clerk of said county on the 4th day of April, 1919, denying a motion to dismiss the proceeding herein, and granting an application for the appointment of commissioners to estimate and assess the expenses of a sewer constructed in the city of Middletown and to determine what real estate will be benefited by such improvement.</p>

Appeal by the relator, Frank J. Hand, 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 28th day of November, 1919, denying an application for a peremptory writ of mandamus commanding that the prison board of Sing Sing Prison convene and determine the amount of compensation which they shall recommend to be allowed to the petitioner, and that, upon such recommendation being made,…

<p>Tax — transfer tax — will giving wife power of appointment — original tax to be assessed as if power were not exercised — refund on exercise of power of appointment — interest on tax returned — trustee may proceed by certiorari.</p> <p>Where a testator bequeathed his residuary estate in trust, income to his wife for life, with remainders over on her death, and gave her a power of appointment to dispose of a certain amount of the residuary estate by will, it was proper in assessing a transfer tax to impose the same in the first instance as if the widow would not exercise her power of appointment, and under section 230 of the Tax Law when the widow in fact dies having exercised the power of appointment by will, the Comptroller is required to return to the proper persons such amount of the tax as will reduce the same to the amount which would have been assessed if the contingency had occurred before the assessment.</p> <p>Where the Comptroller, after the exercise of the power of appointment, has been ordered by the court to reduce the tax previously assessed and to repay a portion thereof, it is proper to require the payment of interest on the amount refunded where the original tax was paid at a time when section 225 of the Tax Law was silent as to interest.</p> <p>The amendment of section 225 of the Tax Law made in the year 1907 so as to provide that the refund required by that particular section should not carry interest, was expressly limited to that section, and under section 241 of the Tax Law, as amended in the year 1911, the State is required to pay interest on refunds.</p> <p>Under section 241 of the Tax Law, as amended, the trustee is a proper party to institute proceedings by mandamus to obtain a refund of the tax previously paid.</p>

<p>Cebtiobabi issued out of the Supreme Court and attested on the 24th day of May, 1919, directed to Walter H. Knapp and others, as members of and constituting the State Tax Commission, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in confirming an account audited and stated against the relator for taxes under sections 181 and 182 of the Tax Law for the tax year beginning November 1, 1916. (See Tax Law, § 181, as amd. by Laws of 1915, chap. 317; since amd. by Laws of 1917, chap. 490; Tax Law, § 182, as amd. by Laws of 1916, chap. 333.)</p>

<p>Husband and wife — separation agreement — action to recover payments — defense that husband’s income had decreased and wife’s income increased since execution of agreement.</p> <p>It is no defense to an action on a separation agreement brought in the Municipal Court of the City of New York, a court of inferior and limited jurisdiction, to recover the amount stipulated to be paid by the husband, that since the execution of the agreement the husband’s income has been greatly reduced and the income of the wife has increased, though the parties stipulated in the separation agreement that “ in the event that there should be any material change in the circumstances of either of the parties hereto either party hereto shall have the right to apply to any court of competent jurisdiction for a modification of the provisions herein regarding the amounts to be paid hereunder by the party of the first part to the party of the second part hereto.”</p> <p>The change in the financial condition of the parties to the agreement did not abrogate the stipulation as to the amount to be paid to the wife and the court had no power to decree a lower sum to be paid monthly than that which the husband agreed to.</p> <p>Smith, J., dissents.</p>

<p>Appeal by the defendants, Henry De Ronde 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 15th day of September, 1919, upon the decision of the court after a trial without a jury.</p>

Appeal by the defendant, Jennie S. Walker, 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 5th day of June, 1919, denying defendant’s motion to vacate and set aside an order for the service of the summons by publication. The day after» the issue of a warrant of attachment, on March 27, 1919, an order for publication was granted.

<p>Process — service of summons by publication — action in which attachment granted—moving affidavits as to residence insufficient.</p> <p>Order for the service of summons by publication in an action in which an attachment had been granted reversed because the moving affidavits failed to show that at the time the order was granted the defendant was still a resident, but indicated that she had changed her residence to another State, and also because her presence in a foreign State was not shown to be more recent than December, 1918, leaving her whereabouts for the last three months unaccounted for.</p>

Appeal by the defendant, Jennie S. Walker, 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 5th day of June, 1919, denying defendant’s motion to vacate a warrant of attachment issued on March 26, 1919, against the defendant, purporting to be issued under section 636 of the Code of Civil Procedure.

Appeal by the plaintiffs, Mazy F. Ryan and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 14th day of August, 1919, upon the decision of the court rendered after a trial at the. Kings County Special Term, and also from an order entered in said clerk’s office on the 15th day of August, 1919, denying plaintiffs’ motion for leave to amend their complaint and to reopen the trial

Appeal by the defendant, Title Guarantee and Trust Company, from two judgments of the Court of Special Sessions of the City of New York, entered on the 5th day of July, 1918, convicting the defendant of the crime of practicing law in violation of section 280 of the Penal Law. The information in cause No. 1 was for legal services and advice in connection with the drawing and attending to the execution of three instruments, namely, a deed, a bond and mortgage of real estate.

Appeal by the plaintiff, William H. Williams, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of August, 1919, granting defendants’ motion for judgment on the pleadings, consisting of a complaint and answer, and also from a judgment entered in said clerk’s office on the 13th day of August, 1919, dismissing the complaint.

<p>Appeal by the defendant, Booth & 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 3d day of March, 1919, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 10th day of March, 1919, denying defendant’s motion for a new trial made upon the minutes.</p>

‘ Appeal by The J. W. Rowe 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, denying appellants motion in summary proceedings to compel an attorney to pay over certain moneys.

Appeal by the plaintiff, The Snare & Triest 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 20th day of April, 1916, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 24th day of April, 1916, denying plaintiff’s motion to set aside the direction for a dismissal of the…

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond 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 13th day of February, 1919, denying défendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Rudolph Fischer, 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 22d day of November, 1919, overruling plaintiff’s demurrers to six separate defenses, one being also a counterclaim. The complaint was for $8,265.65.

<p>Eminent domain — erroneous award based on conjecture and opinion—appraisal remitted to new commissioners.</p> <p>Appeal by the Bronx Parkway Commission from an order confirming the report of commissioners of appraisal in condemnation proceedings wherein a substantial award was made to an owner, part of whose lands was taken, for interference with water rights which had never yet been developed, and for the possibility of the application of the lands taken to manufacturing purposes in the future, etc. Evidence examined, and held, that the award was based upon an erroneous theory of damage derived from conjectural estimates and opinions concerning the adaptability of the property for certain business purposes, and that the appraisal should be reversed and remitted to a new commission.</p> <p>An owner should have the fair market value for all available uses and purposes, but an inquiry as to all purposes to which the condemned property may be applied, having reference to the existing business or wants of the community, or such as may be reasonably expected in the immediate future, is too broad a rule.</p>

Appeal by the plaintiff, Philip J. Termini, as trustee, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 13th day of July, 1917, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint at the close of the plaintiff’s case.

Appeal by the defendants, William F. Cassedy, as trustee, 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 Rockland on the 24th day of October, 1918, upon the decision of the court rendered after a trial at the Rockland County Special Term.

Appeal by the plaintiff, Elkhorn Valley Coal-Land Company, 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 14th day of August, 1919, granting defendant’s motion for judgment on the pleadings and dismissing the complaint.

<p>Certiorari issued out of the Supreme Court and attested on the 3d day of February, 1919, directed to the Public Service Commission for the First District of the State of New York and Travis H. Whitney and others, as commissioners thereof, and another, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in requiring the relator to furnish breakdown service to Acker, Merrall & Condit Company in the city of New York.</p> <p>The opinion of the Commission is reported in Acker, Merrall & Condit Co. v. N. Y. Edison Co. (18 State Dept. Rep. 113).</p>

Appeal by the defendant, The New York Society for the Suppression of Vice, 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 25th day of April, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of April, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Schools — liability to invitee for injuries received in gymnasium — duty of board of education to keep appliances in gymnasium in safe condition.</p> <p>In an action to recover for injuries received by the plaintiff while using a defective spring board in one of the defendant’s gymnasiums it appeared that the plaintiff, a boy, went to the gymnasium at the invitation of the physical director thereof who was hired by the community center and paid by a member of the local school board; that the community center was permitted by the defendant board of education to use the gymnasium for a recreation center for boys in the neighborhood; that the plaintiff lived in the neighborhood but was not a pupil of the school with which the gymnasium was connected; and that the defect in the spring board had been reported to the director.</p> <p>Held, that the board of education was liable, for by permitting the community center to use the gymnasium and apparatus for a community use, there was an invitation to those who availed themselves of the privilege to come upon the premises and use the apparatus, and, therefore, the duty rested on the board of education to use reasonable care to keep the premises and appliances in a safe and suitable condition, and as the defective condition of the spring board had been reported to the director it was the duty of the board to remove it or notify invitees of its dangerous condition and prohibit its use.</p>

<p>See head note in Kelly v. Board of Education, No. 1 (ante, p. 251).</p>

<p>Certiorari issued out of the Supreme Court and attested on the 27th day of December, 1918, directed to Walter H. Knapp and others, as members of the State Tax Commission, and the State Tax Commission, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in assessing taxes against the relator for the fiscal year beginning November 1, 1917, under the provisions of article 9-a of the Tax Law.</p>

<p>Execution — judgment in ejectment from premises in Forest Preserve— when leave to issue execution after lapse of five years should be denied.</p> <p>The policy of the law, as indicated by sections 1375 and 1377 of the Code of Civil Procedure, is that a party who has a judgment and wishes to enforce it by the summary process of the court, should do so promptly, and if he sleeps on Ms rights for five years, time and its changes east a certain doubt upon the judgment, or at least upon the right to its summary enforcement, and he shall not have the execution of the court unless, upon facts found, the court is satisfied that the judgment has not been paid and that no other reason exists why it should not be .summarily enforced.</p> <p>The State should not be given leave to issue execution on a judgment in ejectment wMch was recovered in 1904 where it is quite probable under the decisions of the courts since the judgment was recovered, and perhaps judicially determined, that the deed under wMch the plaintiff claims title is void, or if not void a fair inference might arise that the premises occupied by the defendant are embraced within the reservations mentioned in the deed.</p> <p>The defendant did not so recogmze the title in the State by giving a bond to remove by a certain day or pay a stipulated sum shortly after the judgment was recovered, «that he is precluded from setting up any defense wMch he .may have acquired since the original judgment.</p> <p>By the plaintiff’s inaction for many years a doubt has been thrown upon the judgment, and as the defendant contends that the •plaintiff’s delays have invited certain acts on Ms part wMch show that the plaintiff has no right to the property, the question cannot be summarily disposed of on motion for leave to issue execution, but the defendant, asserting a substantial right in the property acquired since the judgment, is entitled to a trial. A motion for leave to issue an execution on a judgment in ejectment recovered nearly twenty years before should not be granted where the defendant raises a fair question as to whether he has a defense to the enforcement of the judgment; he is not called on to establish a defense.</p> <p>Cochrane, J., dissents.</p>

Certiorari issued out of the Supreme Court and attested on the 26th day of July, 1919, directed to Walter H. Knapp and others, as and constituting the State Tax Commission 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 assessing taxes against the relator Alpha Portland Cement Company for the year beginning November 1, 1918, under article 9-a of the Tax Law.

Appeal by the defendants, Watters Laboratories and another, from an award and order of the State Industrial Commission, entered in the office of said Commission on the 6th day of February, 1919, awarding compensation and continuing the case, and also from an order made on the 21st day of March, 1919, confirming the award.

Appeal by the defendant, Ezra Jackson, from a judgment of the Court of Special Sessions of the City of New York, rendered on the 15th day of October, 1919, overruling his demurrer to the information charging him with the violation of the Sanitary Code of the board of health of the department of health of the city of New York, and especially of section 163 thereof. (See Code of Ordinances of City of New York, chap. 20, art. 9, § 163.)

<p>Appeal by the defendant, Harry E. Weber, from a judgment of the County Court of Wyoming county convicting him of the crime of rape in the second degree, and also from an order denying defendant’s motion for a new trial on the ground of newly-discovered evidence.</p>

Appeal by the defendants, Niagara, Lockport and Ontario Power 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 Monroe on the 12th day of September, 1918, upon the decision of the court rendered after a trial at the Monroe Special Term.

<p>Reargument of an appeal by Edison Electric Illuminating Company of Brooklyn and another from that part of an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 13th day of September, 1917, which grants to the petitioner herein an alternative writ of mandamus.</p>

Appeal by the defendant, County of Suffolk, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 1st day of May, 1919, upon the report of a referee appointed by consent of the parties to hear and determine the issues in the action.

Appeal by Walter A. Evans 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 8th day of November, 1919, directing him to turn over to D’Anjou Pearsall, as administrator, etc., of Margaret P. Humphrey, certain personal property.

Appeal by the defendants, Hirschberg, Schütz & Company, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 9th day of July, 1919.

Appeal by the defendants, Alliance Electric Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 16th day of July, 1919.

<p>Appeal by the plaintiff, Boston and Maine Railroad, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 23d day of July, 1919, upon the decision of the court dismissing the complaint upon the merits after a trial without a jury.</p>

<p>Workmen’s Compensation Law — dislocated shoulder — subsequent fall followed by death — no evidence to sustain finding as to cause of death or that it was induced by first accident — consideration of opinion of chief medical examiner rendered outside hearing improper.</p> <p>The decedent sustained injuries on June 1, 1918, consisting of a dislocated shoulder and contusions and several weeks thereafter he fell in the street and was assisted to his home where he died the same day without medical attendance. The death certificate, which was signed by a person who had never seen the decedent in his life, stated that the cause of death was “ chrome cardiac valvular disease.” The physician who attended decedent after the first accident testified that he examined his heart and found no difficulty therewith and the decedent’s widow testified that the decedent had never had heart trouble.</p> <p>Held, that there was no evidence to support the finding that “The cause of death is given as ‘ chronic cardiac valvular disease.’ The injuries sustained on June. 1, 1918, so aggravated a previously existing heart lesion as to bring about decompensation and an acute condition which resulted in the death ” of the decedent, as the death certificate being presumptive evidence only was conclusively overcome by the testimony of the physician and the circumstances under which the certificate was made.</p> <p>The opinion rendered by the chief medical examiner of the Commission did not supply the deficiency as it was rendered outside of the hearing and assumed the cause of death to be as stated in the death certificate and is based thereon.</p> <p>John M. Kellogg, P. J., dissents, with opinion.</p>

Appeal by the defendant, John O’Rourke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 20th day of September, 1919, on the report of a referee in a condemnation proceeding, and also from an order entered in said clerk’s office on the 20th day of November, 1919, confirming the report of commissioners in said condemnation proceeding.

Appeal by the plaintiff, Mary E. Baker, as administratrix, 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 November, 1913, 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 3d day of February, 1914, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles L. Craig, comptroller of the city of New York, 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 6th day of December, 1919, holding and adjudging the appellant guilty of a contempt of court, in having disobeyed the order theretofore made by a justice of the court, dated February 13, 1919, restraining him, as comptroller of the city of New York, “ from…

Reargument of an appeal by the defendants, Storm King Stone Company and another, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the cleric of the county of Orange on the 21st day of December, 1916, confirming the report of commissioners in proceedings to condemn certain lands for a State highway in Cornwall, Orange county.. (See 190 App.

Appeal by the plaintiffs, John Farrell and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 13th day of December, 1917, upon a decision of the court rendered' after a trial at the Westchester Special Term dismissing the complaint upon the merits.

Appeal by the defendant, John T. Clark & Son, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of April, 1919, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the same day denying defendant’s - motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Turner & Blanchard, 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 10th 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 same day denying defendant’s motion for a new trial made upon the minutes.</p> <p>The defendant company, in the stevedore trade, had the deceased in its employ as a longshoreman. On September 6, 1918, the government transport Celebes was being loaded at the Bush Terminal, Brooklyn, with cargo hoisted aboard by the ship’s tackle, from a scow alongside. The transport’s deck was about twenty-five feet above that of the scow. The transport had out a permanent gangway or companionway, leading down alongside from the transport’s deck in two inclines, to the scow.</p> <p>The upper end of this gangway hinged to a platform bolted to the ship’s hull. The other supports were from two falls leading to standing rigging suspended from the ship’s davits. The lower section (which fell) was held by a four-part tackle, running to an upper block from a block at the top of an iron arch that spanned the foot of the gangway. This was attached above to a shorter tackle (also in four parts) made fast to the ship’s davit above the deck, which upper standing rigging was kept always at same height, as those ropes did not run into the lower blocks.</p> <p>As four of defendant’s longshoremen, including plaintiff’s intestate, came from work down this companionway, this upper standing rigging parted, whereby the lower section' of the companionway dropped into the water. ' Plaintiff’s intestate was drowned. There was evidence that this parted rope appeared to be “ raggy ” and dark colored. After the accident the ship’s officers put in a new rope, and later lowered a Jacob’s ladder down the ship’s side for the men. -</p> <p>Although plaintiff had served a notice under the employers’ liability provisions of the New York Labor Law (Art. 14, as amd. by Laws of 1910, chap. 352), she elected at the trial to stand on the defendant’s liability at common law.</p> <p>The issue left to the jury was that of the defendant’s duty as employer to make a reasonable inspection to discover and remedy the defect from which this companionway fell. The verdict for plaintiff was for $10,000.</p>

<p>Crimes — Penal Law, section 956, subdivision 1 — hypothecation of customers’ securities by broker — evidence not justifying conviction — charge — intent of defendant — when brokers not in actual or constructive possession of securities — failure to take exception to erroneous charge — where error raised by motion to acquit.</p> <p>On appeal from a judgment convicting the defendant of the crime of “ hypothecation of customers’ securities,” in violation of subdivision 1 of section 956 of the Penal Law, it appeared that the defendant was a member of a firm of stockbrokers which took subscriptions from customers for the various Liberty loans made to the government, receiving on such subscriptions the initial payment of two per centum. Instead of turning over the subscriptions to banks the firm subscribed for Liberty bonds in its own name at various banks to cover the bonds subscribed for by the customers, paying two per cent to the banks and giving a three months’ collateral note to cover the balance of the subscriptions, it being further agreed that the bonds, when issued, were to be received by the bank and held as collateral security for the payment of the firm’s note. On the day following the giving of the note certain of the firm’s customers paid the balance of their subscription to the defendant’s firm, which retained the moneys, and when the note fell due the defendant, representing his firm, renewed the same and paid the discount. It appeared further that the bank dealt only with defendant’s firm in the transaction and that the bonds were never in the physical possession of the firm but were retained by the bank as collateral. The firm of which the defendant was a member was subsequently ruined financially by defalcation of certain partners made wholly without the defendant’s knowledge and which resulted in his own financial ruin.</p> <p>Held, that the defendant was not guilty of a violation of said section 956 of the Penal Law and that a judgment of conviction should be reversed and the indictment dismissed.</p> <p>The intent necessary to sustain a conviction for a violation of section 956 of the Penal Law for the crime of hypothecation of customers’ securities is not the intent to defraud as in the ordinary crime of larceny but the intent to knowingly do the wrongful act prohibited by the statute, and it was proper to charge to that effect. However, the mere doing of the act is not a crime in the absence of the intent aforesaid.</p> <p>The defendant did not have actual possession of the bonds hypothecated and did not have constructive possession thereof because under the circumstances his firm had no right to possession. It follows that as the defendant had no possession of the securities, actual or constructive, he did not pledge them within the meaning of the statute and it was error for the court to charge to the contrary. The error in such charge is . available to the defendant although no exception thereto was taken, as the point arises on his motion for the court to advise the jury to acquit.</p> <p>Jaycox, J., dissents.</p>

<p>Crimes — murder, second degree — evidence justifying conviction — charge — statement that errors of law may be reviewed on appeal — definition of manslaughter, first degree — omission to charge that act must be done in heat of passion — omission not prejudicial to defendant.</p> <p>Appeal from a judgment convicting the defendant of the crime of murder’ in the second degree. Evidence examined, and held, sufficient to support the conviction.</p> <p>On a prosecution for said crime it is not error for the court to charge in substance that any mistake by the court in stating the law will not be prejudicial because it can be reviewed on appeal.</p> <p>There is a distinction between the power of the court to review errors respecting questions of fact in a criminal case and the power to review the court’s decision on instructions on matters of law.</p> <p>Any error of the court when defining the crime of manslaughter in the first degree in omitting reference to the statutory requirement that the act be done “ in the heat of passion ” was favorable to the defendant and not a ground for reversal.</p>

Appeal by Pinelawn Cemetery from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of September, 1919, in so far as it directs the receiver of said cemetery to sell so much of the lands as may be necessary to produce sufficient moneys to satisfy a judgment against said cemetery in favor of William D. Tyndall and others.

<p>Appeal — review of general verdict directed by court and based on several claims — contract — action for balance due under and for breach of contract for construction of foundation for building — unreasonable refusal of architect to issue certificate — recovery for increased cost resulting from erroneous and unauthorized interpretation of contract by architect.</p> <p>Where in an action against the city of New York for the balance due under a contract for the foundation work of a building and for breach of said contract, involving various items of damage, a general verdict for much less than the amount demanded is rendered by the court under a stipulation which made him the judge of both fact and law, if the court on appeal finds a sufficient basis for the verdict in any of the claims, the judgment should be affirmed.</p> <p>The presumption must be indulged that a verdict directed by the court under such a stipulation is based on those claims found supported by evidence sufficient to justify a finding in their favor.</p> <p>Where a crack in one of the foundation walls resulted from a defect in the plans which the plaintiff was required to follow in its work, it is entitled to recover, notwithstanding the refusal of the architect and the president of the borough to give the certificate required by the contract, for under the circumstances it was their duty to give it, and the refusal so to do was unreasonable.</p> <p>Since the contract expressly gave to the contractor the option of sheathing from the grade level to the bottom of the excavation or of pitching back the banks at a certain angle, and under the evidence the architect had no right to require the plaintiff to construct a system of trussing, sheathing and shoring instead of pitching back the banks, the plaintiff is entitled to recover for the additional cost of such work on the theory that it was a breach of the contract to require it.</p> <p>Under the contract the architect had no power to require the plaintiff in constructing concrete walls forty feet high to pour twenty-seven feet continuously, then ten feet continuously and then three feet, where the method sought to be used by the plaintiff of pouring in layers of two or three feet in thickness would produce work up to the specifications; and, therefore, the plaintiff is entitled to recover for the increased expense of so constructing the walls.</p> <p>So long as a contractor produces work which satisfies the specifications he may, in the interest of economy, choose his own methods.</p>

Appeal by the defendant, The Nassau Electric Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of April, 1919, upon the verdict of a jury for $1,500.

Reargument of an appeal by the defendants, George Laskas 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 11th day of February, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of March, 1919, denying their motion for a new trial made upon the minutes in an action brought to recover for an alleged breach of an implied covenant of…

Appeal by the defendant, Luigi Cascia, from a judgment of the County Court of Kings county, rendered against him on the 20th day of February, 1919, convicting him of the crimes of robbery in the first degree, grand larceny in the second degree and assault in the second degree, and sentencing him to not more than ten years and six months and not less than five years in State’s prison, and also from an order of said court denying defendant’s motion for a new trial made upon…

<p>Appeal by the petitioner, Bronx Parkway Commission, from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Westchester on the 26th day of December, 1919,. directing the payment of interest on costs and allowances in this proceeding.</p>

<p>Appeal by the plaintiff, Fairfax Hotel Company, Inc., from a determination of the Appellate Term of the Supreme Court, made on or about the 10th day of April, 1919, reversing a judgment of the City Court of the City of New York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 4th day of November, 1918.</p>

Appeal by the defendants, Jacob Friedman 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 defendants’ demurrer to the complaint.

Appeal by the defendant, Francis H. Holmes, 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 26th day of January, 1920, denying defendant’s motion for leave to serve an amended answer.

<p>Appeal by the defendant, Alex Abrash, 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 June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of June, 1919, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Executors and administrators — action to recover purchase price of stocks sold to testator — burden of showing non-payment — agreement that stock was to be paid for before delivery — stock found in decedent’s safe deposit box after death — evidence — Code Civil Procedure, section 829 — transactions with testator. •</p> <p>Where in an action to recover the purchase price of stocks sold to the defendants’ testator the written contract of sale provided that the stock was to be delivered as soon as it was paid for in cash and after the testator’s death the certificates of stock were found in his safe deposit box duly-issued to him, the burden is upon the plaintiff alleging the testator’s failure to make full payment to establish the fact.</p> <p>In such action it is error to exclude the testimony of a person, who at the time of the sale to the testator was a stockholder in the corporation and who signed the certificates of stock issued in the name of the testator and delivered them to the plaintiff’s assignor, respecting the circumstances under which the certificates were issued and whether the corporation received any consideration therefor, where in fact the witness had ceased to be a stockholder before the trial.</p> <p>Such testimony was not incompetent under section 829 of the Code of Civil Procedure as the witness having sold his stock was no longer financially interested in the corporation nor" did the fact that at the time of the transaction he was special representative of the plaintiff in financial transactions render his testimony incompetent under said section.</p> <p>So too, said witness was entitled to testify to conversations with the testator for the purpose of showing that he admitted that he had not paid for the stock.</p>

<p>Motion by the plaintiff, W. N. Stevenson & Company, Inc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the direction of a general verdict in defendant’s favor, after the court had taken a special verdict on two issues, upon a trial before the court and a jury in the City Court of the City of New York in December, 1919.</p>

<p>Appeal by the defendant, Klasko Finance Corporation, from an order of the Supreme Court made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 13th day of February, 1920, continuing pendente lite an injunction order granted ex parte enjoining and restraining defendant, during the pendency of the action, from taking any steps under a final order in a summary proceeding in the Municipal Court, Borough of The Bronx, First District, in favor of defendant, as petitioner and landlord, and against plaintiffs, as tenants, for the possession of certain premises within the territorial jurisdiction of said court.</p>

<p>Landlord and tenant — suit to enjoin breach of covenant against subletting — waiver of covenant by landlord — covenant stricken out of tenant’s copy of lease but retained in landlord’s copy — when grantees of landlord charged with actual or constructive notice of waiver by grantor — when temporary injunction should not issue.</p> <p>Where a lease contained a provision forbidding the tenant from subletting the premises or any part thereof without the written consent of the landlord, but the tenant immediately did sublet portions of the building without the written consent of the landlord but with his actual consent and knowledge, and he received the rent and made no objection to the subletting, and on the first extension of the lease the prohibition against subletting was stricken out, but on a second renewal such provision was retained in the copy of the instrument in the possession of the landlord which was signed by the tenant without reading the same on the assurance of the agent that it contained no such restriction, the subsequent grantees of the landlord cannot maintain a suit to enjoin a violation of the provision against subletting where the same in fact was stricken out of the tenant’s copy of the renewal of the lease and the agent promised to have it stricken out of the landlord’s duplicate copy.</p> <p>A waiver of a covenant against assigning a lease eliminates the covenant forever, but a waiver of a breach of a covenant against subletting affords no warrant for future like breaches.</p> <p>The acceptance of rent by a landlord may constitute a waiver of any prior violation of such covenant known to the landlord.</p> <p>Although the recording of such sublease, which was only for two years, was not constructive notice to the landlord’s grantees, they were in fact bound by knowledge obtained or by notice in any form or from any source and a subsequent acceptance of the rent waived a breach of the covenant.</p> <p>On the evidence held, further, that the plaintiffs, as grantees of the landlord, if not chargeable with actual notice that the premises had been sublet, were put upon inquiry as to the authority of the tenant to sublet and that if they had inquired of the tenant they would have discovered that the clause in question had been stricken out of the tenant’s copy of the lease and that he was free to sublet.</p> <p>Under the circumstances the lease could be reformed to strike out the covenant against subletting at the suit of the tenant.</p> <p>In any event a temporary injunction restraining the tenant from subletting pending the suit for a permanent injunction should not issue for the rights of the parties may be determined and enforced by the final determination.</p>

Appeal by the defendant, Partola Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1920, denying defendant's motion for judgment on the pleadings consisting of a complaint and answer.

<p>Executors and administrators — when appointment of temporary administrator should be made on ground of delay in probating will — revocation of order appointing temporary administrator upon presentation of alleged will improper in absence of fraud — fraud not shown — custom to appoint executor as temporary administrator does not justify vacating prior appointment.</p> <p>The appointment of a temporary administrator pursuant to the provisions of section 2596 of the Code of Civil Procedure was fully justified under the petition of the applicant, the widow of the decedent, which stated that the petitioner was informed of an alleged will and that if such will had been made it was invalid and the petitioner would contest its probate and a long delay would ensue before a final adjudication and where said petition alleged also that the decedent left a large quantity of personal property which was being disposed of by unauthorized persons.</p> <p>The production of an alleged will in court with a petition for its probate does not terminate the jurisdiction of the surrogate to appoint a temporary administrator.</p> <p>An order granting temporary administration should not be vacated, in the absence of fraud, upon the production of an alleged will with a petition for its probate.</p> <p>Upon the record and the facts in the case no fraud was practiced upon the ' court nor was the grant of letters to the widow as temporary administrator obtained upon the false suggestion of a material fact, and the revocation of the order granting temporary administration based on subdivision 4 of section 2569 and subdivision 6 of section 2490 of the Code of Civil Procedure was improper.</p> <p>Although it may be customary to appoint the executors of a contested will as temporary administrators pending probate proceedings, where temporary administration has been granted to the widow prior to the propounding of the will and before contest, the same should not be set aside and the executors named in the will appointed as temporary administrators, because of said custom.</p>

<p>Appeal by Armand Schmoll, Jr., and others, individually, and Armand Schmoll, Jr., and others, as executors, etc., from so much of an order of the Surrogate’s Court of the county of New York, entered in said surrogate’s office on the 3d day of September, 1919, as affirms an order entered in said surrogate’s office on the 10th day of June, 1919, fixing and assessing a tax upon the transfers of the property of said decedent under the law relating to taxable transfers of property.</p>

<p>Appeals in the first two actions by the People of the State of New York from 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 27th day of October, 1919, sustaining writs of ' habeas corpus and discharging relators from custody.</p> <p>Appeals in the last two actions by the People of the State of New York from 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 5th day of November, 1919, sustaining writs of habeas corpus and discharging relators from custody.</p>

Appeal by the plaintiffs, William Ponsonby Furniss and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of April, 1915, upon the report of a referee.

Appeal by the petitioners, Samson L. Toplitz and another, from a decree of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 24th day of December, 1919, in a proceeding for the construction of the will of Emma Ida Toplitz, deceased.

<p>Crimes — perjury — indictment charging that statement by defendant on cross-examination on trial of another was false — evidence insufficient — Penal Law, section 1627, not applicable — failure to introduce in evidence indictment on trial in which perjury was alleged to have been committed — improper and prejudicial remarks by prosecuting attorney in summing up.</p> <p>Where it is charged in an indictment that the testimony of the defendant, upon his cross-examination on the trial of another, which he asserted was true, was perjury, testimony of the court stenographer that the defendant admitted on his cross-examination that his contradictory testimony on direct examination was false, is insufficient to establish the commission of the crime charged.</p> <p>Section 1627 of the Penal Law, providing that “ In any prosecution for perjury the falsity of the testimony or statement set forth in the indictment shall be presumptively established by proof that the defendant has testified, declared, deposed or certified under oath to the contrary thereof in any other written testimony, declaration, deposition, certificate, affidavit or other writing by him subscribed,” is only applicable in cases where the previous contradictory statement was in writing subscribed by the defendant. Nor can it refer to a case where the second statement is part and parcel of one oral examination in which counsel upon cross-examination succeeds in breaking down the direct evidence, compelling the witness to admit the truth.</p> <p>The ease for the prosecution was also defective because the indictment on the trial in which the alleged perjury was committed was not offered in evidence; without the indictment it was impossible to determine whether the evidence was material.</p> <p>It was improper and prejudicial for the prosecuting attorney in his summing up to call upon the defendant who had not taken the witness stand, over the protest and exception of his counsel, to explain the charge made against him, stating that the defendant was the only man who knew the reason for Ms changed testimony on the first trial.</p>

Appeal by the defendant, 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 27th day of March, 1919, upon the verdict of a jury for $800.

Appeal by the defendant, The Standard Oil Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of December, 1919, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 29th day of November, 1919, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

' Appeal by the plaintiff, Israel Goldstein, 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 23d day of August, 1919, dismissing the complaint upon the merits, upon the decision of the court, after a trial, a jury having been waived.

Appeal by the plaintiff, Louis Lande, from a judgment of the County Court of the county of Bronx in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 4th day of April, 1919, upon the verdict of a jury for six cents, and also from an order entered in said clerk’s office on the 14th day of April, 1919, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, George Washington Lopp, 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 March, 1920, striking out the denials contained in the first and second defensese of the answer.

Appeal by the plaintiff, Katherine M. Feeney, 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 May, 1919, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the plaintiff, Max Klink, 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 December, 1919, which granted in part his motion for a discovery and inspection of the defendant’s books, but limited the inspection of the books to the period from the 1st day of June, 1918, to the 22d day of June, 1918.

Appeal by .the plaintiff, Robert Henry Thorburn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of June, 1919, which in part and on certain terms and conditions granted plaintiff’s motion for an order directing that the action be revived and continued against the First National Bank of Port Arthur, Tex., as administrator, etc., and that said bank be substituted as…

<p>Appeal by the plaintiff in each action from a judgment of the City Court of the City of New York, entered in the office of the clerk of said court on the 28th day of March, 1919, dismissing the complaint in each action.</p> <p>The appeal in each case was ordered by the trial justice of the City Court of the City of New York to be heard in the first instance before the Appellate Division.</p>

<p>Landlord and tenant — summary proceedings — lease and supplemental agreements construed — when lease not terminated by sale of premises — evidence to show circumstances surrounding execution of supplemental agreement admissible — new trial not granted for immaterial error in excluding evidence.</p> <p>The entry of a judgment by consent, reforming an original lease so as to show that on a sale of the premises the lease would be terminated, does not estop the lessee from contending, in summary proceedings, that a supplemental agreement, entered into prior to said judgment, superseded the original lease so far as the provision for termination was concerned; the lease as so reformed must be construed precisely as if the provision inserted by the judgment had been inserted originally.</p> <p>In summary proceedings, instituted on the ground that the lease of the defendant was terminated by the sale of the premises to the plaintiff, in which it was contended that a provision in the original lease providing for the termination thereof on the sale of the premises had been superseded by a supplemental agreement granting a definite term, a further supplemental agreement to the effect that the owners would not sell the property for a stated period, not being relied on by the landlord, could not be the basis for a claim that the lease was terminated under it.</p> <p>The effect of such further supplemental agreement being to show that it was the intention of the parties that the lease was to be terminated by a sale of the premises, it was proper for the tenant to show that it was executed at the request of the landlord and for a particular purpose.</p> <p>A new trial should not be granted in summary proceedings because of the exclusion of evidence offered for the purpose of showing the intention of the parties to the lease, where the lease itself is not of doubtful construction.</p> <p>In summary proceedings to dispossess the defendant on the ground that the sale of the premises to the plaintiff terminated the defendant’s lease, evidence examined and held, that the original lease between the defendant and the plaintiff’s grantor which provided for the termination of the lease on the sale of the premises was superseded by a supplemental agreement and that by such agreement the defendant was given a fixed term which could not be abridged by a sale of the property.</p> <p>Merrell, J., dissents, with opinion.</p>

<p>Appeal by the plaintiffs, Hermann M. Biggs 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 New York on the 5th day of May, 1919, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint, with costs, and requiring the plaintiffs to pay to the defendant within thirty days the sum of $28,000, being the down payment made by the defendant to the plaintiffs on the execution of the contract for the specific performance of which this action was brought, together with interest thereon and decreeing a sale of the premises for the payment thereof in case payment was not made as therein required.</p>

<p>Husband and wife — divorce — evidence.</p> <p>In an action for divorce in which the issues are limited to the question whether the defendant had commited adultery with a named corespondent, it is error to permit the defendant to prove misconduct between" the plaintiff and another.</p> <p>Where the answer is in effect a general denial and contains no affirmative defense or counterclaim,- neither the reason for the separation of the parties nor the conduct of the plaintiff are in issue.</p> <p>The motives which actuated the parties in separating and the plaintiff’s motive in bringing the action are immaterial where the only issue involved is the defendant’s adultery.</p> <p>The verdict of the jury in favor of the defendant on the issue of adultery is clearly against the weight of the evidence.</p>

<p>Appeal by the defendant, Alexander Maurocordato, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 23d day of September, 1919, upon the verdict of a jury for $11,500, and also from an order entered in said clerk’s office on the 22d day of September, 1919, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Sales — action for price of goods — burden of proof as to quality — counterclaim for defects in goods — charge erroneous that if defendant failed to sustain burden plaintiff entitled to recover — admissibility of hearsay evidence that returned goods had been resold and no complaint made by purchasers as to quality.</p> <p>In an action to recover the price of goods sold for a specific purpose, if the plaintiff knew at the time of the sale that a particular grade of the goods was required then it was bound to furnish that quality of goods and the burden of proof was on the plaintiff to show that it had fulfilled its contract and had furnished that quality of goods.</p> <p>It was error for the court to charge on the defendant’s counterclaim based on the failure of the plaintiff to furnish the quality of goods bought that the burden of proof was on the defendant to prove that the goods delivered were inferior to those purchased and the amount of its damages and that if it failed on either matter by a fair preponderance of evidence the plaintiff is entitled to recover the purchase price of the goods, for the charge authorized the jury to find for the plaintiff without making the proof that the law required in order to determine the defendant’s liability.</p> <p>It was error for the court to admit evidence on behalf of the plaintiff over the objection of the defendant that some of the goods which defendant returned had been resold by the plaintiff and that the persons who purchased them had made no complaint for such evidence was purely hearsay on the question of quality.</p>

<p>Motion by the plaintiff, Jacob Matthes, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after a verdict had been rendered in defendant’s favor.</p>

Appeal by the plaintiff, Oscar J. Heig, as trustee, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of May, 1919, dismissing the complaint upon the merits at the close of the case after a trial before the court, a jury having been waived.

<p>Appeal by the plaintiff, Burton Kline, 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 March, 1920, opening the default of the defendant and granting leave to serve a bill of particulars.</p>

<p>Appeal by the plaintiff, Lucile Limited, New York and Paris, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of December, 1919, enjoining the defendants pendente lite from using any script form for the word “ Lucille ” in their trade name “ Lucille-Byrd ” and denying the application of plaintiff that the defendants be enjoined from using the word “Lucille” or any part of said word in connection with their business.</p>

<p>Appeal by the defendant, Henry Surut, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of March, 1920, directing the sequestration of the property of the defendant for failure to pay alimony pendente lite, and appointing a receiver of the same.</p>

Appeal by the defendants, James A. O’Reilly and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1920, as denies a motion made by said defendants to vacate a writ of attachment.

<p>Insurance — municipal corporations — percentage payable by foreign insurance agents to fire commissioner, city of New York — counterclaim for alleged overpayment — deductions for cost of reinsurance not allowed — Insurance Law, sections 133-136, not applicable — constitutional law.</p> <p>In an action brought by the fire commissioner of the city of New York against the agent of a foreign insurance company to recover the two per cent of premiums received by the defendant upon policies of fire insurance on property situated within the city of New York, which percentage is payable to said fire commissioner under sections 799 and 800 of the Greater New York charter (as amd. by Laws of 1915, chap. 594), the defendant is not entitled to recover as an offset or counterclaim previous voluntary payments to the fire commissioner, where the defendant makes no claim that the payments, were made by mutual mistake, fraud or duress.</p> <p>As section 799 of the Greater New York charter provides for the payment by such agent of the sum of $2 upon the $100 and at that rate upon the amount of all premiums, the agent has no right to deduct from the amount payable- the amount paid by the insurance company for reihsuranee, for the latter is an expense of the business and cannot be deducted from the gross amount of premiums received.</p> <p>Sections 133-135 of the Insurance Law have no relation to the payment of the percentage upon such premiums to the fire commissioner, as said sections, in terms, except the cities of New York and Buffalo. So long as the provisions of the Greater New York charter apply equally to all in the same situation, they are not unconstitutional because another statute applying to other localities may be different.</p>

Appeal by the defendant, Mario Tapparelli fu Pietro of America, 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 1st day of December, 1919, overruling the demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings, consisting of an amended complaint and the demurrer.

<p>Appeal by the defendant, William A. Prime, 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 21st day of October, 1919, the first granting plaintiff’s motion for judgment on the pleadings and the second denying defendant’s motion for judgment on the pleadings.</p>

Appeal by the plaintiff, Owen E. Abraham, 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 December, 1917, dismissing the complaint upon the merits at the close of the case, and also from an order entered in said clerk’s office on the 19th day of December, 1917, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Clifford Abeles, 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 February, 1920, granting a prehminary injunction in an action in equity to vacate and set aside a transaction between the plaintiff and one James A. Abeles upon the 30th of January, 1919, on the ground of fraud and for an injunction against the defendant from prosecuting an action upon two notes executed by the plaintiff in the hands of said Clifford Abeles.</p>

<p>Judgments — entry of judgment on referee’s report — proper form of judgment — allowance of partial costs.</p> <p>Where a referee’s report directs judgment to be entered in accordance with the findings, and the findings clearly indicate that the judgment intended must be for a dismissal of the complaint on the merits, and the report further provides, “ No costs are awarded to either party against the other. The expenses of the reference, that is the fees of the referees and stenographers, and the cost of printing the opinion and report, shall be borne by the plaintiff and the defendant equally,” the court has no authority to order the entry of a judgment dismissing the complaint without any provision as to costs and expenses. But the judgment must conform to the findings of the referee.</p> <p>Judgment under the findings should be entered for a dismissal of the complaint upon the merits and for costs to the extent of one-half the sum which the defendant was lawfully required to pay to the referees for taking up the report and one-half the amount which was lawfully required to be paid for printing the report and opinion, and upon the entry thereof the defendant will be required to tax before the clerk such costs, at which time and place the plaintiff will be at liberty to challenge the amount actually paid as unauthorized in whole or in part.</p> <p>It seems, that the cost of printing the report and opinion of the referee could not have been taxed as a part of the cost of reference, if objection had been made.</p> <p>Under section 3230 of the Code of Civil Procedure a court of equity may award partial costs, and it was, therefore, clearly within the power of the referees to award to either party who should take up the report and pay referees’ fees, the right to tax one-half thereof to the other party, leaving for the clerk in the first instance to determine the amount lawfully required to be paid as such fees.</p>

Appeal by the defendant, A. 0. Andersen and Co., Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1920, denying defendant’s motion to vacate and set aside an order for the examination of the defendant before trial.

<p>Appeal by the plaintiff, Willis G. Bostwick, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chemung on the 28th day of November, 1916, upon the decision of the court, rendered after a trial before the court without a jury at the Chemung Special Term, dismissing the complaint upon the merits, and adjudging that the bond and mortgage mentioned in the complaint was null and void, and ordering the clerk of the county of Chemung to cancel and mark void the said bond and mortgage in said clerk’s office and cancel of record the notice of pendency of this action.</p>

<p>Appeal by the defendant, Harry F. Stowe, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 14th day of May, 1919, upon the verdict of a jury; 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, and also from an order entered in said clerk’s office on the 23d day of August 1919, denying defendant’s motion for a new trial on the ground of newly-discovered evidence.</p>

Appeal by the defendants, Kingsbury^Constraction Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 24th day of September, 1919.

Appeal by the plaintiff, Charles Pecue, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 17th day of September, 1919, upon the dismissal of the complaint by direction of the court at the close of plaintiff's case.

<p>Appeal by the defendant, Mason J. Clark, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chemung on the 29th day of September, 1919, upon the decision of the court rendered after a trial before the court without a jury at the Chemung Special Term.</p>

<p>Corporations — preferences between stockholders under certificate of incorporation—Stock Corporation Law, section 19, providing for issuance of stock without nominal or par value, construed — certificate of reorganization — changing common stock to stock without nominal or par value — validity of provisions giving preferences to preferred stockholders on liquidation or dissolution — redemption of stock — provision not against public policy.</p> <p>The provisions of section 19 of the Stock Corporation Law, providing for the “ issuance of shares of stock without nominal or par value,” show that the par value of preferred stock is not the precise amount the holder may receive from the surplus assets upoñ'jdissolution, but that that matter may be controlled by the eertificatef.of- incorporation. The words “ preference as to principal ” are used in describing the stock as distinguishing it from stock which is preferred as to dividends only. The section does not purport to limit the preference, but only requires that it be made definite and certain.</p> <p>Hence, a corporation is entitled to have its certificate of reorganization filed which changes the common stock to stock without any nominal or par value and provides that upon the liquidation, distribution of capital assets, dissolution or winding up of the corporation, the assets and funds shall be distributed, so far as the same may be lawfully done, among the holders of the stock, by paying to the preferred stockholders 120 per cent of the par value thereof, together with all unpaid accumulated dividends and the accrued dividends thereon, and to the common stockholders the remainder of the assets.</p> <p>The preferences granted to the preferred stockholders are not unreasonable and are clearly not so unjust as to be against public policy.</p> <p>As the Stock Corporation Law (§§ 62-64) regulates the manner in which the capital stock of a corporation may be reduced and safeguards the interests of the public and the creditors, the provision for the redemption of the stock while the corporation is a going concern cannot prejudice the public or the creditors.</p> <p>In the absence of statutory provision to the contrary, the certificate of incorporation of a business corporation may make such preferences between stockholders as to its stock as seem best.</p>

Appeal by the defendants, Hugh Dunlop and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 12th day of June, 1919.

Certification by the State Industrial Commission to the Appellate Division, under section 23 of the Workmen’s Compensation Law (as amd. by Laws of 1917, chap. 705), of the following question: “ Was the death of James B. Christian due to accidental injuries arising out of and in the course of his employment as a game protector of the Conservation Commission of the State of New York within the provisions of chapter 67 of the Consolidated Laws, being chapter 816 of the Laws of…

<p>Cross-appeals 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 3d day of March, 1919, sustaining demurrers to four separate defenses and overruling demurrers to two counterclaims contained in the answer.</p> <p>The opinion of the Special Term is reported in Union Ferry Co. v. Fairchild (106 Mise. Rep. 324).</p> <p>This opinion, written by the late Mr. Justice Philbin, and his. last judicial work, is adopted unanimously by the court and handed down as its opinion in the decision of this case.</p>

<p>Appeal by the defendants, Amsterdam Yarn Mills, Inc., and another, from an award of the State Industrial-Commission, made on the 11th day of August, 1919, awarding the claimant compensation at the rate of fifteen dollars and eight cents per week for a period of 244 weeks and closing the case.</p>

<p>Workmen’s Compensation Law — determination of average weekly wage — findings not sustained.</p> <p>Where it appeared that the claimant was receiving at the time of her injury two dollars and fifty cents per day; that a short time prior to the injury she was put to work on a machine that had been left idle by striking employees without any understanding as to an increase in wages; that men who operated similar machines on piece work received from twenty-four to twenty-six dollars per week; that other women working on similar machines were being paid two dollars and fifty cents per day, the finding of the State Industrial Commission that the average weekly wage of the claimant was twenty-eight dollars and eighty-four cents cannot be sustained.</p>

Appeal by the defendants, Charles I. Hudson and others, from so much of an order of the Supreme Court, made at the Tioga Trial and Special Term and entered in the office of the clerk of the county of Broome on the 2d day of January, 1920, as directs that the defendants’ demurrer be overruled.

<p>Appeal by the defendant, C. Edward Chapman, from a judgment of the County Court of the county of Washington rendered on the 28th day of May, 1919, convicting him of the crime of arson in the third degree.</p>

Appeal by the defendants, Donner Steel Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 15th day of August, 1919.

<p>Workmen’s Compensation Law — cause- of accident — existence of conditions surrounding place of accident which might have caused it.</p> <p>The decedent, who was employed by a printing company, was found lying on his back between two rolls of paper with his skull fractured. While there was no evidence to show what caused him to fall, the conditions surrounding the place of the accident —• grease on the concrete floor, rolls of paper three feet in diameter with rods projecting from the ends, absence of sufficient light, presence of noxious and enervating gases, and close and tepid atmosphere, all of which were connected with the employment and business and which might have been the cause of the fall, were such as to sustain the award.</p>

<p>Mortgages — foreclosure — appeal — findings based on conflicting evidence — failure to take exception to ruling — agreement to extend mortgage without consideration — defense — failure to notify defendant that plaintiff would not abide by his agreement — when costs will be denied plaintiff.</p> <p>In an action to foreclose a mortgage, the findings of the court, based on conflicting evidence, that the plaintiff did not make an oral agreement extending the mortgage, will not be disturbed on appeal.</p> <p>The defendant not having excepted to the ruling of the court striking out certain evidence as not being within the pleadings, he cannot raise that question on appeal.</p> <p>The agreement of the plaintiff made after the mortgage became due as follows: “ I hereby extend the life of the mortgage I hold against Fred Morris’ farm for two and one-half years. [Signed] Edwin P. Carr,” was without consideration and did not constitute a defense to the foreclosure of the mortgage.</p> <p>The failure of the plaintiff to notify the defendant before commencing foreclosure proceedings that he did not intend to abide by his written statement does not constitute either a legal or an equitable defense to the proceedings.</p> <p>But as the defendants probably would have paid the mortgage when it became due if the plaintiff had insisted and to that extent he may have caused them the extra expense of the costs incidental to the action, neither costs on appeal nor in the court below will be awarded to the plaintiff. Woodward, J., dissented.</p>

<p>Bills and notes — presumption of consideration from words “ value received ” —- showing history of transactions does not deprive plaintiff of presumption — defense of forgery — evidence showing that defendant’s signature not forged.</p> <p>The words “ value received ” in a promissory note are presumptive evidence that the note was given for a legal consideration.</p> <p>The plaintiff did not lose the benefit of the presumption that the notes were given for a valid consideration by the introduction of evidence to show the history of the transactions between the plaintiff and the defendant and her husband for the purpose of establishing that the defendant was familiar with them, for the evidence was not given for the purpose of showing a particular consideration for the notes.</p> <p>On all the evidence, held, that the signature of the defendant on the notes was not forged.</p>

<p>Railroads — action for wrongful death — on appeal from nonsuit plaintiff entitled to most favorable inferences — contributory negligence to be pleaded and proven by defendant —• speed of engine and failure to give warning, evidence of negligence — plaintiff entitled to have case considered on theory on which trial court rendered nonsuit — when contributory negligence for jury.</p> <p>Where a plaintiff is nonsuited at the close of his case he is entitled to the benefit of all facts and inferences which may be drawn from the evidence most favorable to his contentions.</p> <p>Under section 841-b of the Code of Civil Procedure (as added by Laws of 1913, chap. 228) contributory negligence as a defense in an action for death must be alleged and proved by the defendant.</p> <p>The mere circumstances that the defendant’s engine, which collided with the motor truck in which the plaintiff’s intestate was riding, causing his death, was approaching the crossing at a high rate of speed probably is not conclusive on the question of the defendant’s negligence; but the high rate of speed coupled with the failure to give any warning of the approach of the engine to the crossing is substantial evidence of defendant’s negligence.</p> <p>Where the complaint in a death action alleges in one paragraph that “ said engine was negligently, wilfully and wantonly run into the said track without any care or caution,” and in other paragraphs sets out a cause of action for negligence, and closes with the allegation that the death and damage were “ all solely through the negligence, want of care and omission of duty of the above named defendant,” and the defendant went to trial on both issues so far as they were tendered without requiring the plaintiff to elect and the trial court in granting the motion for a nonsuit and dismissal of the complaint passed upon both questions, the plaintiff is entitled on appeal to have the ease passed upon in accordance with the theory of the ruling of the trial judge.</p> <p>The acts of omission or commission of the driver of the truck on which decedent was riding after he became aware of the presence of the engine approaching at a high rate of speed cannot be passed upon as a question of law by the court, for he then faced an emergency of imminent peril where the absence of the best judgment does not defeat his right to go to the jury.</p> <p>But this will not avail the plaintiff unless there was freedom from contributory negligence of the driver of the truck in getting into the position of imminent peril.</p> <p>On all the evidence, held, that the question of the plaintiff’s contributory negligence should have been submitted to the jury and that the granting of a nonsuit was erroneous.</p>

Appeal by the defendant, The Dugan Store, Inc., 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 26th day of September, 1919, overruling its demurrer to the complaint.

Appeal by the defendant, August Bruggemann, 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 22d day of March, 1920, requiring the defendant to pay to the plaintiff counsel fees and alimony during the pendency of the action.

<p>Railroads — master and servant — action by engineer under Federal Employers’ Liability Act to recover for injuries caused by defective flooring in cab of engine — Federal Boiler Inspection Act not applicable — contributory negligence and assumption of risk defense to action.</p> <p>Contributory negligence and assumption of risk are available as defenses to an action by a railroad engineer under the Federal Employers’ Liability Act to recover for injuries caused by an alleged defect in the flooring of the cab of his engine, for the failure to keep the floor of the cab in proper condition was not a violation of the Federal Boiler Inspection Act of 1911, and, therefore, sections 3 and 4 of the Federal Employers’ Liability Act, which render unavailable the defenses of contributory negligence and assumption of risk “ in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee,” do not apply.</p> <p>Kiley, J., dissents, with memorandum.</p>

<p>Tax—stock transfer tax—transfer of stock as basis of action—assignment of certificate in blank — unstamped certificate no defense to action — non-payment of tax must be proven as defense.</p> <p>Tn an action by a stockholder of record of an insolvent trust company to recover from the executor of the actual owner of the shares of stock the amount he paid as his statutory liability, the plaintiff is entitled to recover on proving a transfer of the certificate in blank, a delivery thereof to the testator and that it remained in his possession till the time of his death and is now in the possession of his executor, though there are no stamps on the certificate showing that the transfer tax had been paid, for in the case of a transfer by delivery of a certificate assigned in blank, the stamps must be attached, under section 315 of the former Tax Law, to a hill or memorandum of the sale delivered by the seller to the buyer, and, therefore, the fact that the certificate did not have a stamp affixed to it is not evidence that the tax had not been paid, but such fact of non-payment must be proved as a defense.</p>

<p>Tax — franchise tax on manufacturing and mercantile corporations — computation of tax — Tax Law, section 214, construed—including same items under different heads in determining monthly value of bills and accounts receivable.</p> <p>The State Tax Commission in computing, for the purpose of laying a franchise tax on manufacturing and mercantile corporations under chapter 726 of the Laws of 1917, the share of the net income which is derived from sources within the State, cannot, in determining the average monthly value of bills and accounts receivable under subdivision 2 of section 214 of the Tax Law, include under any one of the headings therein any items that have been listed under either of the other headings, for each class is intended to be exclusive.</p>

<p>Workmen’s Compensation Law — brakeman handling intrastate freight on train engaged in interstate commerce.</p> <p>A brakeman on a local freight train carrying interstate shipments who, in addition to his work as brakeman, acted as flagman, assisted in switching ears to and from his train and helped in loading and unloading less than car lots at way stations, is engaged in interstate commerce while transferring an intrastate shipment from a car standing on a switch to a ear in the train on which he is working, and he is not entitled to an award under the Workmen’s Compensation Law for an injury received while engaged in making such transfer.</p> <p>John M. Kellogg, P. J., dissents.</p>

Appeal by the defendants,- Bachnor Brothers Co., Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 27th day of June, 1919.

<p>Appeal by the defendant, Philip Brown, from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, rendered on the 15th day of September, 1919, convicting him of the crime of criminally receiving stolen property in the second degree.</p>

<p>Appeal by the defendants, Joseph Naughton and another, from a judgment of the County Court of the county of Queens in favor of the plaintiff and the defendant Earl A. Gillespie, entered in the office of the clerk of said county on the 21st day of December, 1918, upon the decision of the court after a trial without a jury.</p>

Appeal by the plaintiff, Efizabeth M. Rosenwasser, 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 15th day of January, 1920, denying plaintiff’s motion to vacate an ex parte order for her examination before trial. The wife sues for divorce on the ground of adultery. Her complaint specified (Art. XII) such acts with a woman unknown by name, also (XIII) with one named.

<p>Trial — when nonsuit proper — action for injuries caused by failure properly to maintain manhole in city street — complaint stating cause of action for negligence and not for nuisance —■ liberal construction of pleadings — pleading wrong Statute of Limitations.</p> <p>A nonsuit may be granted at the opening of the trial where the complaint does not state facts sufficient to constitute a cause of action.</p> <p>In determining whether a complaint states a cause of action for negligence or one for nuisance the essential distinction to be applied is that nuisance involves the element of positive wrongdoing as distinct from mere acts of carelessness, whether of omission or commission.</p> <p>In an action to recover for injuries caused through the “ wrongful, careless and negligent manner ” in which the defendant “ maintained ” a manhole in a city street, complaint examined, and held, to state a cause of action for negligence.</p> <p>The liberal construction of pleadings sanctioned by the Code of Civil Procedure extends but to matters of form, not to the fundamental requisites of a cause of action.</p> <p>While the plaintiff might have had a cause of action for nuisance he did not so plead it as to escape the Statute of Limitations pertinent to an action for negligence.</p> <p>The defendant’s plea of the Statute of Limitations was not fatally defective though he pleaded the wrong statute, since it appears that both statutes contain the same limitation and the defendant raised the substantial objection that the action was belated by pleading “ that said cause of action accrued more than one year prior to the commencement of this action.”</p>

<p>Appeal by the plaintiff, George L. Estes, from a judgment in favor of the defendant, entered in the office of the clerk of the county of Allegany on the 14th day of January, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case and directing a verdict for the defendant.</p>

Appeal by the defendant, Clarence R. Salter, from a judgment of the Court of Special Sessions of the Peace of the City of New York, county of Kings, entered in the office of the clerk of said court on the 16th day of December, 1919, convicting him of the crime of practicing dentistry without a license, in violation of chapter 49 of the Laws of 1909, as amended by chapter 129 of the Laws of 1916, and chapter 507 of the Laws of 1917, constituting the Public Health Law of the…

<p>Carriers —■ negligence — action by passenger to recover for injuries received by collapse of seat — evidence — trial — failure of plaintiff to move for direction of verdict — prejudice not shown — when lack of due care not shown — rule of res ipsa loquitur does not relieve plaintiff of burden of showing negligence'—question for jury — setting aside verdict erroneous.</p> <p>In an action for negligence to recover for injuries received by the plaintiff which were caused by the collapse of an adjustable seat in one of defendant’s street cars, evidence examined, and held, not to support the plaintiff’s allegations that the seat was out of order and in a defective and worn condition and that the supports thereunder had not been properly placed by the defendant where they belonged.</p> <p>The plaintiff by failing to move for a direction of a verdict conceded that the evidence presented a question of fact for the jury.</p> <p>There is no possible indication that the verdict was the result of prejudice outside of the fact that it was for the defendant.</p> <p>The defendant was not bound to provide against the contingency that the plaintiff in using the seat would so locate her body that when she got out of the seat she would lift it from, the sockets and thereby create a condition which would cause the seat to collapse.</p> <p>The rule of res ipsa loquitur invoked by the plaintiff aids, but it does not inevitably accomplish, and despite the happening of the accident there still remained the burden on the plaintiff to establish negligence, and the question for the jury was whether the plaintiff with the aid of that rule had inculpated the defendant for the lack of due care under the circumstances. '</p> <p>On all the evidence, held, that it was error for the trial court to set aside the verdict for the defendant and the verdict should be reinstated.</p>

<p>Street railways — action to recover for personal inj uries received in collision between defendant’s street car and plaintiff’s motor truck — appeal from judgment only — verdict against weight of evidence — charge that plaintiff was not bound to look continuously for approaching car was proper — ordinance as to north- and southbound vehicles — evidence showing contributory negligence.</p> <p>On an appeal from a judgment alone the appellant may make the claim that the verdict was against the weight of the evidence.</p> <p>In an action to recover for personal injuries received in a collision between a street car of the defendant and the plaintiff's motor truck as he was crossing the defendant’s tracks for the purpose of turning into an intersecting street it was not error for the court to charge that the plaintiff was not bound to look continuously to the rear in the direction from which the street car was approaching after he first observed its approach.</p> <p>An ordinance giving north- and south-bound vehicles preference over east- and west-bound vehicles at street intersections does not apply where one of two vehicles passing along a street in a northerly direction attempts to turn into an east and west street by crossing in front of the other, and the vehicle attempting to cross the street is bound to yield the right of way to the following vehicle if there is not sufficient space for the crossing.</p> <p>On all the evidence, held, that the much greater weight of evidence indicated that the plaintiff was guilty of contributory negligence in attempting to turn his motor track across the defendant’s track in front of the approaching car without glancing back to see where the approaching car was, when only a short time before he had seen it some 300 feet away approaching at a high rate of speed.</p> <p>The fact that the plaintiff saw people standing at the crossing did not warrant him in failing to make any observation as to the car approaching him from the rear on the assumption that the street car would stop to take them on.</p> <p>It seems, that if the defendant had taken the position at the trial that the plaintiff’s contributory negligence was established as a matter of law, and had moved for a direction of a verdict, his contention would have been sustained on appeal.and the complaint dismissed.</p>

<p>Appeal by the defendant, Grover A. Whalen, individually and as commissioner, etc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of April, 1920, enjoining the defendant “ from operating or in any manner assisting in the operation or supervising the operation or maintaining or in any way aiding in the maintenance of * * * specified bus line or lines of motor vehicles, in the Borough of Brooklyn, City of New York,” upon certain routes described in the said order.</p> <p>The plaintiff, a street railroad company, owns and operates lines of surface cars in Brooklyn. In the fall of 1919 the board of estimate and apportionment authorized the defendant to operate motor vehicles for the carrying of passengers on certain prescribed routes. Pursuant thereto he established routes, and under his authority and supervision lines of motor vehicle stages or omnibuses are running over the routes specified in the order and paralleling the tracks of the plaintiff company. This action is brought to enjoin the defendant from maintaining and operating the stage lines of motor vehicles. An order enjoining the defendant pending the trial of the action was granted at the Special Term, and the defendant appeals to this court.</p>

<p>Appeal by the defendant, Walter A. Ferguson, 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 8th day of September, 1919, upon the report of a referee.</p>

Appeal by the defendants, The Standard Oil Company of New York and another, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of said county on the 15th day of September, 1919, upon the verdict of a jury for $150, 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>Workmen’s Compensation Law — decedent not engaged in interstate commerce—award sustained — presumption under section 21.</p> <p>Where the evidence does not show that the decedent had any connection with interstate commerce except such as can be inferred from the fact that he was a section foreman employed by a railroad corporation engaged in interstate and intrastate commerce, and it can be reasonably inferred that he was engaged on new construction, an award should be sustained, in view of the presumptions authorized by section 21 of the Workmen’s Compensation Law.</p> <p>Cochrane and H. T. Kellogg, JJ., dissent.</p>

Appeal by the defendants, O’Donnell Lumber Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 25th day of July, 1919.

<p>Appeal by the defendant, Utilities Mutual Insurance Company, from an award of the State Industrial Commission, made on the 17th day of November, 1919, and entered in the office of the said Commission.</p>

Appeal by the defendant, Gilbert J. Springsteel, from a judgment of the County Court of Westchester county in favor of the plaintiffs, entered in the office of the clerk of said county on the 24th day of July, 1919, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Trial Term, 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 in an action to…

<p>Street railways — negligence — action by infant to recover for injuries received while in charge of nurse in jumping from moving car — duty of defendant to keep doors shut — charge that proof of negligence frees plaintiff from contributory negligence erroneous — verdict against weight of evidence — when testimony given at former trial admissible — preliminary proof — oral evidence as to existence of written rule of defendant — evidence as to injury not pleaded — counsel admonished for disorderly examination of witness and for constant interruption of opposing counsel when presenting requests to charge.</p> <p>In an action to recover for personal injuries received by the plaintiff, a young child, in jumping off a moving street car, it appeared that the plaintiff and his brother, in the care of a nurse, were riding on the defendant’s ear; that they were unruly and ran about the ear and onto the front platform and talked to the motorman; that the nurse, though she tried to control them, was unable to do so, and that as the car was about to stop the plaintiff’s brother ran to the front of the car and jumped off and the plaintiff following him jumped onto his brother and rolled under the car receiving injuries necessitating the amputation of one leg.</p> <p>Held, that it was error for the court to charge that it was the duty of the motorman and conductor on the car to close and lock the ear doors so that the plaintiff could not run on the platform and jump from the car.</p> <p>No one can be said to be guilty of negligence merely because he fails to make provision against an accident which he could not be reasonably expected to foresee, and the motorman was not bound to anticipate that the children would be permitted to come out on the platform behind him unattended and on reaching the platform would jump from the moving ear.</p> <p>It was error for the court to charge that if negligence were established on the part of the defendant’s employees it would free the parents or the plaintiff’s nurse of contributory negligence.</p> <p>The verdict is against the weight of the evidence as to negligence on the part of the defendant and absence of contributory negligence on the part of the nurse.</p> <p>The testimony of the nurse given at a former trial should not have been read, pursuant to section 830 of the Code of Civil Procedure, as there was no proof that the witness was at the time a non-resident of the State or that she was absent from the State, nor was any proof given of an effort made by the plaintiff to obtain her presence at the trial.</p> <p>The preliminary proof, which merely established that at the time of the first trial, a month before, the witness was a resident of the State of Vermont, that she came to this State at the request of the father of the plaintiff to testify, and that after testifying she was supplied with money and declared her intention to return to Vermont, was not sufficient to authorize the reading of the testimony.</p> <p>In order that'testimony given at a former trial may be read on the ground that the witness is absent from the State it must be made to appear that the witness is actually absent from the State at the time the testimony is offered.</p> <p>It was error for the court to admit evidence of a written rule of the company in reference to the closing of the car doors without requiring the proper foundation to be laid for the introduction of the oral testimony.</p> <p>It was also error to admit testimony that the plaintiff suffered from mastoiditis and had been operated on, as there was no allegation of such facts in the complaint and it was not a condition naturally resulting from the specific injury set forth.</p> <p>Counsel admonished for disorderly and acrimonious examination of a witness and for constant interruption and contradiction of the opposing counsel while the latter was presenting his requests to charge.</p>

<p>Pleadings — bill of particulars — when further bill should be granted in action to recover for injuries to real estate by construction of subway.</p> <p>In an action to recover for damage to plaintiff’s building and for loss of revenue by reason of the negligence of the defendant in constructing a subway in the street adjoining, and for the creation of a nuisance, wherein the.plaintiff has furnished a bill of particulars and in answer to an original demand for particulars as to the respects in which the defendant failed to furnish proper material, labor and workmanship necessary for the proper shoring, staving, spilling and underpinning of the plaintiff’s property, has alleged that the negligence consisted in “failing to furnish proper material” for such work, and that the “ shoring” was inadequate because it was improper and insufficient in size, strength and character to support the weight to which it was subjected, the defendant was entitled to a further bill showing either that the “ staving, spilling and underpinning ” were part and parcel of the “ shoring ” or information as to the alleged defect or inadequacy of such “ staving, spilling and underpinning.”</p> <p>The defendant was not entitled to a further bill as to the extent and location of each and every injury to the plaintiff’s building, as it had already furnished such information as far as practicable and furthermore it permitted the defendant to inspect the building.</p> <p>The defendant was entitled to a further bill stating in what respects plaintiff claims the derrick and dirt bunker were carelessly, negligently, unnecessarily and unreasonably placed and operated by the defendant, the operation of which the plaintiff alleged had worked a damage to the rental or usable value of its premises.</p>

<p>Banks and banking — checks — payment of check on forged indorsement— estoppel — findings as to negligence not supported by evidence.</p> <p>Payment of a cheek by a bank on a forged indorsement is at the peril of the bank unless it can claim protection upon some principle of estoppel.</p> <p>The plaintiff, a depositor of the defendant bank, told the cashier that she wished to draw a draft payable to a named person to whom she was to loan money on a bond and mortgage, and was advised to draw the draft to herself and then indorse it payable to the order of such person and that no one except the person to whom it was indorsed could draw the money. This was done and the plaintiff took the draft to an attorney who had agreed to place the loan on a bond and mortgage on specific property which he stated was owned by the person to whom the draft was indorsed, and he produced a bond and mortgage purporting to have been executed by the person to whom the draft was payable and his wife and advised the plaintiff that the mortgage would be recorded and at the same time delivered a certificate of title and a fire insurance policy covering the property. The fact was that the property in question belonged to the attorney and the name of the person to whom the draft was payable was fictitious and the papers were executed by the attorney and he forged the notarial certificate, the name of the indorsee to the draft, and indorsed his own name thereto and secured the money.</p> <p>Held, that, as between the plaintiff and the attorney, the bond and mortgage were valid, and the plaintiff suffered no legal loss, for which the defendant is accountable, by reason of the payment of the draft to the attorney.</p> <p>As the plaintiff represented to the hank that the one to whom the draft was indorsed was an existing person and the draft was issued and indorsed for her signature at her request so as to be payable to said fictitious person, she was bound by her representations to the defendant that the indorsee was a genuine person, and that she was thereafter swindled by the attorney does not make the defendant liable.</p> <p>The findings that the defendant did not use due and reasonable care and diligence, and that it was negligent in paying the draft are contrary to the evidence.</p> <p>Rich and Putnam, JJ., dissent, with opinion.</p>

<p>Vendor and purchaser — suit for specific performance — anticipatory breach of contract by vendor — mutuality of contract — implied promise to purchase.</p> <p>The rule which limits actions at law for anticipatory breach of contract to those based on contracts to marry, for personal services and for the manufacture and sale of goods, does not apply to suits in equity for specific performance.</p> <p>A purchaser may maintain a suit in equity for the specific performance of the contract though the time for performance on the part of the vendor has not arrived, where the vendor has committed an anticipatory breach of the contract by refusing to accept the consideration tendered by the purchaser and repudiating the contract.</p> <p>A contract will not be specifically enforced unless it is mutual not only in its obligation but also in its remedy.</p> <p>Although the purchaser did not in express terms agree to buy the land, such promise was clearly implied as the contract was by its terms an “ agree, ment ” between the parties signed by both of them, and an initial payment was made by the purchaser when the contract was executed.</p>

<p>Crimes — grand larceny—evidence — testimony of accomplice — sufficiency of corroboration.</p> <p>On the trial of an indictment for grand larceny evidence given to corroborate an accomplice need not be sufficient in itself to prove the defendant’s guilt in order to satisfy the requirement of section 399 of the Code of Criminal Procedure, nor need the corroboration extend to all the elements of the crime.</p> <p>But there must be other evidence tending to connect the defendant with the “ commission ” of the crime; the other evidence must implicate the defendant in the guilty act.</p> <p>On all the evidence, held, that the testimony offered as corroborating the accomplice did not tend to show that the defendant was connected with the commission of the crime, as each act testified to was entirely consistent with innocence, and did not, even in connection with the testimony of the accomplice, indicate guilt.</p>

Appeal by the relator, Lillian James, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 13th day of September, 1919, dismissing the writ of habeas corpus sued out on behalf of the relator on the 2d day of June, 1919.

<p>Landlord and tenant — when lease superseded by contract of sale — practical construction placed on transactions as controlling subsequent parties.</p> <p>The plaintiff’s predecessor in title, who owned certain lands on both sides of a stream, organized a power company of which he was practically the owner, and leased to the company water rights and lands essential to the operation of the plant and about two weeks thereafter before anything had been ■ done under the lease he entered into a contract to convey to the said company certain land on which the plant was to be erected and which was to be flowed and the land thus contracted to be sold included very much of the land which was included in the lease. He thereafter made a general assignment for the benefit of creditors and his assignee conveyed to the receiver of the power company the land covered by the contract. His assignee conveyed the balance of the assignor’s lands to two persons, the plaintiff’s immediate grantors, excepting the land contracted to be conveyed to the power company, and they, after dividing the land into several parcels, transferred to the plaintiff land on both sides of the stream but expressly reserved in the deed all rights which the power company had in the lands by virtue of the said contract of sale. In an action to recover the rental reserved in the lease,</p> <p>Held, on all the evidence, that the lease to the power company was superseded and merged in the contract of sale which had for its primary purpose the conveyance of the water power rights covered by the lease.</p> <p>The fact that the lease was executed by the power company by its nominal president after the execution of the contract of sale did not, under the circumstances, prevent the contract from superseding the lease.</p> <p>The actions of the parties at the time the lease and contract were made indicate clearly that they intended the contract to abrogate the lease, and as the rights of no other parties intervened between the execution of the lease and the contract of sale, the practical construction placed on the transactions by the only persons interested in the properties at the time these papers were made should be controlling.</p>

<p>Municipal corporations — statute directing trustees of village to borrow money to pay claim —■ mandamus to compel trustees to convene, audit and pay claim — constitutional law — power of Legislature to direct village to pay for work done under contract which was not made strictly in compliance with section 166 of Village Law.</p> <p>The holder of a certificate of indebtedness given him by the trustees of the village of Wilson in payment for the paving of a street under a contract with the village, is entitled to a writ of mandamus to compel the trustees of the village to comply with chapter 399 of the Laws of 1919 authorizing, empowering and directing them “ to borrow in the name and upon the credit of the village ” sufficient money, not exceeding a stated amount, as will be necessary to pay the certificates outstanding for the paving.</p> <p>The Legislature had the undoubted right to compel payment of the certificate of indebtedness without invading the constitutional rights of any citizen, though section 166 of the Village Law was not strictly complied with in undertaking the work of paving and levying the assessment therefor, for the petitioner has performed his labor and furnished materials for an improvement that was accepted by the trustees and is being used and enjoyed by the inhabitants of the village, and the trustees have refused to pay the moral obligation of the village founded on equity and justice.</p>

Appeal by the defendant, E. M. Sergeant Company, from a determination of the Appellate Term of the Supreme Court, filed in the office of the clerk of the City Court of the City of New York on the 4th day of February, 1920, affirming a judgment of the City Court of the City of New York in favor of the plaintiff entered upon a directed verdict, and also affirming an order of said City Court, denying defendant’s motion for a new trial.

Appeal by the plaintiffs, Robert Holmes and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d day of November, 1918, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the amended complaint on the merits.

Appeal by the defendant, George C. Warner, 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 10th day of April, 1919, upon the decision of the court rendered after a trial at the Erie Special Term directing the cancellation of a certain promissory note and other relief.

Appeal by the plaintiffs, Louisa Feil and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 25th day of October, 1919, upon an order made at the Albany Special Term and entered in said clerk’s office on the 25th day of October, 1919, sustaining the defendants’ demurrer and dismissing the complaint, and also from the order upon which the said judgment was entered.

Appeal by the defendant, Atlantic Coast Shipping Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th 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 15th day of April, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Charles S. Waterhouse, from an interlocutory 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 19th day of August, 1919, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Pledge — unauthorized pledge by stockbrokers of securities loaned — sale by pledgee of securities pledged without authority together with securities of customer lawfully pledged — equitable rights of owner of securities pledged without authority — equitable lien as against customer authorizing pledge — failure of owner of securities pledged without authority to give security entitling her to injunction pendente lite — res adjudicata.</p> <p>A firm of stockbrokers, pursuant to authority given to them by a customer, pledged securities owned by the customer with the defendant bank to secure loans, and also without authority pledged with the said bank other securities loaned to it by the plaintiff who was not a customer but who made the loan for the sole purpose of apparently increasing the broker's assets during an investigation of its books by a committee of the Stock Exchange, and the bank having no knowledge of the plaintiff’s equities sold the securities aforesaid excepting certain securities of the customer who had authorized the pledge, and delivered the remaining securities to said customer under a judgment recovered against it, owing to the fact that although the plaintiff had been granted an injunction pendente lite restraining such delivery, she failed to give a bond upon which the injunction was conditioned.</p> <p>Held, that the plaintiff not having been a party to the action by the customer was in no way bound by the judgment therein, nor was it conclusive on the customer as between him and the plaintiff;</p> <p>That, although the plaintiff has no right of action against the bank, she is entitled to have the remainder of the customer’s securities applied to the payment of the balance due the bank and to a prior right to any surplus that may remain to the extent of the value of the bonds, and to an equitable lien upon the stock turned over to the customer who has been made a defendant in her suit. This, because the amount that the customer paid to redeem his stock on the insolvency of the broker had been reduced by the amount realized on the sale of the plaintiff’s securities, and he had thus been unjustly enriched and to that extent must account therefor to the plaintiff.</p> <p>Furthermore, under the circumstances aforesaid the plaintiff is entitled to a judgment against the firm of brokers and the individual members thereof for the value of her bonds less the amount to be paid to her by the customer.</p>

<p>Appeal by the plaintiff, Arthur L. Brigham, 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 18th day of November, 1918, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Appeal by the plaintiff, George Keister, 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 November, 1919, and also from a judgment entered thereon in said clerk’s office on the 24th day of November, 1919, as amended by an order entered in said clerk’s office on the 12th day of December, 1919, dismissing the complaint at the close of the case after a verdict in favor of the plaintiff.</p>

<p>Crimes — murder in first degree — self-defense — evidence — hearsay — res gestae — statements made by deceased to third person prior to homicide as to defendant’s reputation for violence — admissibility in rebuttal where issue as to character of deceased not raised — character evidence — general character of defendant not put in issue by defendant’s testifying.</p> <p>On the trial of an indictment for murder in the first degree, to which the defense interposed is self-defense, evidence of statements made by the deceased to a third person, not in the presence of the defendant, two days prior to the homicide, to the effect that the defendant was a desperate person and he was afraid of her, is not admissible as it is purely hearsay, and it is not admissible as the declarations of a party or as part of the res gestee.</p> <p>The evidence, which was offered in rebuttal, was not admissible under the rule that when the plea is self-defense, and the defendant has been permitted to offer evidence as to the character of the alleged aggressor for violence or the traits of violence natural to the aggression, then the prosecution may offer like evidence in rebuttal, as no issue was made by the defendant of the character or reputation of the deceased by the offer of any evidence thereof, and her testimony that she killed the deceased while he was attempting to force her to sexual intercourse did not raise that issue.</p> <p>The statements could not be regarded as evidence as to the character of the defendant.</p> <p>And furthermore, while the defendant by taking the stand subjected herself to attack upon her credibility, she did not put her general character in issue by becoming a witness, nor did she do so by testifying to the act of violence on the part of the defendant preceding the homicide.</p>

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

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

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office December 31, 1919, denying a motion by defendant for a bill of particulars.</p>

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1912.

Appeal by the plaintiff from an order of the County Court of Westchester county, entered in the office of the clerk of said county on the 31st day of May, 1918, sustaining a demurrer to the amended complaint.

Appeal by defendant from a judgment of the Supreme Court in favor of plaintiff for $4,148 damages and costs, entered in the office of the clerk of Kings county on January 22,1919, upon the verdict of a jury for $4,000; also from an order entered in said office on February 21, 1919, denying its motion for a new trial.

Appeal by the defendant from a judgment and order. Judgment and order affirmed, with costs. No opinion. Jeriks, P. J., Mills, Blackmar and Kelly, JJ., concur.

<p> Evidence—attorney and client—privileged communications—waiver by presence of third party. </p>

<p>Appeal from an award of the State Industrial1 Commission, entered in the office of said Commission August 2, 1919.</p> <p>Award affirmed. All concur, except Kiley, J., dissenting, with an opinion.</p>

<p>Workmen’s Compensation Law — dependent father and mother residing in foreign country — award limited to twenty-five per cent of weekly wage.</p>

<p>Appeal from an award of the State Industrial Commission entered in the office of said Commission July 24, 1919.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office February 17, 1920, denying a motion to vacate a warrant of attachment.</p> <p>Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Dowling, Laughlin, Smith, Merrell and Greenbaum, JJ.; Smith and Greenbaum, JJ., dissenting.</p>