Volume 192 — New York Appellate Division Reports

Appeal by the defendants, Moses Levinson 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 2d day of February, 1920, overruling the defendants’ demurrer and granting the plaintiff’s motion for judgment on the pleadings.

<p>Elections — invalid vote for one officer not invalidating entire ballot.</p> <p>An entire ballot is not invalidated by the fact that the elector placed a cross in front of the name of a candidate for town clerk and then wrote in the name of another for the same office, but is invalid only as to the vote for town clerk.</p>

Appeal by the relator, G. Herbert Pardee, individually and as taxpayer, and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 26th day of December, 1919, denying relator’s application for a writ of prohibition.

Appeal by the plaintiff, The Warren Refining and Chemical Company, from a judgment of the County Court of the county of Steuben in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 9th day of September, 1918, reversing a judgment rendered in the City Court of the City of Corning on June 2, 1917.

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

<p>Appeal by Eugene M. Travis, Comptroller, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 28th day of October, 1919, affirming an order which confirmed the report of the appraiser finding that the decedent did not have any capital invested in business in this State nor was decedent doing business in the State within the meaning of subdivision 2 of section 220 of the Tax Law (as amd. by Laws of 1916, chap. 323).* - ■</p>

Appeal by the defendant, Meyer Silberstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of December, 1919, upon the verdict of a jury; also from an order entered in said clerk’s office on the 3d day of December, 1919, 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 24th day of December, 1919, denying…

<p>Partnership — action against partnership for alleged services rendered — evidence — when appellate court not entitled to charge partner individually.</p> <p>Where in an action to recover for work, labor and services alleged to have been rendered to a partnership, it was claimed that the employment was not binding upon the partnership, nor upon one of the defendants individually, it was error to exclude a question on the cross-examination of plaintiff’s assignor as to what benefit the services could be to such individual defendant, there being a hopeless conflict of testimony in respect to whether the aEeged agreement of hiring was made with that defendant for his personal benefit.</p> <p>Where there is no appeal from a reversal by the AppeEate Term of a judgment against one of the partners and the dismissal of the complaint as against him, and the only appeEant is the other partner who claims that there was no contract binding upon the firm, or upon him, the AppeEate Term has no power to find that said appeEant had person aEy obligated himself to the plaintiff, no such claim having been advanced by plaintiff at the trial and there being no such finding by the trial court.</p>

<p>Appeal by the defendants, Max Goldsmith and another, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 15th day of January, 1920, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the plaintiff, and also affirming an order of said Municipal Court denying defendants’ motion to set aside the verdict and for a new trial.</p>

Appeal by the defendant, Annie E. Lynch, from a judgment of the County Court of the county of Kings in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of February, 1920, upon the decision of the court which decreed that defendant specifically perform a contract for the sale of land.

Appeal by the plaintiff, Herman Kaplan, 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 14th day of November, 1919, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendant, Sizer Forge Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 28th day of September, 1919, granting a new trial on the ground of newly-discovered evidence. .

Appeal by the defendants, Lila Morrison Weed 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 2d day of February, 1920, separating issues, requiring the equity issues to be first tried and determined and postponing the trial upon the issue raised upon the defendants’ counterclaim in ejectment until after the trial of'the plaintiff’s issues raised by the complaint and the…

<p>Appeal by the plaintiffs, Lila Morrison Weed and another, infants, by Elizabeth Clark, their guardian ad litem, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of January, 1920, as resettled by an order entered in said clerk’s office on the 13th day of February, 1920, staying the trial of the issues in the ejectment action brought by the children of Thomas M. Weed against Manuel Joseph Brazill until the trial of the equitable issues in the action brought by Brazill to establish his title to the premises in question.</p>

Appeal by Loretta A. Welch and C. Willard Rice, as special guardian, from, a decree of the Surrogate’s Court of the county of Ontario, entered in the office of said surrogate on the 11th day of January, 1919, settling the accounts of the executor and directing a distribution of the assets.

Appeal by the defendant, Samuel P. Tull, 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 20th day of April, 1920, vacating a judgment and opening the defendant’s default as requires the defendant to stipulate that he will consent to a reference and requiring the defendant to pay to plaintiffs the costs of the action to the date of the order.

Appeal by the defendant; Samuel P. Tull, 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 20th day of April, 1920, vacating a judgment and opening the default of defendant, as requires the defendant to stipulate .that he will consent to a reference and requiring defendant pay to plaintiffs the costs of the action to the date of the order.

Appeal by the defendant, Maryland Casualty Company, from a 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 27th day of October, 1919, affirming a .judgment of the City Court of the City of New York in favor of the plaintiffs, and an order denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Insurance — policy against liability caused by negligence — payment of judgment by insurance company — failure of party liable to defend negligence action brought against insured — subrogation of company paying judgment to rights of insured — payment of judgment from funds of insured not essential to subrogation.</p> <p>Where the plaintiff issued a general liability policy of insurance to a corporation “ against loss from the liability imposed by law” upon it “ for damages * * * on account of bodily injuries accidentally suffered by any person or persons other than ” its employees “ while within or upon said premises,” and paid the amount of a judgment obtained against the insured by a person who was injured through the negligence of the defendant, whose employee left an unguarded opening in the sidewalk in front of the insured’s premises, which action the defendant refused to defend when called upon to do so, the plaintiff is subrogated to the rights of the insured and may recover of the defendant, and a demurrer to a complaint stating the facts aforesaid cannot be sustained on the theory that the payment of the judgment by the plaintiff for and in behalf of the insured was voluntary so that no loss to the insured is established under the policy.</p> <p>It is not essential to the right of subrogation that the payment of the judgment should have been made from the funds of the insured, especially so, where the policy itself contained a clause providing for subrogation.</p>

<p>Appeal by the plaintiff, Weber & Heilbroner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of November, 1919, upon the dismissal of the complaint by direction of the court at the opening of the plaintiff’s case.</p>

<p>Appeal by the defendant, George "A. Till, from a judgment of the Supreme Court in favor of the plaintiff, rendered upon an ordre made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of July, 1919, affirming a judgment of the City Court of Buffalo, rendered on the 2d day of June, 1919, determining that the defendant violated chapter 9, section 5, subdivision 3, of the ordinances of the city of Buffalo, and that for said violation he pay a fine of fifty dollars.</p>

<p>Insurance — mutual benefit insurance — certificate taken out and delivered to beneficiary in consideration of her marrying insured — right of insured to change beneficiary — payment of premiums by third persons as giving them claim on certificate — Statute of Frauds.</p> <p>In an action by the beneficiary named in a contract of life insurance evidenced by a benefit certificate issued by the Knights of the Maccabees of the World to recover the insurance it appeared that the insured obtained the insurance and made the plaintiff beneficiary therein in fulfillment of an oral promise so to do in consideration of the plaintiff’s promise to marry Mm; that several years prior to the death of the insured he was suspended but was reinstated on the payment of Ms dues, etc., by the defendants, and that subsequent to Ms reinstatement he applied for and secured a new certificate bearing the same number, with the defendants named as beneficiaries without the consent of the plaintiff and the defendants paid the premiums after the new certificate was issued.</p> <p>Held, that the fact that the defendants after the insured was suspended paid the montMy rates and per capita tax for wMch the insured was in arrears together with all dues and assessments for wMch he would have been liable during the period of Ms suspension, including the amount due for the month in which he was reinstated, gave them no title to the insurance; at best they would be entitled only to a lien upon the insurance moneys for the amounts paid.</p> <p>The evidence sustains the finding of the existence of the oral agreement by wMch in consideration of the plaintiff’s promise to marry the insured he promised to take out the insurance and maintain the same for her benefit.</p> <p>The said oral agreement was not void under the Statute of Frauds (Pers. Prop. Law, § 31) because it was carried out by the insured; at the time of Ms death it was an executed contract.</p> <p>When the certificate was taken out and delivered to the plaintiff she acquired a vested interest therein that could not be affected by the effort of the insured to change the beneficiaries therein, and subdivision 2 of section 231 of the Insurance Law having been enacted after the agreement was made and the certificate was taken out did not give the insured the right to make the change.</p>

<p>Street railways — negligence —• action for injuries received by collision at crossing between plaintiff’s automobile and defendant’s trolley car operated on tracks of railroad — negligence and absence of contributory negligence for jury — plaintiff not guilty of contributory negligence as matter of law where flagman did not give warning — right of way at street crossing between vehicle and trolley car operated on track of railroad.</p> <p>In an action to recover for personal injuries caused by one of defendant’s ears striking plaintiff’s automobile while it was stalled on the track and pushing it against the plaintiff, it appeared that the defendant was operating its cars at the place of the accident over the tracks of a steam railroad and that the accident occurred at a crossing which was equipped with gates and guarded by a flagman; that the gates were out of repair temporarily and not in operation; that the plaintiff, who was familiar with the place, did not know that the gates were not in operation; that at the point of the accident there were three tracks, and the plaintiff in order to avoid a collision with a railroad train jammed on his brakes and turned on the first track and there stalled his engine, and before he could start it again the defendant’s car struck the plaintiff’s automobile, pushing it against the plaintiff and injuring him. There was a conflict in the evidence as to whether the flagman warned the plaintiff.</p> <p>On all the evidence, held, that the questions of negligence and freedom from contributory negligence were for the jury.</p> <p>If the flagman was at his shanty and gave no signal, it cannot be held as a matter of law that the plaintiff was guilty of contributory negligence in approaching so closely to the first track before discovering the train on the middle track.</p> <p>The acts of the plaintiff after his engine stalled may be considered as taken in an emergency and it was for the jury to decide in regard to them. It was for the jury to determine whether or not the motorman, who knew that the gates were not working, should have seen the plaintiff and recognized his predicament in time to stop the car.</p> <p>A fast suburban trolley line operated over the tracks of an ordinary railroad has a paramount and superior right of way over vehicles at street crossings.</p> <p>The charge that the defendant did not have a superior right of way at. the street crossing was prejudicial, for if the correct rule had been charged the jury would have been more apt to hold that the motorman was not negligent in not starting to stop when he was near enough to avoid the collision, and to find that the plaintiff should have exercised a more vigilant outlook.</p>

<p>Negligence — action against contractor for injuries received while using temporary stairway to elevated railway station — stairway built under separate agreement and accepted prior to injury—■ station not complete at time of injury.</p> <p>A contractor is not liable for injuries sustained by one who was thrown down while stepping upon a temporary wooden stairway at the foot of a main stairway leading to an elevated railway station, where it appears that the contractor had a contract with the Public Service Commission to erect the station and the permanent stairway leading thereto; that the erection of the temporary stairway was made upon the special oral instructions of the engineer of the Commission and was accepted by the engineer and the cost thereof was paid entirely outside the contract price for the station; that the station was open to the public before it was completed and the injury occurred prior to the completion thereof, and that the condition of the stairway which caused ¡the injury was due to the fact that the earth on which it rested was washed out by rain after it had been accepted. Though the contractor’s work on the station proper was not completed at the time of the accident it was not responsible for the injury, even though it had actual notice that the steps had become insecure, for as soon as the temporary stairs were accepted its responsibility for their repair ceased.</p>

Appeal by the defendant, Acker, Merrall & Condit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 18th day of February, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Louis C. Tiffany, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 3d day of December, 1918, upon the decision of the court rendered after a trial at the Nassau Special Term dismissing the complaint upon the merits. Plaintiff, as a riparian owner, sued in equity.

<p>Principal and agent — action by agent for commissions and for breach of contract — trial — specific verdicts upon separate and distinctive causes of action — court cannot treat such verdicts as general verdicts.</p> <p>Where sales agents for a certain territory sued their principal upon two causes of action arising out of the contract of agency, first, to recover commissions due which are alleged to amount to a certain sum, and second, to recover damages sustained by the defendant’s repeated breaches of the contract alleged to amount to a certain sum, and the jury specifically awarded the plaintiffs a larger amount on the first cause of action than demanded therein, and also gave a verdict for a different specific sum upon the second cause of action, the trial court had no power to make the specific verdict a general one by adding together the two sums awarded so as to reach a total which it deemed justified by the evidence in both causes of action. By so doing the court substituted its own judgment for that of the jury.</p> <p>As under the pleadings the plaintiffs could not recover upon the first cause of action more than the sum demanded, the verdict in their favor must be reduced to that amount.</p>

Appeal by the defendant, Louis Rosenstein, from a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of February, 1919, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Addie M. Losee, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 3d day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, J. Hamburger & 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 22d day of March, 1920, granting plaintiff’s motion for an injunction pendente lite.

Appeal by the plaintiff, Investment Registry 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 19th day of February, 1920, as resettled by an order of said court entered in said clerk’s office on the 25th day of- February, 1920, denying plaintiff’s motion for judgment on the pleadings.

<p>Landlord and tenant — lease containing option to terminate on sale of premises — option properly exercised — termination of sublease.</p> <p>In an action to recover possession of certain premises held by the defendant under a sublease from the lessee of the plaintiff’s predecessor in title it appeared that the lease to the defendant’s lessor contained a clause giving to the lessor the option to terminate the lease on the first of any month in case of a sale of the premises, that the sublease to the defendant contained no such provision, and that the owner of the building exercised its option to terminate the lease. On all the evidence, held, that the option given to the landlord under the lease to the defendant’s lessor was rightfully and properly exercised, that there was no violation in the surrender of the premises of the terms of the option, but that such surrender was under and pursuant to the same, and that the sublease of the defendant expired with the termination of the main lease.</p>

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

Appeal by the plaintiff, Trustees of the Presbytery of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of January, 1920, sustaining the demurrer of the defendant Reese to the complaint and granting leave to plaintiff to serve an amended complaint.

<p>Bills of lading — when bill non-negotiable under Uniform Bills of Lading Act (Pers. Prop. Law, § 187 et seq.) — non-negotiable bill not made negotiable by authorizing delivery to assignee of consignee — rights of assignee of non-negotiable bill — delivery of goods by carrier without notice that non-negotiable bill of lading had been assigned — effect of failure to mark non-negotiable bill — when assignee acquires no rights against carrier — Federal Bills of Lading Act not applicable — State statute controlling in absence of Federal legislation.</p> <p>Under the Uniform Bills of Lading Act (Pers. Prop. Law, § 187 et seq.), a non-negotiable bill of lading is one in which it is stated that the goods are consigned or destined to a specified person, while in order to be negotiable the bill must state that the goods are consigned or destined “ to the order ” of a person named therein.</p> <p>Hence, a bill of lading issued by a carrier of goods to be transported to Ancon, Canal Zone, which merely states that the consignee is the “ Ford Motor Agency, Ancon, C. Z., or assigns,” is non-negotiable, for the addition of the words “ or assigns ” does not change the non-negotiable character of the bill.</p> <p>Such non-negotiable bill may be assigned or transferred by delivery and the transferee acquires against the transferor the title to the goods subject to the terms of any agreement between them. But as against the carrier the transferee acquires the right to notify it of the transfer of the bill and thereby secure to himself the rights that the transferor had immediately before such notification. Until notification the transferee acquires no right against the carrier.</p> <p>Hence, although the bill of lading aforesaid was delivered to the plaintiffs, who advanced the purchase price of the goods, the purpose being that the consignee would take up the bill and repay said sum at the place of delivery, the plaintiffs acquired no right against the carrier or a connecting carrier where no notice of the assignment of the bill was given to either of the carriers until after the goods had been delivered by them to the consignee, which the carrier had a right to do without taking up the bill of lading, in the absence of notice of the assignment.</p> <p>The failure of a carrier issuing a non-negotiable bill to mark it “ non-negotiable ” or “ not negotiable,” as required by section 194 of the Personal Property Law, does not change the character of the bill and render it negotiable, but under section 236 makes the person who, with intent to defraud, issues or aids in the issuing of such a bill guilty of a crime.</p> <p>While the Federal statutes would govern a shipment of goods from this State through a foreign country to the Canal Zone, where Congress has not legislated on such commerce the State has power to regulate the operation and effect of a contract for such shipment.</p> <p>The transaction aforesaid is not governed by the Federal Bills of Lading Act as it did not take effect before the bill was issued and said statute expressly provides that it shall not apply to bills made and delivered prior to the taking effect thereof.</p> <p>■ As there is no Federal legislation governing this case the State statute is controlling.</p>

<p>Appeal by Henry Bland Nedham, as executor, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 1st day of March, 1920, requiring the appellant to render an accounting.</p>

Appeal by the plaintiff, Nellie G. Middleton, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of October, 1915, upon the verdict of a jury, and also from an order entered in said clerk’s office on- the 12th day of August, 1915, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Isaac Perlman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 14th day of February, 1918, upon the verdict of a jury for $400.

Appeal by the plaintiff, Bertha Chysky, 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 7th day of January, 1920, upon the dismissal of the complaint by direction of the court at the opening of the case.

Appeal by the defendants, Eubin Eilenberg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of November, 1919, denying defendants’ motion to dismiss the complaint made at the close of the case and for a new trial made upon the minutes.

Appeal by the defendant, Henry Maillard, Incorporated, from a judgment of the Court of Special Sessions of the City of New York, Municipal Term, Part 1, rendered on the 26th day of March, 1918, convicting it of the crime of violating section 163 of the Sanitary Code of the City of New York. (See Code of Ordinances of City of New York, chap. 20, art. 9, § 163.)

Appeal by Maude Ogden Heath Jessup and others from part of a decree of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 7th day of October, 1919, judicially settling the account of the respondent, Howard Thayer Kingsbury, as executor and trustee of Samuel Frost, deceased, and also from an order entered in the office of said surrogate on the 29th day of July, 1919, denying a motion of the appellants for a trial of certain issues.

Appeal by the plaintiff, Nathan Bregstone, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of December, 1919, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, Edward Margolies, from a 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 10th day of December, 1919, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff.

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

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

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

<p>Attorney at law censured — public criticism of judicial decision — obligations of attorneys to court.</p> <p>Attorney at law, who was also an assistant district attorney for the county of New York, censured for his contempt of a Federal court by stating at a public meeting that a judicial decision of a judge of said court was not honestly rendered but was made in the interest of certain traction companies, and that if the people do not approve of such decision they should endeavor to impeach the judge, etc.,</p> <p>It is the duty of an attorney, especially one holding such public office, to refrain from unfounded public accusations tending to - arouse passion and to excite unrest and to destroy confidence in judicial integrity.</p>

Appeal by the plaintiff, Gladys Loftus, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 28th day of July, 1919, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiffs, Samuel Lipkien 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 New York on the 25th day of February, 1920, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the plaintiff, Blanche Guzzi, 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 January, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 19th day of January, 1920, upon which said judgment was entered.

<p>Appeal by the plaintiff, Title Guarantee and Trust Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of November, 1915, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

Appeal by the defendant, Cyclemotor Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of November, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on ■the 13th day of December, 1918, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis K. Schwartz, from a determination of the Appellate Term, first department, entered in the office of the clerk of the county of New York on the 27th day of October, 1919, affirming a judgment of the City Court of the City of New York in favor of the plaintiff, and an order denying a motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of November, 1919, upón the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 12th day of November, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Joseph Edelstein and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of May, 1919, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the plaintiff, Alden Coal Mining Company, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of July, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of July, 1919, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by Mary Minihan and another, as administrators, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 5 th day of May, 1920, denying their motion to require the temporary administrator herein forthwith to deliver to the administrators of said estate the cash assets withheld by him.

<p>Appeal by the defendant, James T. Lee, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of February, 1920, denying the motion of James T. Lee for leave to intervene and be made a party, defendant herein.</p>

Appeal by the defendant, Day-Elder Motors Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1920, denying its motion to set aside the service of the summons herein.

Appeal by the defendant, Edith O. Kaiser, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of August, 1918, upon the decision of the court, rendered after a trial on framed issues at the New York Special Term, dissolving the marriage between the parties and awarding the custody of the child to the plaintiff.

Appeal by the defendant, Joseph Krauss, from a judgment of the Court of Special Sessions of the City of New York, rendered on the 17th day of January, 1918, convicting him of the crime of petit larceny. On January 25, 1918, sentence was suspended and the defendant placed on probation.

Appeal by the relator, The City of New York, from that part of 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 21st day of October, 1918, which directs, that the assessment of a certain parcel of land be reduced and which directs the dismissal of the writ of certiorari as to other parcels.

Appeal by the defendant, W. Beckers Aniline and Chemical Works, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 6th day of November, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of October, 1919, 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 6th day…

<p>Eminent domain — condemnation of lands by Bronx Parkway Commission — market value of lands taken — award for probable prospective use — distinction between probability and possibility of future use — expert opinion — powers of commissioners — award not reversed for mere errors in admission or exclusion of evidence.</p> <p>On an appeal from a proceeding by the Bronx Parkway Commission to acquire title to lands by condemnation every intendment is in favor of the report of the commissioners awarding damages.</p> <p>Evidence given on such proceeding examined, and held, that the commissioners had not adopted an erroneous principle of assessment so as to make the award excessive or palpably unjust.</p> <p>In such proceeding the market value of the land may be considered in the light of its prospective use, even though the land be vacant, and expert opinion as to such use is in a sense “ speculative.”</p> <p>There is a difference between the probable and possible future use of lands, and the former may be considered in determining its market value in condemnation proceedings and this may be established by expert opinion. It is not the speculative feature of such testimony in itself that makes it incompetent, but rather speculation and remoteness.</p> <p>On the evidence, held, that the wide difference of opinion as to market value given by the experts of the respective parties did not indicate that an erroneous principle was adopted by the commissioners in making an award.</p> <p>The opinion of experts as to the availability of lands for future uses, while admissible on the question of market value, is not binding upon the commissioners who are entitled to exercise their own judgment and may arrive at their conclusion in disregard of the figures of any or all experts.</p> <p>In such proceeding mere errors in the admission or exclusion of evidence are not justification for reversal.</p>

Appeal by the plaintiff, Richard Schell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 21st day of June, 1919, upon the decision of the court rendered after a trial at the Richmond Special Term.

Appeal by the defendant, City of Yonkers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 13th day of November, 1919, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of January, 1920, denying defendant’s motion for a new trial made upon the minutes.

Cross-appeals by Paul R. Atkinson and by Maurice B. Atkinson, as administrator, and others, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said court on the 20th day of October, 1919.

Appeal by the defendant, George Hall, from a judgment of the County Court of the county of Kings, entered in the office of the clerk of the county of Kings on the 25th day of November, 1919, affirming a judgment of the Domestic Relations Court of the City Magistrates’ Court of the City of New York, Borough of Brooklyn, convicting defendant of a violation of section 494 of the Penal Law.

Appeal by the defendant, PeUigrino Morano, from a. judgment of the Supreme Court, rendered on the 20th day of May, 1918, convicting him of the crime of murder in the second degree, and also from an order denying his motion for a new trial made upon the minutes.

Motion by the respondent, The People of the State of New York, for reargument of an appeal from a judgment of the Court of Special'Sessions of the Peace of the City of New York, county of Kangs, 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…

Reargument of an appeal by William P. Burr, as corporation counsel 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 4th day of October, 1919, granting a writ of mandamus requiring the corporation counsel to institute proceedings under the Street Closing Act (Laws of 1895, chap. 1006) to determine the compensation due said Christian Scheibel for closing…

<p>Slander — words not slanderous per se — pleading — innuendo — complaint stating cause of action.</p> <p>Although spoken words may not be slanderous per se their meaning to those in whose presence and hearing they were spoken may be considered and a plaintiff may allege matters of inducement which give a defamatory meaning to words otherwise innocuous.</p> <p>Complaint in an action for slander examined, and held, sufficient as against a demurrer in that it sufficiently alleged matters which indicated that the persons who heard the defendant’s words knew that he charged the plaintiff with the crime of stealing a check and forging a signature thereto.</p>

<p>Appeal by the plaintiff, Samuel W. Traylor, 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-day of- , upon the verdict of a jury, and also from an order entered in said clerk’s office on the-day of-, denying a motion for a new trial.</p>

<p>Mandamus — act commanded to be performed to be specific — peremptory writ to be based on clear legal right — city of New York— compelling railroad company to change line equipment to permit use of cars of another railroad under trackage agreement — contract between city and defendant for construction of road imposing no obligation to so construct as to permit use of cars of different type adopted by other railroad.</p> <p>The proper function of the writ of mandamus is to compel the doing of a specific thing based upon a legal right.</p> <p>Accordingly, a peremptory writ should not have been issued to compel the defendant to comply -with the order of the Transit Construction Com- . missioner requiring the defendant to make all such changes in the equipment of certain subdivisions of a rapid transit railroad line in New York city as may be necessary to provide for the exercise of the trackage rights reserved by the city and granted to another railway company, for the order is too indefinite to be enforced by mandamus in that it does not point out specifically the changes to be made, nor recite any reason why the structural equipment must be radically altered merely for the purpose of allowing another company to use the tracks.</p> <p>A peremptory writ of mandamus will not be issued unless it appears that there is a clear legal right to have that done which it is petitioned should be commanded to be done.</p> <p>A peremptory writ of mandamus should not have been issued to compel the defendant to comply with the order of the Transit Construction Commissioner of New York city which required the defendant to alter its line equipment so as to permit the use by another railroad under the trackage agreement entered into between the two railroads and the city of cars of a type different from those in use on the existing railroads in New York city, for the contract between the defendant and the city under which the railroad was constructed and leased by the city, and which provided for the making of trackage agreements, did not impose any obligation on the defendant to construct its part of the line so as to permit the use of cars which thereafter might be adopted by the other railroad of a type radically different from those in common use, but on the contrary the contracts for the construction of different parts of the line entered into by the city and the defendant and by the city and the other railroad specifically required cars of a type that might be used interchangeably on the existing railroads and provided that the cars should be of approved type and dimensions.</p>

Appeal by the defendant, The County of Suffolk, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Suffolk on the 20th day of February, 1920, denying the defendant’s motion for judgment on the pleadings, consisting of the complaint and answer. Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice Cbopsey at Special Term.

<p>Summary proceedings — proceedings against receiver appointed in action to foreclose leasehold mortgage — stay on application of plaintiff in foreclosure — insufficiency of moving papers.</p> <p>An order staying summary dispossess proceedings against a receiver appointed in an action to foreclose a mortgage on leasehold property based on the non-payment of rent, should not be granted on the application of the plaintiff in the foreclosure action where the owners of the property were not made parties to that action and did not appear therein except specially . to apply for permission to commence summary proceedings against the receiver, and the theory that the summary proceedings were not sustainable because the provision as to the rent reserved had been modified was not supported by papers of any probative force, but the only papers presented on the application were an unverified proposed amended and supplemental complaint and the affidavit of an attorney associated with the plaintiff’s attorneys in the action who was not shown to have had any personal knowledge as to the alleged modification, and the absence of an affidavit from the proper parties was not explained.</p>

<p>Appeal by the defendants, The Syracuse, Binghamton and New York Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 15th day of May, 1917, upon the decision of the court rendered after a trial of the New York Special Term setting aside and canceling a certain lease made by the Syracuse, Binghamton and New York Railroad Company to the Delaware, Lackawanna and Western Railroad Company.</p> <p>The opinion of the Special Term is reported in Westchester F. I. Co. v. &, B. & N. Y. 22. 22. Co. (97 Mise. Rep. 471).</p>

<p>Carriers — suit to recover damages for delay in transporting goods — trial — variance between pleading and proof — failure of carrier to deliver goods because of defective marking — evidence not justifying recovery — opinion of witness as to proper method of transportation.'</p> <p>Action against a common carrier to recover damages alleged to have been caused by its delay in transporting certain merchandise from San Francisco to Boston. The bill of lading specified the route by which the goods were to be shipped and it was understood that the goods, which were silk flags, were to go by expedited freight service which the defendant maintained for such goods, and for which it charged a special rate. • Although in the complaint the plaintiff claimed a special contract for the delivery for a particular market, no such agreement was established at trial, and the only claim is that the expedited service agreed to by the defendant was not fulfilled, so that it became liable for a loss occasioned by a drop in the market for such goods between the time when they should have arrived and the date of the arrival. It appeared that the goods left San Francisco on August twenty-fourth and were not delivered in Boston until October first, although by reasonable dispatch they should have been received on September first, but it further appeared by the testimony of witnesses that upon arrival at Boston the only legible mark on the cases containing said goods was the name of said city, and that the name of the consignee did not appear, and that there were no other markings which identified the goods. On all the evidence,</p> <p>Held, that the plaintiffs failed to establish by a preponderance of the evidence that the defendant did not transport the goods in question with reasonable dispatch, and that a finding to the contrary by the trial court must be reversed as against the weight of evidence.</p> <p>Moreover, the plaintiffs having failed to establish a liability on special contract as set forth in the complaint and having only proved a contract of carriage under a standard bill of lading, they were not entitled to recover upon the ground that the defendant did not transport the goods with reasonable dispatch, where exception to such theory of liability was taken by the defendant at trial and there was no motion to amend the complaint. Such variance between pleading and proof requires a reversal of judgment for the plaintiffs.</p> <p>Where the contract of carriage was evidenced by a bill of lading, it was error to allow a witness for the plaintiffs to give his opinion as to how the goods should have been transported.</p>

Appeal by the plaintiff, Louis Portugal, 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 March, 1920, denying plaintiff’s motion for judgment on the pleadings and sustaining defendants’ demurrers to the complaint.

<p>Appeal by the defendant, Arthur G. Humphries, from an order of the Supreme Court, made at a Special Term held in the county of Kings, for the county of Nassau, and entered in the office of the clerk of the county of Nassau on the 5th day of April, 1920, denying the said defendant’s motion for judgment on the pleadings.</p>

Appeal by the defendant, Jacob E. K. Morris, from an order of the Supreme Court, made at the Cattaraugus Special Term and entered in the office of the clerk of the county of Cattaraugus on the 10th day of May, 1919, limiting the scope of the examination of the defendant before trial.

Appeal by the defendant, Manhattan Mortgage Company, from that part of 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 29th day of September, 1919, upon the decision of the court rendered after a trial at the Bronx Special Term sustaining and foreclosing a mechanic’s lien filed by the plaintiff against the premises described in the complaint and directing the chamberlain to pay over to plaintiff a…

Appeal by the plaintiff, Isaac Kaston, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 16th day of January, 1920, upon the decision of the court rendered after a trial at the Bronx Special Term dismissing the complaint and canceling a lis pendens filed by the plaintiff, on the motion of the defendants for a dismissal made at the opening of the trial.

Appeal by the defendant, The Starr Piano Company, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 24th day of December, 1919, affirming 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 June, 1919, and also affirming an order of said City Court, entered on the 26th day of June, 1919, denying the defendant’s…

Appeal by the defendant, People’s Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of July, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of July, 1919, denying defendant’s motion for a new trial made upon the minutes.

<p>Proceeding for the removal of a justice of the Municipal Court of the City of New York upon charges.</p>

<p>Appeal by the defendant, Greenwald Petticoat Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 29th day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1919, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Paulina Schoenholz, from a judgment of the Supreme Court in favor of the defendant New York Life Insurance Company, entered in the office of the clerk of the county of New York on the 10th day of March, 1919, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.</p>

Appeal by the defendant, American Steel Export Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of January, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of January, 1920, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Samuel Segar, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of February, 1919, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, John E. Harris, as executor, 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 March, 1919, upon the report of an official referee.

Appeal by the defendant, Ray Gross, 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 4th day of March, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, David Mackenzie, from a judgment of the Supreme Court ip favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of July, 1919, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Sacred Associates Realty Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1920, overruling the defendant’s demurrer to the complaint and denying its motion for judgment upon the pleadings dismissing the complaint.

Appeal by the defendant, Sacred Associates Realty Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of May, 1920, granting the plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, Frieda Hart, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1920, overruling the defendant’s demurrer to the amended complaint.

<p>Sales — contract to deliver certain percentage of goods ordered, construed — when seller entitled to recover.</p> <p>Under a written contract for the purchase of “ About Ten thousand (10,000) bags ” of coffee, and further providing that “ Coffee must be actually delivered to within five (5%) per cent, more or less of the quantity sold,” a delivery of 9,500 bags of coffee is a fulfillment of the contract and the seller is entitled to recover.</p>

Appeal by the defendant, Sydney Moses, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of June, 1920, upon the verdict of a jury rendered by direction of the court.

Certiorari issued out of the Supreme Court and attested on the 10th day of December, 1919, directed to Maurice Simmons and others, as and constituting the board of assessors of the city of New York, 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 dismissing the relator’s claim for damages claimed to have been sustained by a change of grade of West One Hundred and Fifty-fifth street, in the…

Appeal by the plaintiff, Educational Films Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May,. 1920, denying the plaintiff’s motion to vacate an order for the examination before trial of George A. Skinner, president of the plaintiff company.

<p>Appeal by Louis P. Keogh 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 5th day of May, 1920, granting the petitioner’s application to set aside the election of directors of the above-named corporation and for a new election.</p>

<p>Appeal by the plaintiff, East 82nd Street Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of May, 1920, denying the plaintiff’s motion for an injunction pendente lite.</p>

<p>Appeal by the plaintiff, Henry James Johnson, as administrator, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 2d day of October, 1917, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.</p>

<p>Principal and surety — fidelity bond and agreement to indemnify surety against loss thereon — provision making proof of payment by surety conclusive — when such agreement not against public policy.</p> <p>Where the defendant for whom the plaintiff had issued a fidelity bond insuring the honesty of the defendant in his employment made an agreement to indemnify the plaintiff and save it harmless from all loss or damage it might sustain by reason of the execution of said bond, a provision in the latter agreement that vouchers or other proper evidence of payment of any claim by the plaintiff for loss or damage in connection with such bond shall be conclusive evidence of the fact and the amount of liability, provided such payment shall have been made by the plaintiff in good faith, is not void as against public policy.</p> <p>The defendant is liable on such agreement where there is proof of good faith on the part of the plaintiff in paying a defalcation of the defendant.</p>

<p>Street railways — negligence — death caused by Ml from street car — evidence not justifying recovery — failure to show cause of death.</p> <p>In an action to recover for the death of a passenger, who was thrown from or fell from the defendant’s street car near the terminus of the line, the liability of the defendant was predicated upon the theory that the car was operated on a cross-over switch at an excessive rate of speed, and that the rails above the seats of the car designed to prevent passengers from boarding the same on the wrong side were inadequate and insufficient. Evidence examined, and held, that the complaint should have been dismissed not only for the failure to establish the negligence of the defendant, but also because the plaintiff failed to prove that the death of the passenger was caused by the accident rather than by the results of alcoholic poisoning.</p>

Appeal by the defendants, Julia Adelaide Barbour and others, as executors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1920, denying the defendants’ motion for judgment on the pleadings consisting of a complaint and an answer.

Appeal by the plaintiff, Beaver Engineering and Contracting 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 21st day of March, 1919, upon the verdict of a jury rendered by direction of the court. The ground of the appeal is that the damages are insufficient.

Appeal by the plaintiff, C. J. O’Brien, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of December, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of December, 1919, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Anna V. Belden, individually and as executrix, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of November, 1919, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Frank Drake, 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 2d day of January, 1920, upon the dismissal of the complaint by direction of the court' at the opening of the trial at Trial Term.

Appeal by the defendant, E. Fougera & Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of June, 1919, upon the decision of the court rendered after a trial by the court at Trial Term, a jury having been waived.

Appeal by the defendant, Ervin C. Field, from an order of the Supreme Court, made at the Cortland Special Term and entered in the office of the clerk of the county of' Chenango on the 24th day of July, 1919, granting plaintiff’s motion for a new trial.

Appeal by the defendant, Village of Castleton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eensselaer on the 22d day of July, 1918, upon the decision of the court rendered after a trial before the court and a jury at the Eensselaer Trial Term, both parties having consented at the close of the trial that the issues be determined by the court without a jury.

<p>Trial — charge — right to have charge on preponderance of evidence— necessity that court use exact language of counsel in giving requested charge.</p> <p>In an action to recover upon a life insurance policy upon the life of the plaintiff’s husband, the sole question in dispute was whether the first premium had been paid, and the court charged that a fair preponderance of the evidence entitling the plaintiff to recover “ does not mean the greatest number of witnesses, but it means that evidence which appeals to you as being nearer the truth than the other .evidence in the case.” The defendant then requested the court to charge that “ if the jury should find the evidence evenly balanced, or unable to tell where the truth lies, then their verdict must be for the defendant.” The court in refusing to give the charge as requested on the ground that it had already been charged, stated “ That does not mean the most; it means if the evidence is evenly balanced as to credibility of the witnesses given and the number of witnesses then your verdict must be for the defendant, of course.” Held, that the request was proper and that it was error to refuse it unless the jury had been otherwise charged to the same effect.</p> <p>It is unnecessary for the court, in its charge, to adopt the language of counsel upon a point already sufficiently charged.</p> <p>The use of the words by the court “ and the number of witnesses,” after speaking of a balance as to the credibility of the witnesses, was not prejudicial to the defendant as the number of witnesses upon the disputed question was equal.</p> <p>The request made by the defendant’s attorney to charge was substantially complied.with and in a manner not prejudicial to the defendant.</p>

<p>Attorney and client — assignment of attorney to defend person not charged with capital crime — right to compensation from county.</p> <p>An attorney assigned by the court, under section 308 of the Code of Criminal Procedure, to defend a person charged with a crime not punishable by death is not entitled to compensation from the county.</p>

Appeal by the defendant, Hugh Lee Kirby, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of January, 1920, as resettled by an order entered on the 11th day of March, 1920, denying the defendant's motion to vacate an order of arrest.

Appeal by the defendant, France and Canada Steamship Company, Limited, 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 4th day of March, 1920, upon the report of a referee awarding damages for a breach of a contract whereby plaintiff agreed to ship and defendant to carry 3,000 tons of copper from New York to Genoa upon steamships of defendant during December, 1916, and January, 1917.

<p>Appeal by the defendant, Ignatz Luft, from a judgment of conviction, rendered in the Supreme Court, Extraordinary Trial Term, New York county, on the 19th day of April, 1918, upon the second count of an indictment, which count charged the defendant with the crime of making a false statement of the result of the canvass of the ballots cast at an official primary election held on September 19, 1917.</p>

Appeal by the defendant, Joseph Lilymeld, from a judgment of conviction, rendered in the Supreme Court, Extraordinary Trial Term, New York county, on the 19th day of April, 1918, convicting the defendant of willfully making a false statement of the result of a canvass at a primary election held on September 19,1917, in violation of subdivision 12 of section 751 of the Penal Law.

Appeal by the plaintiff, William B. Mitchell, 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 18th day of December, 1919, upon the decision of the court, rendered at the New York Special Term, dismissing the complaint, and also from an order entered in said clerk’s office on the 30th day of August, 1919, denying plaintiff’s motion for a judgment on the pleadings, and also from orders entered…

Appeal by the defendant, Herman W. Hoops, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1919, granting plaintiff’s motion for a new trial, and setting aside the verdict rendered in defendant’s favor.

Appeal by the defendant, John H. Delaney, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1920, granting relator’s application for an alternative writ of mandamus.

Certiorari issued out of the Supreme Court and attested on the 30th day of June, 1919, directed to Walter H. Knapp and others, 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 a franchise tax upon the relator under article 9-A of the Tax Law (as added by Laws of 1917, chap. 726) for the year beginning November 1, 1917,…

Appeal by the plaintiff, The Trustees of the Sustentation Fund of the Reformed Episcopal Church, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 21st day of January, 1919, upon the decision of the court, a jury having been waived.

<p>Public Service Commission — telegraph corporation — power to determine to whom it shall extend credit — powers and jurisdiction over telegraph corporations—franchise rights outside of territory designated in charter — power to compel one telegraph corporation to extend credit to another.</p> <p>The power of a telegraph corporation to extend credit for service is purely administrative, and is clearly within the scope of the powers conferred upon the board of directors by section 34 of the General Corporation Law, and is not abridged by anything in the Transportation Corporations Law.</p> <p>The Public Service Commission does not have general supervisory powers over the business management and policy of a telegraph corporation, but only over those matters in which the public, as distinguished from the stockholders, have an interest.</p> <p>The Public Service Commissions Law having specifically enumerated the powers of the Commission in reference to telegraph corporations, its power is limited to those specifically mentioned, for the enumeration of powers with respect to a particular subject-matter is a negation of all other analogous powers with respect to the same .subject-matter.</p> <p>Section 97 of the Public Service Commissions Law, providing, in effect, that whenever the Commission shall be of the opinion, after a hearing, that the rules, regulations or practices of any telegraph corporation affecting rates, charges, rentals or service are unjust, unreasonable or unjustly discriminatory or unduly preferential or in any way in violation of law, the Commission shall determine the just and reasonable rates, charges and rentals to be thereafter observed, does not authorize the Public Service Commission to fix, by order, the persons or corporations which shall be given credit by a telegraph corporation.</p> <p>The giving or withholding of credit for the few days involved in the practical administration of telegraph companies is not such an “ unjust, unreasonable or unjustly discriminatory or unduly preferential ” practice as to have any appreciable effect upon the rates or service of those corporations.</p> <p>A transportation or public service corporation has no franchise rights or authority outside of the territory designated in its charter; it is confined to the “ general route and the points to be connected,” and it has no power to operate outside of the territory thus defined in its charter.</p> <p>The Public Service Commission has no power to order the Western Union Telegraph Company to extend credit to the Postal Telegraph-Cable Company for charges on messages destined to points at which the Postal Telegraph-Cable Company has no office, and which that company may transfer to the Western Union Telegraph Company for transmission.</p> <p>John M. Kellogg, P. J., and Cochrane, J., dissent, with opinion.</p>

<p>Pleadings — bill of particulars — when not granted — rule 23 of General Rules of Practice —formal affidavit of merits not sufficient —sufficiency of affidavit on motion for bill of particulars.</p> <p>In an action to recover damages caused by the plaintiff’s boat colliding with an obstruction in a river alleged to have been placed there by the defendants, wherein one of the defendants in its answer makes a general denial of the material allegations of the complaint, a bill of particulars should not be granted at the' instance, of said defendant, where it is clear that the defendant, by means of cross-examination of the plaintiff’s witnesses and the introduction of testimony upon its own behalf, will be able to bring to the attention of the court and jury all of the facts bearing upon the issue without the aid of a bill of particulars.</p> <p>In the absence of controlling reasons, the court ought not to limit the plaintiff’s scope of proof by confining it to a detailed bill of particulars.</p> <p>The requirements of rule 23 of the General Rules of Practice are not satisfied by the affidavit of an attorney in the case that in his opinion a bill of particulars is necessary, which gives no facts on which such an opinion may be properly based; an affidavit of the party is demanded by the rule.</p> <p>Under rule 23 of the General Rules of Practice the moving papers on an application for a bill of particulars must show to the court the facts and circumstances from which merit in the application for relief may be inferred; a formal affidavit of merits is no longer sufficient.</p> <p>The affidavit on which the motion for a bill of particulars was made was wholly inadequate in that it merely stated the general purpose of the action, the amount of damage claimed, the substance of the answer, and that the “ defendant and all of its officers, including deponent, are entirely ignorant of the faets bearing on the amount of damage alleged to have been sustained by the plaintiff, and of each and every matter regarding which a bill of particulars is asked in the annexed notice of motion, nor has the said defendant any means of ascertaining said facts except from the plaintiff.”</p> <p>The plaintiff having alleged that the obstruction was improperly placed in the river at a designated point, and that it resulted in the destruction of its boat, the said defendant was not entitled to a bill of particulars stating when the steamboat was built; of what material it was built; what was its length over all and its width over all; what was its capacity or tonnage, both gross and net, and many like questions.</p>

Appeal by the defendants, Chic Cloak and Suit Company, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 24th day of October, 1919.

Appeal by the defendant, Fonda, Johnstown and Gloversville Railroad Company, from a decision and award of the State Industrial Commission, made on the 11th day of September, 1919, modifying a previous award made on the 14th day of October, 1918, with notice of intention to bring up for review an .award of said Commission made on the 14th day of October, 1918.

Appeal by the defendant, Third Avenue Railway Company, from a decision and award of the State Industrial Commission, made on the 22d day of December, 1919, after reopening the case and taking additional testimony, and also from a decision and award of the said Commission made on the 31st day of July, 1919.

Appeal by the defendants, William Barnet and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 21st day of January, 1920, upon the verdict of a jury rendered by direction of the court upon motion by both parties.

Appeal by the defendants, Simon Natkin and another, from a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of Sullivan county on the 22d day of November, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of December, 1918, denying defendants’ motion for a new trial made upon the minutes.

<p>Principal and agent — real estate broker’s action for commissions — failure to agree upon complete terms of sale — refusal to sell by owner — measure of damages.</p> <p>A real estate broker who agreed to obtain a purchaser for the plaintiff’s premises under an agreement which entitled, the broker to receive as compensation any sum paid for the property in excess of a stated amount which the owner was to receive is not entitled to recover on the theory that commissions have been earned because the plaintiff procured a purchaser willing to pay a price in excess of that fixed by the owner if in fact the owner refused to sell and the complete terms of sale had never been agreed upon between the parties.</p> <p>Where the agreement as to the lowest net price which the owner is to receive does not embody the complete terms upon which the owner is willing to sell and leaves the details of such transaction to be determined thereafter by negotiations between buyer and seller, the broker’s commissions are not earned until the minds of the buyer and seller meet, not only in respect to the price, but also in respect to the other terms of sale which must be worked out and understood between them. The rule is different where the owner, has given the broker full and complete terms of the proposed sale. In such ease commissions are earned when the broker produces a customer willing and able to comply with such terms.</p> <p>As the defendant’s refusal to sell was wrongful, the plaintiff, while not entitled to recover for complete performance, may recover the actual damages sustained because of the defendant’s breach of the contract.</p>

<p>Mortgages — trust mortgage to secure bonds to be issued — mortgage providing for creation of sinking fund — when mortgagor should pay percentage into sinking fund on bonds pledged by it as collateral security.</p> <p>Where the terms of a trust mortgage executed, by the defendant to secure bonds to be issued by it required the defendant to pay to the trustee yearly a certain percentage of the principal of bonds issued and outstanding, said payments to be used as a sinking fund for the redemption of bonds secured by the mortgage, the trustee is entitled to receive said percentage on all bonds which have been executed by the defendant and delivered to the trustee for certification and redelivered thereafter to the defendant or upon its order, including bonds which the defendant pledged as collateral security to a loan made to it by a bank and which the defendant directed the trustee to hold as custodian only.</p> <p>When bonds have been issued, duly certified and delivered, not to the trustee but to a custodian for such disposition as the defendant may direct, they become “ issued and outstanding ” and so remain until canceled, retired or bought in under the sinking fund provision, and the defendant should pay to the trustee for the purposes of said fund the percentages agreed upon.</p> <p>Smith and Greenbaijm, JJ., dissent, with opinions.</p>

Appeal by the defendants, Maria R. Friedhoff and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 26th day of February, 1919, upon the verdict of a jury rendered by direction of the court, also from an order entered in said clerk’s office on the 29th day of January, 1919, denying defendants’ motion for a new trial made upon the minutes, and also from an order entered in said clerk’s…

Appeal by the defendants, Clinton T. Brainard and another, from a judgment of the Court of Special Sessions of the City of New York, rendered on the 30th day of January, 1920, convicting them of the crime of unlawfully possessing an obscene book in violation of section 1141 of the Penal Law.

<p>Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 9th day of February, 1920, appointing commissioners of appraisal to ascertain, appraise and determine the compensation to be made, if any, to said claimant, the E. I. duPont deNemours Powder Company, and all persons interested in the real estate described in said claim which has been or is proposed to be taken or affected by the city of New York, for the purposes indicated in chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906; and also to ascertain, appraise and separately determine and report, under the provisions of section 42 of chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906, what, if any, indirect damages and damages for decrease in value of the said business of the E. I. duPont deNemours Powder Company conducted on said premises said claimant has sustained and has become entitled to by reason-of the acquiring of land and water by the city of New York for an additional water supply, and by reason of the execution of any plans for said additional water supply by the city of New York under the provisions of chapter 724 of the Laws of 1905, as amended by chapter 314 of the Laws of 1906.</p>

Appeal by the defendant, The Village of Cobleskill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 8th day of January, 1920, upon the verdict of a jury for $500, and also from an order entered in said cleik’s office on the 15th day of January, 1920, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joseph P. Day, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 23d day of May, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of June, 1919, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Gas and electricity — proceeding to fix gas rates — determination of legitimate expenditures in comparison with those of other companies — consideration by Public Service Commission of facts dehors record — denial of opportunity to be heard — Public Service Commissions Law, section 72, construed.</p> <p>The Public Service Commission, in fixing the maximum rates chargeable by a gas company which proved that its expenditures for labor and maintenance in certain years amounted to certain sums, should not estimate the reasonable charges allowable to the gas company by taking into consideration the operating expenses of other gas companies in the State during the same period where no official reports or statements relating to the operation of the other companies were received in evidence and the relators had nó knowledge that comparisons were to be made with compames of other cities and they had no opportunity to explain the conditions existing in such other cities or to refute or overcome the inferences which were drawn by the Commission.</p> <p>As section 72 of the Public Service Commissions Law provides that “ a person or corporation shall have an opportunity to be heard in respect to the matters complained of,” the Commission in fixing rates chargeable by public service corporations cannot base its order on facts dehors the record concerning which such person or corporation has no knowledge until after the order has been made and thus has had no “ opportunity to be heard ” in respect thereto.</p>

<p>Appeal by the defendant, Frederick W. Parsons, from a judgment of the Supreme Court, rendered on the 21st day of September, 1918, convicting him of the crime of forgery in the third degree.</p>

Appeal by Mary Jane Perkett from a decree of the Surrogate’s Court of Essex county, entered in' the office of the clerk of said court on the 31st day of October, 1919, admitting to probate the last will and testament of Peter Perkett, deceased.

Appeal by Samuel Pierson Lockwood and another, residuary legatees, under the last will of John B. Pierson, deceased, from so much of a decree of the Surrogate’s Court of Rensselaer county, entered in the office of the clerk of said court on the 26th day of December, 1919, as determines that three legacies under the will of said deceased should be paid to the representatives of the deceased legatees, rather than to the appellant.

<p>Crimes — violation of subdivision P of section 30 of Liquor Tax Law — possession of liquor in town in which all traffic prohibited — indictment insufficient — necessity that indictment for statutory ofiense allege particular violation of statute.</p> <p>An indictment charging the defendants with the crime of having violated subdivision P of section SO of the Liquor Tax Law in having a quantity of liquor in their possession in a town in which the trafficking in liquors was prohibited to persons not having obtained and posted a liquor tax certificate in conformity with the Liquor Tax Law, does not charge a violation of the statute, for it is not a crime, except in those cases in which the people of a particular township have voted to exclude all traffic, to have liquor in one’s possession, and in such cases the question of whether there is a certificate or not is of no consequence.</p> <p>Where the crime sought to be charged is that the defendant had liquor in his possession in a town in which the people had voted to exclude all traffic in liquor, it is necessary to allege in the indictment that the town had duly taken the action which took it out of the general rule and made it a crime to have liquor in one’s possession. •</p> <p>Where the crime is statutory the precise facts necessary to constitute the offense, that is, the particular violation of the statute, must be alleged.</p>

<p>Workmen’s Compensation Law — accident of maritime nature — injury occurring on steamboat in public waters — consent of parties not conferring jurisdiction on State Industrial Commission — evidence showing that claimants were not dependents.</p> <p>An accident which occurs upon a steamboat while navigating public waters off One Hundred and Twenty-fifth street and the Harlem river is of a maritime nature and within the exclusive jurisdiction of admiralty, and compensation cannot be awarded therefor under the Workmen’s Compensation Law.</p> <p>The rule, is well settled that the consent of parties is not sufficient to avoid the fatal defect of a lack of jurisdiction, and, therefore, the State Industrial Commission being without authority to hear and determine the subject-matter of the controversy, an adjudication on the merits is a nullity and does not estop an assenting party.</p> <p>It seems, on all the evidence, that the mother and minor sisters of the decedent were not dependent upon his earnings at the time of the accident.</p>

<p>Workmen’s Compensation Law — injury arising out of and in course of employment — injury caused by being struck in eye with apple thrown by fellow-servant while engaged in horse-play with others.</p> <p>Where a claimant received an injury to his eye by being struck by a piece of apple thrown by a fellow-servant who at the time was engaged in horseplay with other fellow-servants around the claimant at a time when the ■claimant was attending strictly to his work, the accident was one “ arising out of and in the course of his employment,” as horse-play or pranks among employees during the hours of labor are as much an element of risk in an occupation as any other element "that enters into such risks. Kilby, J., dissents, with memorandum.</p>

<p>Motor vehicles — action by passenger to recover damages for injuries received by being struck by motor truck after alighting from street car — evidence presenting question as to negligence of defendant — liability predicated on violation of city ordinance, section 286 of Highway Law, and sections 11 and 13 of General Highway Traffic Law — plaintiff not guilty of contributory negligence as matter of law —■ damages — right of plaintiff to introduce evidence as to value of her services.</p> <p>In an action to recover damages for injuries received by the plaintiff by being struck by defendant’s motor truck, it appeared that the plaintiff alighted from a street ear at a switch, not a regular stop, and crossed towards the curb, and that the defendant’s truck, which was following the street car, in attempting to pass the car after it stopped, ran into the plaintiff. On all the evidence, held, that a question of fact for the jury was presented as to the negligence of the defendant.</p> <p>It seems, that the liability of the defendant could have been predicated on the violation by the driver of the motor truck of an ordinance of the city prohibiting any vehicle from passing any street car upon the same side as, or at the time when, passengers were being received or discharged, so as to interfere in any way with such passengers, and on the violation of section 286 of the Highway Law, and also on the violation of sections 11 and 13 of the General Highway Traffic Law.</p> <p>In view of the fact that the defendant’s motor truck was behind the street car from which plaintiff was about to alight, and that her rights on the pavement were equal to those of the defendant, her contributory negligence was a fair question of fact for the jury, and it cannot be held that she was guilty of contributory negligence as a matter of law.</p> <p>Though the plaintiff, a married woman, was not employed at the time of the accident and did not seek to recover damages for loss of wages, the admission of evidence as to the value of her services when employed did not constitute reversible error.</p> <p>If she had sought to give such evidence on the question of damages it would have been admissible.</p>

Appeal by the plaintiff, Joseph C. Grew, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 2d day of March, 1920, upon the dismissal of the complain b by direction of the court at the close of the case.

Appeal by the defendant, Mary O’Dell, from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 24th day of February, 1920, awarding the possession, care, custody and control of Lillian Beatrice Noel to the relators.

<p>Appeal by the plaintiffs, Jesse F. Paddleford and another, from a judgment and order of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 2d day of May, 1918, dismissing claimants’ claim.</p> <p>The opinion of the Court of Claims is reported in Paddleford v. State of New York (103 Mise. Rep. 398).</p>

Appeal by the defendants, Vito De Robertis and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 15th day of September, 1919, and also from an award entered in the office of said Commission on the 9th day of January, 1920.

<p>Workmen’s Compensation Law — sections 68 and 21 — hearsay evidence — presumption that claim was filed in time where records do not show otherwise.</p> <p>While the State Industrial Commission may receive hearsay evidence under section 68 of the Workmen’s Compensation Law, still there must be some legal evidence of a probative character of the facts outside of such hearsay statements.</p> <p>The evidence of the deceased’s brother and sister showing or tending to show dependency, was sufficient to make applicable the provision as to presumptions found in section 21 of the Workmen’s Compensation Law. Though the records show no indorsement indicating when the claim was filed with the State Industrial Commission, and the Commission makes no finding as to when the claim was filed, it may be presumed, under section 21 of the Workmen’s Compensation Law, that the claim was filed before the year, provided by the statute as a limitation, elapsed.</p>

Appeal by the defendant, Blake-Daniels Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the c erk of the county of New York on the 19th day of March, 1920, denying defendant’s motion to resettle an order appointing a receiver of the property of the defendant.

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office January 29, 1920, in the ejectment action brought by the infant children of Thomas M. Weed against Manuel Joseph Brazill, denying the plaintiffs’ motion for a receiver.</p>

<p>Trial — motion for preference—when denied.</p>

<p>Master and servant — negligence — Labor Law — tenant-factory — trial— instructions to jury —■ submission of issues to jury — requests to charge — denial thereof—exceptions.</p>

Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the New York county clerk’s office upon the verdict of a jury for $7,427.44, rendered by direction of the court, and also from an order entered in said clerk’s office denying the defendant’s motion to set aside said verdict and for a new trial. Judgment and order affirmed, with costs. No opinion.

<p>Appeal from an order of the State Industrial Commission, entered in the office of said Commission on the 31st day of March, 1919, rescinding an award made and entered on the 19th day of August, 1918.</p> <p>Decision affirmed. All concur, except John M. Kellogg, P. J.</p>

<p>Appeal from an award and decision of the State Industrial Commission, entered September 6, 1918, denying a claim for compensation.</p> <p>Decision affirmed. All concur, except Woodward, J., dissenting, with an opinion, in which Kiley, J., concurs.</p>

<p>Appeal from decisions and awards of the State Industrial Commission bearing dates July 11, 1919, and August 5, 1919.</p> <p>Award affirmed. All concur, except H. T. Kellogg, J., dissenting, with a memorandum.</p>

Appeal by the defendant, Phebe Ryan, from a judgment of the County Court of the county of Greene, rendered on the 12th day of December, 1918, convicting her of the crime of blackmail. Judgment of conviction affirmed. Ail concur, except Kiley, J., dissenting, with an opinion.

<p>Appeal from an award of the State Industrial Commission in favor of the claimant made on the 29th day of September, 1919.</p> <p>Award affirmed. All concur, except Kiley, J., dissenting, with an opinion.</p>

Appeals in the first proceeding from orders of the Supreme Court, made at the Erie Special Term and entered in the Erie county clerk’s office November 7 and 29, 1919, each denying a motion to vacate certain Special Term orders theretofore made in said proceeding. Appeal in the second case from a judgment of the Supreme Court, entered in the Erie county clerk’s office November 12, 1919, dismissing the complaint.

<p>Intoxicating liquors — JUguor Tax Law, section 33 — when evidence sufficient to authorize confiscation of liquor.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Erie county clerk’s office November 18, 1919.</p>

<p>Appeal by the plaintiff from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 17th day of April, 1919, dismissing his complaint.</p> <p>Judgment affirmed, with costs. No opinion. Jenks, P. J., Mills, Rich and Putnam, JJ., concur; Kelly, J., reads for reversal.</p>

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