Volume 193 — New York Appellate Division Reports

Appeal by the defendants, Nordenholt Corporation and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 3d day of February, 1919, and also from an award and decision dated the 16th day of June, 1919, and entered in the office of said Commission. (See 193 App. Div. 929; 195 id. -—.)

Appeal by the defendants, Lafayette Wiseman and another, from an award of the State Industrial Commission, made on the 5th day of August, 1919, affirming an award made on the 17th day of April, 1919, and making a further award.

Appeal by the defendants, Henry Card & Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 4th day of September, 1919.

! Separate appeals by the petitioners, Veronica M. Kohler and others, as executors and trustees, etc., and. by Veronica M. Kohler, individually, and by others, from the whole and parts of a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 21st day of November, 1918, confirming a report of a referee in proceedings for the construction of a will and settling the account of the trustees. . •

<p>Workmen’s Compensation Law — partial blindness following burns caused by gas — award sustained.</p> <p>A claimant under the Workmen’s Compensation Law after recovering and receiving an award for burns about the face and body by gas discovered that he was blind in his left eye and could see but little out of his right eye.</p> <p>Held, on all the evidence, that the blindness resulted from the injury and that an award therefor should be sustained.</p>

Appeal by the defendant, Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of June, 1919, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the 5th day of June, 1919, denying the defendant’s motion to set aside the verdict and for a new trial, made upon the minutes, in an action brought by the plaintiff to…

<p>Appeal by the defendant, 15 West 44th Street Company, Inc., from a judgment of the Supreme Court in favor óf the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of April, 1915, upon the decision of the court rendered after a trial at the New York Special Term, a verdict having been rendered in favor of the plaintiff on settled issues after a trial at the New York Trial Term decreeing foreclosure of a building loan mortgage, and also from an order, entered in said clerk’s office on the same day, denying defendant’s motion to set aside the verdict on the settled issues and for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Weckstein & Weckstein, 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 21st day of April, 1920, enjoining and restraining both defendants "from letting, allowing, permitting or suffering the appellant to enter into possession, use or occupancy of certain premises described in a lease between plaintiff and the defendant Arthur Wachtel under an agreement between him and the appellant by which he may attempt to sublet or assign part or all of the premises to the appellant without the written consent of the plaintiff.</p>

Appeal by Henry Dearborn, as guardian, etc., from a decree of the Surrogate’s Court of the county of New York, entered in the office of said court on- the 19th day of December, 1919, in so far as it construes the 9th clause of the will of Charles W. Durant, deceased, adversely to their claim to participate thereunder.

<p>Negligence — action to recover for injuries received by falling into excavation in street — failure to guard excavation — evidence presenting issue of fact with respect to defendant’s negligence —plaintiff not guilty of contributory negligence as matter of law — use of street by pedestrian whose eyesight is defective.</p> <p>In an action to recover for injuries caused by the plaintiff’s falling into an excavation made by the defendant in a street - near a crosswalk, it appeared that the accident happened at the noon hour while no one was working there; that at the time of the accident there was no one stationed to guard the excavation or to warn pedestrians, and that the defendant failed to erect such a fence or railing about the excavation as would prevent danger to persons traveling the streets while the work was left exposed, as required by the Code of Ordinances of the City of New York.</p> <p>Held, on all the evidence, that an issue of fact was presented with respect to the defendant’s negligence.</p> <p>Held, further, that it cannot be said, as a matter of law, that the plaintiff, who was an old man and partially blind and not able to see distinctly, was guilty of contributory negligence.</p> <p>One who is blind or whose eyesight is impaired is not thereby deprived of the right to use the public highways, and in venturing upon them he does not do so at his peril, but he is bound in so doing to exercise only the care and caution that a person of ordinary prudence who is blind or whose eyesight is so impaired would exercise under the circumstances.</p>

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

Appeal by the defendant, Belt Line Railway 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 11th day of Februaiy, 1920, granting relator’s motion for a peremptory writ of mandamus. The opinion of the Special Term is reported sub nom. Matter of City of New York v. Belt Line R. Corp. (110 Mise. Rep. 347).

Appeal by the plaintiff, Bernard Shevlin, 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 New York on the 5th day of June, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of June, 1919, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, John K. Stewart & Sons and another, from an award of the State Industrial Commission, made on the 2d day of January, 1920, rescinding a former award and awarding the claimant compensation for seventy-two per cent loss of hand.

Cross-appeals by the plaintiff, James S. Herrman, and the defendant, Hartwood Holding Company, Inc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of November, 1919, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, The Pierce-Arrow Motor Car Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 20th day of October, 1919.

<p>Sales — sale and delivery of goods at Newfoundland “ c. i. f.” — rights of seller and buyer under such contract — duty of seller to procure marine insurance — customs and usages of coastwise trade — when seller not required to insure against war risks — destruction of goods by submarine — evidence — customs and usages — waiver of objections to inadequacy of marine policy.</p> <p>Action to recover an unpaid balance of the purchase price of codfish shipped by the plaintiff, who does business only in Newfoundland and Labrador, to the defendants in New York, which goods were destroyed era route to New York when the vessel in which they were carried was torpedoed and sunk by a German submarine, which loss was not covered by the marine insurance procured by the plaintiff. The goods were shipped “ c. i. f.,” which by the custom of the trade requires the buyer to pay a fixed price for which the seller furnishes the goods and pays the freight and insurance to the point of delivery, all risks to the goods while in transport being for the account of the buyer. Under said contract the seller fulfills his obligations by putting the cargo on board and forwarding to the purchaser a bill of lading and a policy of insurance of the kind then current and customarily issued in the trade, the insurance being for the protection of the purchaser who assumes all risks after the goods have been placed on board.</p> <p>Held, that, under the custom aforesaid, such acts by the seller constituted a delivery to the buyer and the title passes even though it be stated in the contract that delivery is to be made at the point of destination.</p> <p>The rule that the title passes to the buyer on the performance by the seller of the acts aforesaid is not affected by the Sales of Goods Act of this State.</p> <p>The sale aforesaid was made at Newfoundland and the contract as to the procuring of insurance is to be construed and governed by the customs and usages of shippers by coastwise trade between St. Johns and New York, and the purchaser in New York is governed by said usages in accepting insurance which required the seller only to take out ordinary marine insurance without war risks.</p> <p>In such action it was error to exclude the testimony of competent wdtnesses called to show the customs and usages of such trade at St. Johns, and also to exclude evidence to the effect that after the commencement of the European -war ordinary marine policies had been procured by the plaintiff and accepted by the defendants.</p> <p>It was also error to receive evidence of a custom at New York to procure war risk insurance given by witnesses who were only familiar with the custom concerning transatlantic shipments, and shipments from the port of New York.</p> <p>Any valid objection that the defendants might have made to the inadequacy of the marine policy tendered was waived by their failure to object on that ground and by placing their objections on other untenable grounds.</p>

Appeal by the defendant, Mathias Raport, from a judgment of the Court of Special Sessions of the City of New York Municipal Term, Part 1, rendered on the 21st day of November, 1919, convicting him of a misdemeanor for a violation of the provisions of section 104 of the Labor Law.

<p>Appeal by the plaintiff, Herbert P. Ayers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 31st day of May, 1919, dismissing the complaint upon the merits, both parties having moved for a directed verdict and the jury having been dismissed.</p>

<p>Appeal by the defendant, Alexander Smith & Sons Carpet Company, from an award of the State Industrial Commission, entered in the office of said Commission on the 18th day of November, 1919.</p>

<p>Wills — bequest of life estate with remainders to “ next heirs ”— when remainders vest at death of testator—“divide and pay over ” rule — “next heirs ” defined.</p> <p>Where a testator divided his estate into a specified number of equal parts and gave four of said parts to his sister if she should be living at the testator’s death for her own use and benefit forever, “ and if she be then dead, then to my next heirs by blood,” to be distributed according to the Statute of Distribution, and further provided that in the case of the death of said sister or of another beneficiary before testator the trusts created for their benefit should fail and be of no effect and in that case the executors were directed to distribute their portions of the trust estate to “ my next heirs by blood according to the Statute of Distribution,” and further by another paragraph provided that if said sister should be living at testator’s death a certain proportion of his estate should go to a trust company to collect the income and pay the same over to said sister for and during her life, “ and on her death to convey, pay over and distribute the whole capital ” of said shares “ among my next heirs by blood according to the Statute of Distribution,” the remainders created by the will aforesaid became vested in the remaindermen at the death of the testator and the vesting thereof was not postponed until the death of said life tenant.</p> <p>There is no incongruity in the life tenant having a vested interest in a portion of the remainder.</p> <p>The so-called “ divide and pay over ” rule of construction is merely a canon of construction and is subsidiary to the general intention of the testator as expressed in Ms will and is merely invoked as an aid in the ascertaining of such intention.</p> <p>The term “ next heirs ” means heirs at the testator’s death, otherwise the word “ next ” can have no sigmficanee.</p>

Appeal by the defendant, E. L. Barnett, Inc., from that part of an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 15th day of March, 1920, modifying an order of the City Court of the City of New York.

Appeal by Banca Commerciale Italiana from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of May, 1920, granting plaintiffs’ motion for an injunction restraining the appellant, not a party to the action, from negotiating or otherwise disposing of certain bills of lading during the pendency of the action.

<p>■ Motion for reargument of an appeal by the plaintiff, Robert Henry Thorburn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of June, 1919, which in part and on certain terms and conditions granted plaintiff’s motion for an order directing that the action be revived and continued against the First National Bank of Port Arthur, Tex., as administrator, etc., and that said bank be substituted as defendant in the place and stead of Dellora R. Gates, deceased, and that the title of the action be amended accordingly, without prejudice to any of the proceedings already had. (See Thorburn v. Gates, 191 App. Div. 506.)</p>

Appeal by the defendant, Mary Murphy, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Cayuga on the 26th day of April, 1919, convicting her of the crime of murder in the second degree.

Appeal by the claimant, Cooper-Snell Company, from certain orders made by the Court of Claims and entered in ’ the office of the clerk of said court on the 3d day of December, 1919, denying claimant’s motions to vacate and set aside certain orders made in said court, dismissing on jurisdictional grounds two claims against the State. (See 192 App. Div. 935.)

Motion by both parties for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, after the direction of a verdict by the court at the close of the case of no cause of action in defendant’s favor as to a portion of the demand of the plaintiff, and in the plaintiff’s favor as to a portion of his demand, upon a trial before the court and a jury at the Erie Trial Term in May, 1919.

Appeal by the defendant, Harvey A. Brown, from a judgment of the Supreme Court, Cattaraugus county, rendered against him on the 28th day of November, 1919, convicting him of the crime of riot.

Appeal by the plaintiff, Maximillian L. Blek, from so much of an order of one of the county judges of the county of Kings, entered in the office of the clerk of said county on the 14th day of May, 1920, as stays the execution of a warrant in summary proceedings to recover the possession of real property.

<p>Attorney at law disbarred — conviction of felony.</p> <p>Attorney at law disbarred pursuant to subdivision 3 of section 88 and section 477 of the Judiciary Law because of his conviction of the crime of conspiracy under section 37 of the Federal Criminal Code, which crime, under section 335 of said Federal Criminal Code, is a felony. -</p>

Appeal by the defendants, Charles V. Nobis and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kangs on the 28th day of May, 1920, granting plaintiff’s motion for the appointment of a receiver pendente lite, and enjoining the defendants from disposing of or transferring the property of the defendant corporation.

Appeal by the plaintiff, Henrietta May Stoothoff, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 20th day of January, 1920, dismissing plaintiff’s complaint in an uncontested action for divorce.

Appeal by the plaintiff, Clara Alice Crouch, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 24th day of May, 1920, denying plaintiff’s motion for judgment on her demurrer to the counterclaim of the defendant.

Appeal by the plaintiff, Town of North Hempstead, from an order of the Supreme Court, entered in the office of the clerk of the county of Nassau on the 8th day of May, 1920, denying plaintiff’s motion to continue a temporary injunction contained in.an order to show cause granted by the county judge of Nassau county on April 26, 1920, restraining the defendant from increasing the rates charged by it for gas over the rates fixed by the franchise granted defendant, and vacating…

Appeal by the defendants, Louis Breckheimer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of April, 1919, upon the decision of the court, rendered after a trial at the Kings County Special Term, setting aside, as fraudulent as to creditors of defendant Louis Breckheimer, a conveyance by him to his wife, the defendant Anna S. Breckheimer, and awarding costs against both…

Reargument of an appeal by The Universal Machinery Corporation, Ltd., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of June, 1918. (See 189 App. Div. 905, 942.)

Appeal by the defendant, Dock and Mill Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 26th day of April, 1919, upon the decision of the court rendered after a trial at the Niagara Trial Term, the jury having been dismissed after a motion by both parties for a directed verdict.

<p>Municipal corporations — collection of garbage in city of Buffalo — constitutional law — police power — municipal ordinance relating ¡ to collection of garbage in said city constitutional — when col- ; lector of garbage is independent contractor and not employee.</p> <p>Section 153 of chapter 25 of the ordinances of the city of Buffalo, which in substance prohibits the collection of garbage in said city without a license from the board of health approved by the council and prohibiting the issuance of such licenses where the city itself is collecting the garbage or does so through a municipal contractor, is a valid exercise of the police power, and a person who has entered into a contract with a third party for the collection of his garbage is not entitled to an injunction preventing the city from enforcing’said ordinance.</p> <p>Where the person who agreed to collect the plaintiff’s garbage paid a certain sum per month for the privilege and used the garbage for feeding hogs upon his farm, he was an independent contractor collecting garbage for his own purposes and is in no sense an employee of the person whose garbage he collects and the contract is illegal under the municipal ordinance aforesaid.</p> <p>It seems, that the power of the State to regulate the collection of garbage in cities is broad enough to prevent the owner from drawing his own garbage through the city streets in violation of an ordinance.</p>

<p>Appeal by the plaintiff, Gilchrist Transportation Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 24th day of September, 1919, upon the decision of the court, rendered after a trial at the Erie Trial Term, dis-. missing the complaint, the jury having been dismissed after both parties moved for a directed verdict.</p>

Appeal by the plaintiff, Perry B. Miller, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 19th day of January, 1920, denying plaintiff’s motion for judgment on the pleadings and sustaining defendant’s demurrer to the complaint and directing that the defendant have judgment on the pleadings, dismissing the complaint, with costs, and also from the judgment dismissing plaintiff’s complaint…

Appeal by the defendants, George S. Buck and others, 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 24th day of February, 1920, granting a peremptory writ of mandamus.

Appeal by the defendant, Kirk-Brown Realty Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of November, 1919, upon the decision of the court, rendered after a trial at the Onondaga Special Term, overruling defendant’s demurrer to the complaint.

<p>Gas and electricity — right of electric lighting corporation to string wires over roadbed of railroad corporation at intersection with highway — wires strung on poles not placed on railroad property — constitutional law—power of Legislature to alter or suspend charter of corporation — delegation of such power to municipal corporation.</p> <p>Where a corporation organized to furnish electricity to a town and its inhabitants and to the inhabitants of an incorporated village therein has, for the purpose of supporting its wires and pursuant to municipal authority with the approval of the Public Service Commission, erected poles on a public highway which crosses the right of way of a railroad, and the poles supporting the wires are not placed upon the railroad’s right of way and the wires are of such a height as in no wise to interfere with the operation of the railroad, the corporation cannot be compelled to remove said wires upon the theory that the construction was without the consent of the railroad and without the payment of compensation to it.</p> <p>The railroad company has no greater rights and privileges than those granted by its charter and in granting the same the Legislature did not relinquish its reserved constitutional power to alter or suspend the charter.</p> <p>The granting of the franchise by the muneipal authorities to string the wires and the approval thereof by the Public Service Commission was in effect an exercise of one of the reserved powers of the Legislature, which may delegate such powers as to the control of highways to municipalities whose act then becomes that of the Legislature.</p> <p>The maintenance of such wires will not be restrained, although the corporation is only furnishing power and light to individuals in said municipalities, as the lighting of the highway in question is contemplated, and such use is one of the purposes for which the company was organized.</p>

Appeal by the defendants, William G. Frace and Belle Frace, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany oh the 23d day of -November, 1918, upon the decision of the court, rendered after a trial at the Allegany Special Term, adjudging plaintiff to be entitled to possession of certain real property, and also an appeal by the defendant, Dawson D. Dickson, from a part of said judgment.

Appeal by the defendants, Warren Holbrook and others, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 10th day of April, 1920, overruling defendants’ demurrers to the complaint. The issue of law herein was brought on and tried as a contested motion pursuant to section 976 of the Code of Civil Procedure..

Reargument of an appeal by the Central Union Trust Company of New York from those parts of a decree of the Surrogate’s Court of Richmond county, entered in the office of the clerk of said court on the 12th day of July, 1919, settling and passing its accounts, and construing certain parts in the will of decedent, and also from an order entered in said clerk’s office on the 31st day of July, 1919, denying the motion of said executor to resettle the aforesaid decree.

Cboss-appeals by the State Board of Tax Commissioners and the City of New York, as intervenor, on the one side, and the relator, the Long Island Kailroad Company, on the other, from a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of July, 1919, which reduced the assessment upon special franchises of the relator in the boroughs of Kings and Queens in the city of New'York…

<p>Appeal by the defendant, The Adirondack Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 1920, upon the verdict of a jury for $1,400, 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.</p>

<p>Appeal by the defendant, The Bush Terminal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of February, 1920, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th day of February, 1920, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Lucy Gebo from an order and decree of the Surrogate’s Court of the county of Clinton, entered in the office of said court on the 17th day of November, 1919, appointing Joseph H. Badger as guardian of the person and estate of Arthur George Baillargeon (Badger), a minor under fourteen years of age.

Certiorari issued out of the Supreme Court and attested on the 7th day of September, 1918, directed to the Public Service Commission of the State of New York, Second District, and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in denying the petitions of the Erie Bailroad Company and the New York Central Bailroad Company, under section 10 of the Bailroad Law, for the revocation of the…

Appeal by the defendant, United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 28th day of October, 1919, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William N. MacArtney 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 Franklin on the 13th day of December, 1919, upon the decision of the court rendered after a trial before the court without a jury at the Franklin Trial Term.

Appeal by the defendants, Henry Heide, Inc., and another, from an award of the State Industrial Commission, made on the 8th day of September, 1919, and entered in the office of said Commission.

Appeal by the defendants, A. J. Buschmann Company and another, from an award and decision of the State Industrial Commission, entered in the office of said Commission on the 16th day of February, 1920.

Appeal by the defendant, Thorleif S. B. Nielsen, 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 February, 1920, overruling all the objections made by said defendant to certain questions propounded to him pursuant to an order directing his examination before trial and overruling his claims of privilege, and directing him to answer the questions.

Appeal by the defendant, The Pennsylvania Railroad Company, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 21st day of October, 1919.

Appeal by the defendant, The City of Albany, from an order made at a Special Term of the County Court of the county of Albany and entered in the office of the clerk of the county of Albany on the 27th day of March, 1920, sustaining the plaintiff’s demurrer to the defense set forth in the fifth paragraph of defendant’s answer, upon the ground that said defense is insufficient in law on the face thereof.

Appeal by the contestant, Fannie N. Brown, from an order of the Surrogate’s Court of the county of Clinton, entered in the office of said surrogate on the 3d day of January, 1920, denying her application for an order directing William C. Pike, the proponent and executor of the will of Eliza A. Carter, deceased, to appear and be examined pursuant to the provisions of sections 872 and 873 of the Code of Civil Procedure.

<p>Surrogates’ Courts — when surrogate not disqualified to act as judicial officer — when judicial officer bound to act—Code of Civil Procedure, section 2476, construed — refusal of surrogate to issue certificate of his disqualification — refusal not appealable.</p> <p>That part of section 2476 of the Code of Civil Procedure which provides that “ a surrogate is also disqualified in any matter in his court where he files a certificate that his relations to the parties' or the subject matter are such that it is improper for him to act,” does not entitle the contestants of a will to review upon appeal the refusal of a surrogate to issue a certifieate of disqualification under said provision. In the absence of facts which disqualified the surrogate under the statutes, the question is one exclusively for him to determine.</p> <p>Where a duty is devolved upon a judicial officer, in the absence of some prohibition, constitutional or statutory, he is bound to act.</p> <p>The purpose of the clause aforesaid was not to arm litigants with a power over the independence and integrity of the court, but to enable the surrogate, in a proper case, to decline to act without a violation of duty to the State. '</p> <p>The fact that a surrogate may have been a member of a humane society which is a legatee under a will does not make him interested in the subject-matter so as to disqualify him from entertaining proceedings for probate. Nor is a surrogate disqualified because he may be on good terms with attorneys practicing in his court and may have accepted references at their suggestion and with their acquiescence.</p> <p>Kilby, J., dissents in part, with opinion.</p>

Appeal by the contestants, Frank Hall and another, from a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said surrogate on the 3d day of November, 1919, upon the verdict of a jury directed by the court, admitting to probate the last will and testament of Wesley Hall, deceased.

Appeal by the defendant, The Travelers Insurance Company, Hartford, Connecticut, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 12th day of November, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1919, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, American District Telegraph Company and another, from a decision and award of the State Industrial Commission, made on the 24th day of November, 1919, and entered in the office of said Commission.

<p>Workmen’s Compensation Law — basis of award — earnings of employee — tips received in course of employment.</p> <p>In making an award to a track driver employed to deliver meat, who was injured in the course of his employment, the State Industrial Commission should not take into consideration the fact that in addition to a weekly salary he received a certain sum per week in tips from customers of his employer, where the employer had no knowledge whatever of such gratuities and the salary paid was not based thereon.</p> <p>John M. Kellogg, P. J., dissents, with memorandum.</p>

Appeal by the plaintiff, Vincent Boyle, an infant, etc., from an order of the Supreme Court, made at the Rensselaer Trial Term and entered in the office of the clerk of the county of Rensselaer on the 22d day of March, 1920, dismissing the plaintiff’s complaint, and also an appeal by said plaintiff from the judgment entered in said clerk’s office upon said order.

Certiorari issued out of the Supreme Court and attested on the 25th day of October. 1919, directed to Walter H, Knapp and others, as and constituting the State Tax Commission of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in making a determination denying an application of the relator for a revision of the franchise taxes levied against relator under section 187 of the…

Appeal by the defendant, S. Bolton’s Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 5th day of December, 1919, upon the decision of the court, rendered after a trial at the Saratoga Trial Term, the jury having by consent of the parties been discharged. The opinion of the Trial Term is reported in Houlihan v. Bolton’s Sons (109 Mise. Rep. 325).

<p>Appeal by the petitioners, Herman Berkovitz 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 June, 1920, denying a motion for the appointment of an arbitrator.</p>

<p>Appeal by the defendants, Abraham. Werbelovsky and others, individually anchas executors and trustees, etc., and others, 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 Kings on the 31st day of October, 1919, upon the decision of the court, rendered after a trial at the Kings County Special Term, in which it was held that excepting directions to pay debts and legacies, the deceased had died intestate.</p> <p>The will had before been admitted to probate after a contest. (Epstein v. Werbelovsky, 167 App. Div. 942; 219 N. Y. 658.) In the present case the court at Special Term had held invalid the trust provisions set out in the 3d paragraph of the will. Certain Brooklyn real estate was put in trust for the benefit of the younger children, Howard and Tessie, to be paid with all the accumulations of interest thereon when the younger of them shall have reached the age of twenty-one years, when there should be an equal division between them. The will then provided:</p> <p>“ When the younger of my said two children shall have reached the age of twenty-one years, then I direct the Trustees herein named, to convey the said premises No. 76 Graham Avenue and No. 50-52 Moore Street to my three sons Charles Werbelovsky, Abraham Werbelovsky and Benjamin Werbelovsky or to such of them as may be living, provided that my said sons shall pay to such Trustees, as consideration for such conveyance, the sum of Twenty-five thousand ($25,000) Dollars over and above the present mortgage hens .on said premises; and on such payment being made my sons shall become the absolute owners of said premises. If my said sons shall fail to make such payment within ninety days -after the younger of my said two children Howard Werbelovsky and Tessie Werbelovsky shall have reached the age of twenty-one years, then I direct that my Trustees shall convey the said premises to said Howard Werbelovsky and Tessie Werbelovsky, or to the survivor of. them, if one be dead, to be their own property absolutely and forever, without conditions or limitations of any kind to be held by them as tenants in common share and share alike.</p> <p>“ Should both my said son Howard and my daughter Tessie die before reaching the age of twenty-one years, then the said trust hereby created shall at once cease and determine, and the said real property, in such case I give devise and bequeath to my sons Abraham Werbelovsky, Charles Werbelovsky and Benjamin Werbelovsky to be equally divided between them, share and share alike, absolutely without conditions or limitations of any kind.</p> <p>“ If my said sons shall exercise the right hereby granted to them, and shall purchase the real property hereinbefore described for. the consideration herein fixed and shall pay to the said Trustees said sum of Twenty-five thousand ($25,000) Dollars, then my said Trustees shall divide said sum between my two children Howard Werbelovsky and Tessie Werbelovsky, equally share and share alike. But if one of my said two children shall be dead, then said entire amount shall go and be payable to the survivor.”</p> <p>The conclusion that this trust was invalid was based upon (1) the ninety days interval for the option to purchase; also (2) from an inference that if Howard died before twenty-one, and Tessie should five, the corpus would be left unprovided for. The testamentary dispositions were, therefore, set aside, and a partition sale directed. (Reported 108 Mise. Rep. 214.) The executors and the defendants Sarah, Bessie and Lillian Werbelovsky appealed to this court.</p>

Appeal by the defendant, the County of Westchester, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of January, 1920, upon the decision of the court, rendered after a .trial at the Westchester Special Term, overruling the demurrer interposed by said defendant to the complaint.

<p>Appeal by the defendant, Massachusetts Bonding and Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1919, upon the verdict of a jury for $12,200.53, in addition to a verdict for $12,584.03, rendered by direction of the court, and also from an order entered in said clerk’s office on the 26th day of May, 1919, denying the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 5th day of February, 1920, directed to the Public Service Commission of the State of New York in and for the First District and others, 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 annulling a tariff schedule of-rates of fare for the transportation of passengers in so far as it showed an increase from five to seven cents for such transportation between stations in the city of New York.</p> <p>The changed passenger tariff schedule was filed with the Commission by the relator on the 20th of October, 1919, pursuant to the provisions of section 28 of the Public Service Commissions Law (Consol. Laws, chap. 48; Laws of 1910, chap. 480). The schedule affected the rates of fare between the southwesterly terminus of the relator’s line at the Harlem river and New Rochelle and White Plains in Westchester county beyond the boundary of the city of New York; and purported to cancel the then existing passenger tariff of the relator. The Commission suspended the operation of the schedule and ordered a public hearing thereon pursuant to the provisions of section 29 of the Public Service Commissions Law (as amd. by Laws of 1914, chap. 240). ' The city of New York, on its application, was permitted to intervene and take part in the hearing. Evidence was taken and counsel for the respective parties were heard. The city contended that the rate of fare within the limits of the city of New York was irrevocably fixed at five cents by an ordinance duly adopted by the board of aldermen and approved by the mayor on the 2d day of August, 1904, enacted on the application of the relator’s predecessor in title and interest for the consent of the municipal authorities to the crossing • of streets and highways within the city, which ordinance* gave such consent on condition, among other things, that not more than five cents should be charged for the transportation of a passenger between any two points in said city. The consent or special franchise thus granted by the ordinance was formally accepted in writing by the relator’s predecessor as therein required and was duly transferred to and was owned by the relator when it filed said amended passenger fare schedule. The relator is a consolidated corporation of the State of New York and is the third corporation of the same name. The original corporation was incorporated by the filing of articles of association on the 20th of March, 1872, pursuant to the General Railroad Law of 1850 (Laws of 1850, chap. 140). A defect in its incorporation was cured by an affidavit filed on January 6, 1904, pursuant to the provisions of chapter 627 of the Laws of 1903 (amdg. Laws of 1893, chap. 238), and the validity of its incorporation as thus perfected has been sustained by the Court of Appeals.</p> <p>{Matter of New York, W. & B. R. Go., 193 N. Y. 72.) Its route, as defined in its charter, extended from the Harlem river to Port Chester with branches from Pelham to White Plains and to Fort Schuyler and it was to be operated by steam or other motive power. After so obtaining the consent of the municipal authorities, it duly obtained from the Public Service Commission of both the first and second districts, on January 6, 1909, certificates of convenience and necessity pursuant to section 59 of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], added by Laws of 1892, chap. 676, as amd. by Laws of 1895, chap. 545) and permission to construct its railroad and exercise its franchise pursuant to section 53 of the Public Service Commissions Law (Laws of 1907, chap. 429).</p> <p>On the 20th of August, 1901, the incorporation of the New York and Port Chester Railroad was perfected by the filing of an amended certificate of incorporation pursuant to the provisions of the General Corporation Law (Gen. Laws, chap. 35 [Laws of 1892, chap. 687], § 7), and of the Railroad Law (Laws of 1890, chap. 565), and its route was defined substantially the same as that of the relator’s predecessor ■ excepting that it had no branch line to White Plains and that it was to be operated by any motive power, other than locomotive steam power, authorized by law. The second corporation of the same name as the relator was incorporated as a consolidated corporation pursuant to the provisions of sections 70 to 76, inclusive, of the General Railroad Law of 1890, as amended, and chapter 579 of the Laws of 1909 by the filing on the 18th day of January, 1910, of a joint agreement between the first corporation and said New York and Port Chester Railroad Company, and pursuant to the provisions of said chapter 579 of the Laws of 1909, it adopted as its route a main line from the Harlem river to Port Chester with a branch from Mount Vernon to White Plains and to Fort Schuyler from at or about One Hundred and Eightieth street. The Public Service Commission, Second District, duly approved the consolidation and the city of New York duly consented to the transfer to the second consolidated company of the consent to crossing the streets theretofore given to the first consolidated corporation. The Westchester Northern Railroad was incorporated under the General Railroad Law of 1890, as amended, by filing a certificate of incorporation on the 7th of February, 1910, and its route extends from a junction with the line of the relator’s immediate prededecessor in White Plains to Danbury, Conn., with a branch to Brewster, N. Y.; and the certificate of incorporation provided that' it might be operated by steam, electric or other mechanical power. The relator was incorporated on the 8th of June, 1915, pursuant to the provisions of article 4 of the . Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), as a consolidated corporation by the filing of a joint agreement between its immediate predecessor of the same name and the Westchester Northern Railroad; and the consolidation was duly approved by the Public Service Commission of the Second District and the city of New York duly consented to the transfer to it of the consent to cross the streets which had been given to the first corporation of the same name. The relator thereby became authorized and empowered to construct and operate a line from the Harlem river in the city of New York to Port Chester with branch lines to White Plains and Fort Schuyler and to Danbury, Conn., and Brewster, N. Y.; and at the time of the filing of the amended passenger tariff schedule, in question, it was engaged in operating the main line from the Harlem river in New York city to New Rochelle and a branch line to White Plains. Its road is constructed exclusively upon its own private right of way excepting where it crosses streets or highways, and all of such crossings are either above or below the grade of the street and have been located and maintained under consents duly obtained from the appropriate local authorities. 'No part of its line is operated upon or along the surface of any street or highway and its only use of any public street is in so crossing the same. The length of its line from the southwesterly terminus at the Harlem river to New Rochelle is twelve and twenty-three one-hundredths miles and its branch from Mount Vernon to White Plains is about nine miles. The length of its line to Mount Vernon is ten and thirty-three one-hundredths miles and to White Plains, nineteen and fifty-six one-hundredths miles. It has four tracks from the Harlem river to Mount Vernon and two « from Mount Vernon to New Rochelle. The length of its line within the limits of the city of New York from the terminus to Dyre avenue, which is the last station within the city limits, is eight and thirty-nine one-hundredths miles. The total length of its lines within the city limits is nine and three-tenths miles. Within the city limits it crosses sixty-nine streets above grade and forty-one below grade; and the total length of these crossings within the street lines is 13,783 feet. It was intended as and is a high speed electric railroad, At the time of the hearing before the Public Service Commission it had outstanding bonds aggregating $21,390,000 and outstanding capital stock of the par value of $5,005,250 on which it has never paid dividends, and had an additional floating indebtedness of $17,080,989.10 and it was not making sufficient to pay its operating expenses and taxes. The New York Central and the New York, New Haven and Hartford Railroad, with which it competes to a certain extent, charge respectively a fare of twenty-three cents for seven and six-tenths miles and twelve cents for eight and twó-tenths miles within the city.</p> <p>On these facts, the Acting Deputy Public Service Commissioner, before whom the hearing was had, expressed the opinion that it is unreasonable to limit the relator within the city limits to the fare prescribed in the ordinance; but he was of opinion that the Commission was without jurisdiction to increase the rate of fare and on that theory the Commission annulled the amended schedule so filed by the relator, in so far as it provided for an increase of fare to be charged by the relator within the limits of the city and, in effect, directed the relator to amend the schedule to correspond with the provisions of the ordinance with respect to the rate of fare to be charged and to conform thereto.</p>

Appeal by the plaintiffs, Fred S. Bryant’and another, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of June, 1920, directing the plaintiffs to enter judgment against the respondent’s executrices within ten days and staying all proceedings in the action.

<p>Attorney at law disbarred — conversion of client’s money — false testimony upon hearing.</p> <p>Attorney at law disbarred for converting to Ms own use the proceeds of a policy of life insurance, belonging to an estate, wMch he collected while acting as attorney for the admimstratrix, for mating false and misleading statements to conceal the facts from the surety company wMch was on Ms client’s bond, and for giving false testimony upon the hearing.</p>

<p>Prohibition— when writ may issue — crimes— jurisdiction of Special Term of Supreme Court to entertain motion to set aside indictment found at Extraordinary Trial Term when latter term in recess — no appeal from determination of Special Term.</p> <p>A writ of prohibition may be issued, only against a court or other tribunal possessing judicial powers when it is without jurisdiction or is proceeding or threatening to proceed in excess of its jurisdiction.</p> <p>A Special Term of the Supreme Court in the First Judicial District has jurisdiction to entertain a motion to set aside an indictment which was presented against the defendants at an Extraordinary Trial Term.</p> <p>It seems, that while the jurisdiction in such cases is not confined to the particular part or term of the Supreme Court in which the indictment is found or has been transferred, it is not optional whether to move there . or elsewhere, for manifestly if the part or term of the court in which indictments have been found, or to which they have been transferred, were in session, it would tend to bring the administration of justice into disrepute and would seriously interfere with the orderly administration of judicial work for another part or term of the court to entertain jurisdiction in such cases.</p> <p>But since the Extraordinary Trial Term was not in session at the time the motion was made to the Special Term it was a matter addressed to the sound discretion of the justice presiding at the Special Term, whether the motion should be entertained, and over his determination thereon the Appellate Division has no supervision by appeal or otherwise.</p>

<p>Appeal by William G. Wood, as administrator, from parts of a decree of the Surrogate’s Court of the county of Westchester, bearing date the 7th day of October, 1919, and entered in the office of said Surrogate’s Court.</p>

Appeal by the defendant, Sagamore Development Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of September, 1920, denying defendant’s motion to bring in and join the M. C. Engineering Company, Inc., as a codefendant. The Sagamore Development Company had contracted with the plaintiff Morgan to build a house.

Appeal by the New Lots Talmud Torah Society, Inc., from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Bangs on the 24th day of May, 1920, consenting to the removal of Abraham Bleistift’s body from a burial lot of the appellant in the Mount Judah Cemetery.

Appeal by plaintiff, Samuel F. Smyth, 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 1st day of September, 1920, overruling a demurrer interposed by plaintiff to a separate defense pleaded in the answer of the defendant Pure Ice Company of Williamsburg.

Appeal by the defendant, William M. Barrett, as President of the Adams Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of November, 1919, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Harry Meóla, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 20th day of June,. 1919, upon the verdict of a jury, convicting the defendant of a violation of section 270' of the Penal Law; also from three orders, entered in said clerk’s office on the 1st day of July, 1919, overruling the defendant’s demurrer to the indictment, denying his motion for a new trial on the minutes, and denying his motion in arrest of judgment.</p>

<p>Appeal by the defendant, S. Waterbury & Son’s Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of February, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of February, 1920, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Action against a corporation to recover on an alleged contract by which the defendant promised the plaintiff a bonus or sum in addition to weekly salary for services rendered.</p>

Appeal by the defendant, A. P. Husted Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 30th day of March, 1920, overruling the defendant’s demurrer to the amended complaint. Action to recover damages by reason of the publication and circulation of certain articles caused to have been written by defendant concerning plaintiff’s business,

Appeal by the defendant, John Rankin, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of July, 1920, denying defendant’s motion, made on opposing affidavits, to vacate a warrant of attachment herein. A denial of defendant’s prior motion made before answering, and founded only upon the papers upon which the warrant was granted, has been here affirmed. (192 App.

<p>Appeal — when judgment of Appellate Division not unanimous — justice “ not voting ”—leave to appeal to Court of Appeals.</p> <p>Where a justice who sat in an appeal to the Appellate Division is reported as - “ not voting ” the judgment of the other justices is-not unanimous.</p> <p>Under such circumstances, although there was no actual dissent to a judgment of affirmance by the Appellate Division, it may grant leave to appeal to the Court of Appeals.</p>

<p>Attorney at law suspended — conversion of moneys of client — effect of restitution.</p> <p>Attorney at law suspended from practice for six months with leave to apply for reinstatement at the expiration of that term, for neglecting to pay over moneys collected for a client until a complaint had been made to the Association of the Bar.</p> <p>The fact that the attorney made a settlement with the complaining witness after disciplinary proceedings were instituted does not wipe out or condone a conversion.</p>

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

<p>Attorney at law disbarred — giving false testimony at court martial — subsequent admission before court martial that testimony was false — technical perjury not essential to disbarment.</p> <p>Attorney at law disbarred for giving false testimony when a witness before a naval court martial, which testimony was given to shield another person charged with receiving money for procuring the acceptance of certain persons for enlistment in the United States Navy.</p> <p>Where a transcript of the proceedings of the court martial was admitted in evidence in the disciplinary proceeding by consent, the respondent cannot attack the jurisdiction of the court martial or maintain that the oath was administered to the respondent by a person not authorized by law, etc.</p> <p>Although the respondent, having given false testimony afterwards admitted it to be false before the court martial, upon discovering that the person whom he was attempting to shield had made a confession, and although he may not have been'technically guilty of the crime of perjury, he should be disbarred.</p> <p>Moreover, it is immaterial that the respondent when giving the false testimony was not acting in his capacity as an attorney, for his conduct shows such moral obliquity as warrants the court in saying that he no longer possesses that good character that is essential to his continuance in an honorable profession.</p> <p>In order to be subject to disbarment for giving false testimony an attorney need not be guilty of the crime of perjury under the strict and technical rules of the criminal law.</p>

Appeal by the defendant, The State of New York, from a •judgment of the Court of Claims in favor of the claimant, entered in the office of the clerk of said court on the 27th day of August, 1919.

<p>Appeal by the plaintiffs, Robert Weigel 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 Sara,toga on the 20th day of March, 1920, upon the decision of the court rendered after a trial at the Saratoga Trial Term, the jury having been discharged, dismissing the complaint upon the merits.</p>

<p>Wills — real property — devise of life estate with remainder to eldest son of life tenant — request of testator that devisee shall not sell to strangers —■ when such request does not invalidate devise — conveyance of life tenant in hostility to rights of remaindermen—'When grantee of life tenant does not obtain title — ejectment — adverse possession — estoppel.</p> <p>Where a will devised realty to the testator’s nephew “ during the term of his natural life, and at his decease to descend to the eldest son of my said nephew who shall then be living,” with contingent remainders over. the nephew merely took a life estate and at his death a title in fee passes to his eldest son who survived him.</p> <p>Such devise is not invalidated by the fact that the testator in a subsequent clause in the will enjoined upon his nephews and such of their children as might become possessed of the realty under the will not to sell the same to strangers and expressed the desire that the farm should remain in the possession of the family, for there was no penalty attached to a disobedience of the testator’s expressed desire so that it was not a condition precedent to the vesting of the fee and the will contains a clear implication that the devisee has power to sell. At the most, there was merely a restraint or limitation upon the power of alienation — not a total denial of that power.</p> <p>Where the life tenant holding under -said will conveyed the premises by an instrument purporting to vest his grantee with a fee and covenanted that his descendants shall forever be estopped and barred from claiming title, the conveyance was ineffective to defeat the title of said remainder-man, and hence where a railroad company, having a power to exercise the right of eminent domain, instead of doing so bought the premises in reliance upon the title of the life tenant’s grantee, it acquired no title as against said remainderman who can assert title in an action of ejectment brought after the death of the life tenant.</p> <p>Said action of ejectment is not barred because the railroad company has been in possession for more than twenty years under the deeds aforesaid.</p> <p>If the defendant possessed of the right of eminent domain' chose to deal with one who had only the rights of the life tenant, it cannot now be heard to urge an estoppel, for at the bottom of an estoppel lies either fraud or something which operates as such, and the plaintiff cannot be said to have acted fraudulently by remaining quiet until his rights in the premises had become Axed. As the defendant had constructive notice of the plaintiff’s rights its entry upon the premises was wrongful and not adverse. . . - . .</p>

Appeal by the defendants, A. T. Papaw and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 26th day of February, 1920.

<p>Wills — specific legacies with gift of lapsed legacies to residuary legatee — death of specific legatee before testator —• when legacy preserved to descendants of legatee by section 29 of Decedent Estate Law—■ statute construed—right of testator to dispose of legacies irrespective of statute.</p> <p>Where a testator having given certain specific legacies to brothers, sisters, children and grandchildren, gave the whole residuary estate," including lapsed legacies,” to a niece, the share of a specific legatee who died before the testator lapsed and his legacy did not go to his descendants under section 29 of the Decedent Estate Law, but went to the niece under the residuary clause.</p> <p>At common law a legacy or devise lapsed when the beneficiary died before the testator, but section 29 of the Decedent Estate Law preserves such gift to the descendants of such legatee if he have the specified relationship to the testator.</p> <p>However, said section 29 of the Decedent Estate Law was not intended to limit the right of a testator to give his property to whomsoever he may choose, and hence notwithstanding the statute he may provide that a legacy to the persons specified in the statute, if it shall lapse, shall go to a person other than the descendants of the legatee.</p> <p>A testamentary gift vests only upon the death of the testator.</p> <p>John M. Kellogg, P. J., dissents.</p>

<p>Appeal by the defendant, The City of New York, from a decision and award of the State Industrial Commission, made on the 24th day of July, 1919, and entered in the office of said Commission on the 28th day of July, 1919, and also from a decision and award of said Commission made on the 30th day of December, 1919, and entered in the office of said Commission, affirming the aforesaid award.</p>

Appeal by the defendants, International Ice Cream Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 5th day of April, 1920.

<p>Appeal by the defendant, Sheffield Farms Company, Inc., from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 8th day of December, 1919.</p>

<p>Appeal by the plaintiff, Augustus Geiger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ulster on the 7th day of December, 1917, upon the decision of the court rendered after a trial at the Ulster Trial Term, the jury having been discharged, dismissing the complaint upon the merits.</p>

<p>Worismen’s Compensation Law — when father supporting family is not dependent on deceased son.</p> <p>The father of an unmarried son is not entitled to an award under the Workmen’s Compensation Law, upon the ground of dependency where it appears that he merely received contributions from said son through filial devotion and not from necessity, it appearing that the claimant independently of any assistance from the son was supporting his family and increasing his capital.</p>

<p>Appeal by the defendants, Hibbard & Gifford and another, from a decision and award of the State Industrial Commission, made and entered in the office of said Commission on the 11th day of November, 1919, and also from a decision and award of said Industrial Commission, entered in the office of said Commission on the 2d day of December, 1919.</p>

Appeal by the defendant, Artenaas Ward, doing business under the trade name of Ward & Gow, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 16th day of February, 1920.

Appeal by the defendant, Bert Hawley, from a judgment of the County Court of Madison county in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 25th day of April, 1919, upon the decision of the court rendered after a trial without a jury.

<p>Appeal by the defendant, James W. Munro, from a decision and award of the State Industrial Commission, made on the 29th day of August, 1919, and entered in the office of said Commission.</p>

Appeal by the defendants, Dictograph Products Corporation and another, from a decision and award of the State Industrial Commission, made and entered in the office of the said Commission on the 14th day of April, 1920.

Appeal by the plaintiff, Helen Beade, from a judgment of the- Supreme Court in favor of the defendants, William J. Halpin and another, entered in the office of the clerk of the county of Rensselaer on the 11th day of May, 1920, pursuant to an order made at the Albany Special Term and entered in said clerk’s office'on the same day, dismissing the complaint as against the above-named defendants on the ground that said complaint as to the said defendants does nob stabe facts…

Appeal by the defendants, The Rail Joint Company and another, from decisions and awards of the State Industrial Commission, made on the 16th and 30th days of March, 1920, and on the 10th day of May, 1920, and entered in the office of said Commission.

Appeal by the defendants, Oakland Golf Club and another, from a decision and award of the State Industrial Commission, made on the 5th day of January, 1920, and entered in the office of said Commission.

Appeal by the defendants, Max Greenberg and another, from a decision and award of the State Industrial Commission, made and entered in the office of said Commission on the 15th day of April, 1920.

Appeal by the plaintiff, Charles H. Latham, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chenango on the 29th day of December, 1919, upon the decision of the court, rendered after a trial at the Chenango Trial Term, without a jury, dismissing the complaint.

Appeal by the defendants, United States Railroad Administration, Walker D. Hines, Director-General of Railroads, and another, from a decision and award of the State Industrial Commission, made and entered in the office of said Commission on the 7th day of November, 1919.

Appeal by the defendant, Adirondack Electric Power Corporation, from a decision and\ward of the State Industrial Commission, made and entered in the office of said Commission on the 23d day of December, 1919, reversing and rescinding the action theretofore taken by said Commission whereby an award was disallowed.

Appeal by the defendants, Jarvis Stores, Inc., and another, from a decision and award of the State Industrial Commission, made on the 19th day of January, 1920, and entered in the office of said Commission.

<p>Appeal by the defendants, Downey-Snell Logging Company and another, from a decision and award of the State Industrial Commission, made on the 10th day of November, 1919, and entered in the office of said Commission.</p>

Appeal by the defendant, The Village of Schuylerville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 6th day- of November, 1918, upon the verdict of a jury for $3,300, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Thomas V. McManus, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 17th day of June, 1919, upon the verdict of a jury of no cause of action, also from an order entered in said clerk’s office on the 28th day of June, 1919, denying plaintiff’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 23d day of January, 1920, denying plaintiff’s motion for a new trial upon the ground of newly-discovered evidence.</p>

Appeal by Ward D. Williams, individually and as trustee, etc., from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the • county of Tioga on the 24th day of February, 1920, removing the appellant as substituted trustee, appointing the Chemung Canal Trust Company as substituted trustee herein, and directing said appellant to pay over to said Chemung Canal Trust Company as substituted truste'e herein upon demand the sum…

Appeal by the claimant, Jerome H. Buck, 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 20th day of April, 1920, denying his motion- to set aside and vacate the report of commissioners of appraisal herein.

<p>Workmen’s Compensation Law — evidence — testimony of physician who examined patient not hearsay — tuberculosis caused by fall — award affirmed.</p> <p>Where an employee fell and was injured and subsequently developed tuberculosis and died, testimony as to the cause of his death given by a physician who treated him within three days of the accident and continued to treat him until his death is not hearsay and is competent.</p> <p>Evidence examined, and held, that the tuberculosis which caused the decedent’s death was brought about by the accident and that an award to his dependents should be affirmed.</p>

Appeal by the defendants, Tassell & Fairbanks and another, from a decision and award «of the State Industrial Commission, made on the 22d day of December, 1919, and entered in the office of said Commission on the 2d day of January, 1920.

<p>Appeal by the defendants, Tolhurst Machine Works and another, from a decision and award of the State Industrial Commission, made on the 2d day of March, 1920, and entered in the office of said Commission on the 11th day of March, 1920, rescinding and modifying certain decisions and awards heretofore made, and granting a modified award in favor of the claimant.</p>

<p>Appeal by the defendant, George W. Perkins, as president, etc., from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 29th day of March, 1920, reversing upon the law and the facts a judgment of the City Court of Albany in favor of the plaintiff, and also reversing a judgment of said County Court for costs in favor of the defendant, heretofore entered in the office of the clerk of the county of Albany, and granting a new trial of the action in the City Court of Albany, with costs to the plaintiff to abide the event.</p>

Appeal by the plaintiff, The Public Service Commission of the State of New York, Second District, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 5th day of August, 1920, denying its petition under section 57 of the Public Service Commissions Law and dismissing the proceeding upon the merits.

<p>Landlord and tenant — action against landlord to recover damages after offer to redeem rejected — evidence showing that portion of demised premises were subject to paramount title of municipality — rejection of tender because tenant claimed possession of entire premises — verdict for plaintiff against law and evidence.</p> <p>In an action brought by a tenant against his landlord to recover damages for keeping the tenant out of possession, it appeared that after the- tenant had been dispossessed by summary proceedings, he made a tender and offered to redeem the premises as authorized by section 2256 of the Code of Civil Procedure. The demised premises consisted of a Turkish bath, a portion of which occupied a vault under the sidewalk in the city of New York, of which the lessor had occupancy by sufferance of the city and subject to its paramount title. As the Hudson and Manhattan Railroad Company required a temporary use of said vault for the purpose of constructing an underground railroad, the city of New York and said company notified the lessors that they were required to remove their property from the vault during the underground construction, and it is conceded that the city had legal right to make use of such vault. The lessors gave a lease to the railroad company for the purposes of said underground construction, said lease binding the railroad company to restore the premises to their former condition, which lease Was made subject to the plaintiff’s rights as tenant and subject to his right of redemption. It further appeared that the plaintiff in making the tender necessary to his redemption, claimed a right to possession of the entire premises including the vault and that the tender was rejected by the defendant upon said ground. Evidence examined, and</p> <p>Held, that a verdict for the plaintiff is against the law and evidence, and ¡$' that a new trial should he granted.</p> <p>Kilby and Woodward, JJ., dissent, with opinion.</p>

Appeal by the defendant, The Standard Accident Insurance Company of Detroit, Michigan, 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 28th day of January, 1920, upon the decision of the court rendered after a trial at the Albany Trial Term before the court without a jury.

<p>Municipal corporations — motor vehicles — negligence — injury to city assessor while riding in motor car operated by department of public works — city not liable for negligence in failing to inspect steering gear—duty to licensee — erroneous charge.</p> <p>A city which has purchased an automobile for its department of public works which was placed in the charge and control of the city engineer is not liable for the death of an assessor who, although not a city officer engaged about the city’s business, solicited a ride in the automobile, which overturned owing to alleged negligence in failing properly to inspect the steering gear of the machine and to lubricate the same, there being no proof whatever that the city had ever authorized said department to carry outsiders in the machine.</p> <p>Mere official possession of the ear under the circumstances did not justify the city engineer in the belief that he was authorized to carry the intestate or any' third person as a matter of favor and this is true although the city assessor, who was killed, was at the time discharging governmental duties.</p> <p>The intestate, while not a wrongdoer or trespasser, occupied the position of a mere licensee and the only duty the licensor owed to him was to refrain from reckless, willful or wanton misconduct tending to injure the licensee. Hence, it was error for the court to charge that the obligation of the defendant was reasonable care which involved a reasonable inspection of the ear.</p>

Cross-appeals by the defendant, Columbia Trust Company, as exécutor, etc., and by the plaintiff, The Woolson Spice Company,from parts of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of August, 1920, granting leave to the defendant, Columbia Trust Company, to serve a second amended answer by inserting certain denials therein and denying said defendant leave to plead a…

<p>Pleadings — action for breach of contract may be joined with action for fraudulently inducing same — no demurrer lies to prayer for relief •—■ complaint stating cause of action for fraudulent inducement of contract to purchase lands — false statement as to expiration of lease —- costs.</p> <p>An action for a breach of a contract to sell real property may be joined with an action for fraudulent representations which induced the plaintiff to make the contract.</p> <p>A defendant may not demur to the plaintiff’s prayer for specific equitable relief especially where there is also a prayer for damages.</p> <p>A complaint which in substance alleges that the vendor of real property fraudulently induced the vendee to enter into a contract to purchase by falsely stating that an outstanding lease had expired without the lessee availing himself of a renewal clause, states a cause of action for false and fraudulent representations and is not subject to demurrer for insufficiency.</p> <p>Order overruling a demurrer to a complaint sustained but without costs owing to the fact that the decisions were inharmonious at the time the issues were raised.</p>

Appeal by the defendants, Moritz Bender and another, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 8th day of March, 1920, and entered in the office of the clerk of the county of Kings, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 9th day of March, 1920, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Leon M. Bell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 9th day of December, 1919, dismissing the complaint at the close of the plaintiff’s case after a trial at the Kings County Trial Term, and also from an order made at the Kings County Special Term bearing date the 15th day of October, 1919, and entered in said clerk’s office, denying plaintiff’s motion for a…

Appeal by the defendant, George C. Heimerdinger Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of December, 1919, denying defendant’s motion for judgment on the pleadings.

Appeal by the defendants, Henry V. Greene and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1920, denying defendants’ motion to vacate a warrant of attachment.

<p>Pleadings — bill of particulars may be considered on motion for judgment on pleadings — sales—breach of parol warranty — sale of goods for export “subject to examination”—parol warranty surviving delivery to carrier in this State — waiver of right to inspect goods before shipment.</p> <p>On a motion for judgment on the pleadings a bill of particulars filed by the plaintiff may be considered and construed in connection with the complaint.</p> <p>Where an order for goods sold for export to a foreign country provided that they were to be “ subject to examination,” the examination was not intended to be restricted to an examination by the purchaser at the dock of the carrier in this State, and as the order was not accepted in writing by the defendant, the plaintiff may give evidence of a parol warranty which survived the delivery of the property to the carrier.</p> <p>The general rule is that if the seller is to ship the goods, the place of inspection, in the absence of an agreement to the contrary, is the destination of the goods, and hence although the plaintiff may have had the right to inspect before shipment it could waive that right and accept the goods relying upon the parol warranty.</p>

<p>Appeal by the defendant, Samuel Goldfish, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1920, denying defendant’s motion to modify and amend the final decree of divorce herein in favor of the plaintiff by striking out the provisions for the payment of $5,200 per annum to the plaintiff during her natural life in equal weekly installments and the further sum of $2,600 per annum in equal weekly installments so long as she lives and remains unmarried.</p>

<p>Appeal by the defendant, Max Brinkman, from a judgment of an Extraordinary Trial'Term of the Supreme Court, rendered on the 18th day of April, 1918, and entered in the office of the clerk of the county of New York, convicting the defendant on the first count of an indictment under section 766 of the Penal Law.</p>

<p>Appeal by the plaintiff, Herman Rothmann, an infant, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of April, 1920, granting defendant’s motion for a retaxation of costs.</p>

Separate appeals by the plaintiff, Marie MacLean, in each of the above-entitled actions, from orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1920, striking out a certain portion of a specified paragraph of the complaint in each action as irrelevant and immaterial.

<p>Appeal by the defendants, Julius G. Kugelman and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1920, denying the defendants' motion for an order to compel the plaintiff to accept service of an amended answer.</p>

<p>Crimes — assault, third degree — ejection of passenger from street car for refusing to pay additional fare — guilt of conductor depends upon rights of railroad company — evidence — refusal to allow collateral attack on order of Public Service Commission fixing rate of fare made under section 48 of statute — powers of Commission.</p> <p>In a criminal prosecution for assault in the third degree based upon the fact that the defendant, a street car conductor, expelled the complaining witness from his car because, having paid one fare, he refused to pay another after riding a certain distance,-the guilt of the defendant depends upon the question as to whether the railroad company had the right to collect the additional fare.</p> <p>A conviction, although proper under the evidence received, will be reversed for error in refusing to receive evidence that the railroad company had a right under its franchise to charge the additional fare for the refusal to pay which the complainant was expelled from the car.</p> <p>An order that the railroad company refrain from collecting more than a single fare, made by the Public Service Commission of its own motion under section 48 of the Public Service Commissions Law, was unauthorized and beyond the jurisdiction of the Commission, and hence such order is open to collateral attack in the criminal action aforesaid, and it was error for. the court to exclude evidence of the railroad company’s right to charge two fares under its franchise.</p> <p>\Under section 48 of the Public Service Commissions Law there is no authority for an order when the investigation is not for the purpose of redressing a grievance complained of but is made on the motion of the Commission in the interest of the public at large.</p> <p>It seems, that even in proceedings under section 49 of the Public Service Commissions Law, the Commission was without jurisdiction to make the order aforesaid.</p> <p>Rich, J., dissents.</p>

Appeal by the plaintiffs, Jacob Morrison 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 28th- day of April, 1920, denying plaintiffs’ motion for judgment on the pleadings, as against the defendant Max Sheinbaum.

Appeal by the plaintiff, Phillips-Jones 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 Bronx on the 20th 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 Bronx Trial Term, and also from an order entered in said clerk’s office on the 30th day of January, 1920, denying plaintiff’s motion for a new trial…

Appeal by the defendant, John McVicker Richmond, 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 New York on the 27th day of November, 1918, resettling and amending a judgment entered in said clerk’s office on the 21st day of October, 1918, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of October, 1918, denying said defendant’s motion for a new…

<p>Receivers — direction that receiver deposit funds with designated trust company — when claimant to funds, not party to action, not entitled to possession thereof without notice to interested parties.</p> <p>Where in a suit for an accounting as to moneys received from certain corporations by the defendants, and also for an injunction restraining the transfer of certain property and the performance of certain acts, the court has appointed a receiver pendente lite to take and receive all moneys and property due to some of the defendants from any and all persons and sources whatsoever, with the usual powers of such receiver, and said receiver pursuant to the direction of the court deposited all sums received by him with a certain designated trust company subject to the order of the court, it was error for the Special Term to summarily direct certain of said moneys to be paid over to another trust company which is not a party to the action, without notice of the application being given to any person other than the receiver.</p>

<p>Depositions — examination of defendants before trial — scope of examination.</p> <p>In an action for breach of a contract of employment whereunder the plaintiff alleges he was entitled to commissions on the sale of certain specified shares of stock made by the defendant, an examination of the defendants before trial should be limited to the sale of the specified stock and the plaintiff should not be allowed a general examination as to other sales of stock.</p>

Appeal by the relator, Joseph Poleti, 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 3d day of June, 1920, granting relator’s motion for a writ of mandamus to examine the books of account, records and papers of the defendant, a domestic corporation, as limits the relator to a personal examination of the books of said corporation and denies relatoi the right to have…

<p>Appeal by the plaintiff, Edwin C. Mulligan, as substituted trustee, etc., 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 July, 1919, denying the plaintiff’s motion for judgment on the pleadings and granting defendant’s motion for judgment on the pleadings and directing judgment in favor of the defendant dismissing the complaint.</p>

Certiorari issued out of the Supreme Court and attested on the 24th day of November, 1919, directed to Lewis Nixon,' composing and constituting the Public Service Commission of the State of New York for the First District, and another, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had relative to the fixing of the fare on the Flatbush Avenue line of the Brooklyn City Railroad Company, and in the…

Appeal by the defendant, Lord & Taylor, 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 defendant’s motion for judgment dismissing the complaint on the pleadings, consisting of a complaint, answer and demurrer to a separate defense in said answer.

Appeal by the defendant, Maag Gear Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1920, denying defendant’s motion to have the issues raised by the counterclaims set up by the defendant in its answer and the reply of the plaintiff thereto tried by a jury.

Motion by the defendant, Paterno Construction Company, for a new trial, upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff and against the defendant Paterno Construction Company for $10,000 rendered after a trial at the Bronx Trial Term in February, 1920.

Appeal by the defendant, Frank Lyman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of August, 1920, denying the defendant’s motion to vacate and set aside an order for the examination of the defendant before trial, and fixing the time, place and day for such examination.

Appeal by the defendant, James Byrne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1919, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s ■ office on the 16th day of December, 1919, as resettled by an order entered in said clerk’s office on the 12th day of January, 1920, denying defendant’s motion for a new trial made upon the…

Appeal by the defendant, Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of February, 1920, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Margaret Brown, from that part of an order of the Supreme Court, made at the New York Special Term and- entered in the office of the clerk of the county of New York on the 11th day of August, 1920, granting plaintiff’s motion for judgment on the pleadings as to the second cause of action, which pleadings consisted of an amended complaint and the demurrer thereto, and overruling the defendant’s demurrer to the second cause of action.

Appeal by the plaintiff, Amelia B. Chamberlin, 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 16th day of May, 1919, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits in so far as it demands a judgment and decree of separation and a provision for the support and maintenance of the plaintiff, and awarding the custody…

■ Appeal by the plaintiff, Irving Bloom, from a determination and order of the Appellate Term of the Supreme Court, made on the 28th day of October, 1919, reversing a judgment and order of the City Court of the City of New York and ordering a new trial.

Cross-appeals by the petitioner, Gertrude Crane, as administratrix, etc., and by the defendant, Charles L. Craig, as comptroller of the city of New York, from an order of the Supreme.

Appeal' by the defendants, James H. Burke 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 Bronx on the 24th day of January, 1919, upon a special verdict of a jury adjudging that a certain, paper writing dated December 15, 1913, purporting to be the last will and testament of James J. Burke, deceased, is not such last will and testament, and also from an order entered in said clerk’s office on the…

Appeal by the defendants, Terry & Tench Company, Incorporated, and another, from a decision and award of the State Industrial Commission, made on the 30th day of June, 1919, and also from a decision and award of said Commission made on the 13th day of January, 1920.

Appeal by the defendants, Century Metal Spinning and Stamping Company and another, from a decision and award of the State Industrial Commission made on the 29th day of January, 1920.

Appeal by the defendants, Fort Montgomery Iron Works and another, from an award of the State Industrial Commission, entered in the office of the said Commission on the 24th day of February, 1919, and also from an award of the said Commission entered in the office thereof on the 11th day of November, 1919.

Appeal by the defendants, Griffin Manufacturing Company and another, from an award of the State Industrial Commission, entered in the office of the said Commission on the 23d day of March, 1920.

Appeal by the defendants, The Foundation Company and another, from an award made by the State Industrial Commission and entered in the office of said Commission on the 18th day of May, 1920.

Appeal by the defendant, Joseph Luczka, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 18th day of February, 1920, upon the verdict of a jury for $4,500, and also from an order entered'in said clerk’s office on the 19th day of February, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendants, Fairfax Hotel Company, Inc., and another, from an award and order of the State Industrial Commission, entered in the New York office of said Commission on the 15th day of December, 1919.

<p>Appeal by the defendant, Glens Falls Insurance Company of Glens Falls, 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 17th day of February, 1920, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of March, 1920, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Morris Greenhill, 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 19th day of June, 1920, as overruled on the pleadings the demurrer interposed by the plaintiff to the “ first ” separate and independent defense set up by the answer of the several defendants now and formerly constituting the firm of Brown Brothers & Co.</p>

Appeal by the plaintiff, Morris Greenhill, 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 19th. day of June, 1920, as overruled on the pleadings the demurrer interposed by the plaintiff to the “ first ” and “ second ” separate and independent defenses set up by the answer of the several defendants now and formerly constituting the firm of Brown Brothers & Co.

Appeal by the plaintiff, Frey & Son, Incorporated, 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 October, 1920, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, Bengol Trading 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 12th day of May, 1920, granting plaintiff’s motion for an injunction pendente lite and appointing a receiver of certain money, the property of defendant Olga Golodetz, which was in the possession of the defendant Bengol Trading Co., Inc.

<p>Appeal by the defendant, Cumberland Glass Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of October, 1919, upon the verdict of- a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1919, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Liens — loan of money to corporation — lender not entitled to lien — Personal Property Law, section 48, construed •—• injunction restraining lender from posting notices of lien and restraining borrower from interfering with such notices.</p> <p>The manager of a corporation who loans money to it evidenced by a promissory note which was agreed to be a “ first lien on the entire assets of the corporation ” does not have a lien under section 45 of the Personal Property Law relating to notices of Hens upon merchandise or the proceeds thereof to secure loans or advances.</p> <p>Section 45 of the Personal Property Law is limited to merchandise and is an extension of the statute relating to liens in favor of factors and others who may enter into agreements to make loans or advances on merchandise or the proceeds thereof, whether the merchandise to be covered by the lien is or is not in existence at the time of the creation of the lien.</p> <p>Hence, a motion by the borrower to restrain the lender from posting notices of a lien claimed under section 45 of the Personal Property Law was properly granted, and a motion by the lender to enjoin the borrower from interfering with such notices was properly denied.</p>

<p>Workmen/s Compensation Law — injury to saleswoman by fall, bruising back and right side — subsequent disability from infected kidney—-evidence not establishing that accident was proxiinate cause of disability — claim dismissed.</p> <p>A saleswoman while working in a hardware department fell, after straining herself by lifting, bruising her back and right side. Her subsequent disability resulted from an infection of the right kidney. There was evidence that the infection was caused by the introduction of a pessary a month after the accident.</p> <p>Held, 'on all the evidence, that the accident was not the proximate cause of the injury, and that, therefore, the award should be reversed and the claim dismissed.</p> <p>John M. Kellogg, P. J., and H. T. Kellogg, J., dissent.</p>

<p>Appeal by the defendants, George W. Stiles Construction Company and another, from an award and order of the State Industrial Commission, entered in the office of the said Commission at Niagara Falls, N. Y., on the 5th day of March, 1920.</p>

<p>Corporations — petition 'for voluntary dissolution alleging that all directors and stockholders desired dissolution — dismissal of petition where one stockholder opposed.</p> <p>A petition for the voluntary dissolution of a corporation and the appointment of a receiver of its property signed by two of the three directors and stockholders and the holders of two-thirds of the capital stock, which alleged that the third director and stockholder had stated that she desired the dissolution of the corporation and that said dissolution was for the best interests of the stockholders, should be dismissed on -the motion of the third director where it appears that at the time the petition was presented said third director not only did not desire dissolution but was opposed thereto.</p> <p>The third director should not be denied the right to have the petition dismissed because the court did not make a final order upon the petition, but sent it to a referee before whom she could appear and contest the merits, for, before the court entertained jurisdiction, she was entitled to have the petition considered upon the exact truth of the attitude of all the directors at the time of presentation.</p> <p>The fact that the third director did at one time and under other and different circumstances favor dissolution could not be used to sustain the petition, for the issue, was whether the petition stated her attitude at the time of the making and presentation thereof to the court for its action.</p>

Appeal by the plaintiff, The Nosrep Corporation, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of June, 1920, granting the defendant’s motion to vacate an order discharging the lis pendens and discontinuing the action.

<p>Cross-appeals from a decree of the Surrogate’s Court of Chemung county, entered February 14, 1920.</p>

<p>Crimes — trial — error to refuse to charge that good character may create reasonable doubt — error to refuse to charge that People had right to show bad character after good character shown.</p>

<p>Appeal from an award of the Stato Industrial Commission, entered in the office of said Commission on the 19th day of January, 1920.</p>

Appeal by Eugene J. Sullivan, as sole surviving executor, from so much of a decree of the Surrogate’s Court of the county of Saratoga, entered in the office of said'court on the 11th day of March, 1920, as adjudges that Jesse Stiles, as executor of the last will and testament of Loring F. Freeman, deceased, has a valid claim against the estate of Edward J. Heffernan, deceased.

<p>Appeal from a judgment of the County Court of Brie county in favor of the defendant, entered in the office of the clerk of said county on the 23d day of October, 1919, and also from an order entered in said clerk’s office on the 22d day of September, 1919, denying plaintiff’s motion for a new trial.</p>

<p>Motion to vacate an order staying execution of a judgment pending appeal to the Appellate Division.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office November 6, 1919, granting plaintiff’s motion to enjoin the defendant The Park & Pollard Company from prosecuting any actions against the defendants, respondents, upon any of the issues in this action during tho pendency thereof.</p>

<p>Insurance— insurance taken out and retained by mortgagor — duty of mortgagee to have insured comply with conditions — mortgages — duty of mortgagee to surrender collateral on payment.</p>