Volume 194 — New York Appellate Division Reports

<p>Appeal by the plaintiff, Harriet E. Ostrander, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of Saratoga on the 24th day of May, 1920, on the ground that the amount for which the defendant is adjudged accountable is insufficient.</p> <p>Appeal by the defendant, George N. Ostrander, 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 24th day of May, 1920, removing defendant as the alleged trustee of plaintiff’s property, and finding that he holds of her money $153,039.42, and directing him to pay said amount to the substituted trustee, The Adirondack Trust Company.</p>

Appeal by the defendants, American Hide and Leather Company and another, from an award of the State Industrial Commission, entered in the office of the said Commission on or about the 12th day of August, 1919.

Appeal by the defendants, William Voorhees and another, from a decision and award of the State Industrial Commission,' made on the 28th day of January, 1920.

Appeal by the plaintiff, Adrian M. Gainer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 20th day of January, 1920, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case after a trial at the Nassau Trial Term, and also from an order entered in said clerk’s office on the 18th day of February, 1920, granting defendant’s motion to dismiss the complaint at…

Appeal by the defendant, United Cities Realty Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of April, 1920, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 12th day of April, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the claimant, Louis A. Cramer, from that portion of a decree of the Surrogate’s Court of the county of Rockland, entered in the office of said surrogate on the 14th day of December, 1918, which rejected and disallowed the first claim made by the claimant.

Appeal by the defendants, Abraham W. Wolf and another, 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 14th day of April, 1920, granting plaintiff’s motion to vacate a verdict rendered by direction of the court in favor of the defendants.

Appeal by the plaintiff, William Schein, 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 18th day of April, 1919, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing on the merits the complaint in a vendee’s suit to enforce his lien on property in the former town of New Lots, Bangs county.

Appeal by the defendant, B. Altman & Co., from an order of the Supreme Court, made at the New York Special Term, bearing date the 28th day of April, 1920, and entered in the office of the clerk of the county of New York, overruling the •defendant’s demurrer to the complaint and granting leave to the defendant to serve an answer.

<p>Crimes — grand larceny — failure of attorney to account for money collected — evidence insufficient to sustain conviction.</p> <p>A conviction of the crime of grand larceny in the second degree cannot be sustained where the evidence shows merely that the defendant was a member of a firm of attorneys which did a large investment business; that money was received by the firm to discharge a mortgage held by it for one of its clients; that the cheek was indorsed to the defendant and then to the bank in which the defendant had an account for the firm by a clerk who held a power of attorney; that immediately after dissolution of the firm the defendant filed a petition in bankruptcy and scheduled the amount due the client as a liability, and there is nothing outside of the bankruptcy schedules to connect the defendant personally with the transaction or to show that in retaining the money the firm acted contrary to the directions of the client.</p>

<p>Appeal by the defendant, Degnon Contracting Company, from an award and order of the State Industrial Commission, entered in the New York office of said Commission on the 10th day of December, 1919.</p>

<p>Workmen’s Compensation Law — proceedings against painter who hired deceased and also against owner of house — when appearance of owner in proceedings does not authorize award against him — proceedings opened because owner denied opportunity to present case.</p> <p>Where it appeared that the claimant’s husband was employed by a painter to assist him in painting the house of the defendant; that a claim was filed against the defendant more than one year from the date of the accident; that proceedings were also instituted against the painter, and that the only notice of hearing which the defendant had was in those proceedings, his appearance therein and failure to raise the question as to the time of filing a claim against himself did not justify an award against him in proceedings instituted and apparently carried on against the painter.</p> <p>The application of the defendant to. open the proceedings on the ground that he had never been notified that they were being had against himself, and, therefore, that he had been denied an opportunity to present his case, should have been granted.</p> <p>John M. Kellogg, P. J., dissents, with opinion.</p>

<p>Appeal by the defendant, United States Railroad Administration (New York Central Railroad), Walker D. Hines, as Director-General of Railroads, from a 'decision and award of the State Industrial Commission, rendered on the 5th day of November, 1919.</p>

Appeal by the defendants, Metal Package Corporation and another, from an award, order and decision of the State Industrial Commission, made on the 19th day of September, 1919, which award allowed the claimant compensation at the rate of eleven dollars and fifty-four cents per week for a period of fourteen weeks, and the case continued.

Appeal by the claimant, Belmar Contracting Company, Inc., from so much of a judgment of the Court of Claims, entered in the office of the clerk of said court on the 16th day of March, 1920, upon the decision of the court as decrees and adjudges that claimant is not entitled to an award and judgment against the defendant for damages arising from the failure of the defendant to permit the claimant to construct a certain highway in the fall of 1915.

Appeal by the claimants, Mary E. Spencer and another, from a judgment of the Court of Claims in their favor, entered in the office of the clerk of said court on the 2d day of March, 1920.

<p>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 30th day of June, 1920, directing the issuance of a peremptory writ of mandamus, and also, as stated in the notice of appeal, from such peremptory writ of mandamus.</p>

Appeal by the contestant, Minnie Merkle, from a decree of the Surrogate’s Court of the county of Richmond,’ entered in the office of the clerk of said court on the 28th day of January, 1920, which admitted to probate a paper dated March 4, 1919, propounded as the will of Carl Rapp, who died in the Staten Island Hospital on March 6, 1919.

Appeal by the defendant, Handel-Maatschappij Moraux & Company, 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 13th day of May, 1920, denying defendant’s motion to vacate a warrant of attachment. On March 30, 1920, an attachment was issued to the sheriff of New York county against defendant, as a foreign corporation.

Appeal by the plaintiff, Gustav A. Jurgensen, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 7th day of May, 1920, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Charles L. Allers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 8th day of June, 1920, upon the decision of the court rendered after a trial at the Richmond Special Term, and also from an order made at the Kings County Special Term and entered in said clerk’s office on the 1st day of September, 1920, amending said judgment, and also from said judgment as amended.

Appeal by the plaintiff, Sarah Glickman; from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of November, 1919, denying her motion to punish the defendant for his failure to pay alimony due her, and to adjudge defendant guilty of contempt.

Appeal by the defendant, Pincus Glickman, from a judgment of the Court of Special Sessions of the City of New York, county of Kings, rendered on the 7th day of April, 1920, convicting him of the crime of violating section 225 of the Sanitary Code of the City of New York. (See Code of Ordinances of City of New York, chap. 20, § 225.)

<p>Appeal by Frank Ballard from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 21st day of June, 1920, and also from a decree as resettled, 'entered in said surrogate’s office on the 23d day of June, 1920, and also from so much of an order entered in said surrogate’s office on the 28th day of June, 1920, as denies an application to strike from the record a statement made by the surrogate, as follows: “The foregoing refusal to find is based upon the ground that the requests to find were not made until after the close of the trial,” and for the failure of the court to amend the decree respecting the Storms judgment filed therewith.</p>

Appeal by the defendants, Helen Greiff and another, from so much of a judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 3d day of July, 1920, upon the decision of the court rendered after a trial at the Westchester Special Term, as grants equitable relief by way of holding void certain transfers of stock by Seymour W. Bonsall to the defendants and applies said stock towards .the payment of a…

Appeal by the defendant, Spring Valley Wood Products Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 19th day of July, 1920, upon the decision of the court rendered after a tria'l at the Rockland Special Term, impressing a lien upon certain proceeds of insurance upon a building destroyed by' fire on May 12, 1920, in favor of plaintiff as equitable owner, to the extent of…

Appeal by the plaintiff, Ella Guthrie Willard, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of .the clerk of the county of Suffolk on the 13th day of October, 1920, which denied the plaintiff’s motion to confirm the report of a referee in favor of granting an absolute divorce to the plaintiff, vacated the order of reference and directed the case to be tried in open court.

<p>Husband and wife —• action for breach of promise to marry — necessity for reply to defense of general release — right to raise issue of fraud in procuring release — evidence — res gestee — admissibility of conversation prior to execution of release on question of fraud — admissibility on question of actual damages of evidence as to unchastity of plaintiff where plaintiff had introduced evidence of chastity — admissibility of evidence by plaintiff as to abortions submitted to at defendant’s request.</p> <p>In an action for breach of promise to marry, allegations in the answer as to a general release executed by the plaintiff did not require a-reply and were deemed controverted by the plaintiff by traverse or avoidance.</p> <p>Although this is an action at law and the relief sought by the plaintiff from the effect of the release was based upon purely equitable grounds, the issue might be tendered and determined herein.</p> <p>The plaintiff having contended that the release pleaded by the defendant had been procured by fraud and deceit the defendant was entitled to prove, as a part of the res gestee, a conversation in relation to a settlement which took place between the plaintiff and the defendant and others before the release was executed.</p> <p>The defendant was not obliged to plead the facts inducing the settlement to render such facts admissible in answer to the plaintiff’s testimony that she had been deceived and defrauded.</p> <p>In an action for breach of promise to marry, where it appeared that plaintiff and defendant had lived together for several years in meretricious relationship and after the breaking off of such relations plaintiff commenced the action, plaintiff having voluntarily introduced evidence of her chastity prior to the relationship and her faithfulness to defendant, although such facts were not alleged in the complaint, the defendant should have been permitted to show, on the question of actual damages, that plaintiff was not chaste when she first met defendant and that she was not faithful to defendant during the continuance of their relations.</p> <p>In the absence of appropriate allegations in the complaint it was error to permit the plaintiff to show, over defendant’s objections, that during the period of the relationship between the parties plaintiff consented to several abortions at defendant’s request.</p> <p>It was error to permit plaintiff to testify that she requested defendant not to insist upon one of the abortions so that she might bear a child, but that he refused; the introduction of such evidence introduced a highly speculative element of damage.</p>

<p>Appeal by Belnord Realty Company and another from a decree of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 14th day of May, 1919, overruling objections to the account of the administratrix herein and judicially settling said account.</p>

Appeal by the plaintiffs, William M. Watson and others, copartners, etc., 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 18th day of August; 1920, as requires the plaintiffs to give a bill of particulars of the consideration of a negotiable instrument upon which the plaintiffs sue.

Appeal by the plaintiff, Lillian B. Gelbman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 18th day of February, 1920, upon the decision of the court rendered after a trial at the Bronx Special Term dismissing the complaint at the close of plaintiff’s case.

<p>Carriers — action for damages for failure to divert car of freight en route — freight consigned under uniform bill of lading and straight form of consignment — diversion order given by telephone with direction for order bill of lading — original bill destroyed and order bill delivered before car reached original point — motion for judgment on pleadings — stipulation considered.</p> <p>•The defendant was not liable for damages resulting from its failure to divert a carload of apples en route under an interstate shipment where it appears that the original shipment was under a uniform bill of lading and straight form of consignment and that the diversion order, which was telephoned the defendant’s agent, required a reconsignment to another person under an order bill of lading, though the defendant’s agent attempted such diversion and destroyed the original bill of lading and delivered the order bill to the plaintiff under which the action is brought, for the tariffs and classifications in effect at that time regulating diversion of interstate shipments consigned under a uniform bill of lading provided that a reconsignment or diversion en route could only be made if requested in writing, and the plaintiff was bound by said rules.</p> <p>It seems, that a stipulation that certain constructions may be placed upon certain clauses in the reply may be considered on a motion for judgment on the pleadings.</p>

Appeal by the defendant, Frank D. Dunbar, from a judgment of the County Court of Cayuga county, rendered on the 10th day of June, 1920, convicting him of the crime of bigamy.

<p>Sales — sale of hay in mow to be pressed and delivered at railroad station — when title passes — replevin — option of buyer to return property.</p> <p>The title to hay in a mow does not pass to the buyer at the time of the contract of sale, under section 100 of the Personal Property Law, where it appears that the buyer was to furnish a press and operators to bale the hay, that the seller was to furnish men to pitch the hay to the press and to take care of the bales as they came therefrom and was to draw the baled hay to the railroad station.</p> <p>In an action in replevin by the buyer, held, that a judgment in favor of the seller should be modified so as to give the buyer the option to return the hay.</p>

Appeal by the defendant, G. W. Perkins, as president, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 12th day of January, 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 same day denying defendant’s motion for a new trial made upon the minutes.

<p>Husband and wife — annulment of marriage — evidence — admissibility of original school records to show age of plaintiff.</p> <p>In an action brought by an infant to annul her marriage on the ground that she was under the age of consent when the marriage was contracted, the original school records of the plaintiS’s age, which were required by law to be kept, are evidence of the facts thus required to be recorded and are admissible to establish her age, although the data, of age came from a school of a lower grade and the transcriber was not called.</p> <p>The constant entry of the date of the plaintiff’s birth Garbled through the school period ga,ve it the character of an admission whicla^ the plaintiff confirmed'by accepting a record card. \</p>

<p>Appeal by the plaintiff, Theodore A. Alexander, from, a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bangs on the 2d day of March", 1918, upon the dismissal of the complaint upon the merits by direction of the court at the close of the case.</p>

<p>Appeal by the plaintiff, James Howden & Company of America, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April, 1920, overruling the defendant’s demurrer to affirmative defenses contained in plaintiff’s reply to the defendant’s counterclaims.</p>

<p>Appeal by the plaintiff, The Q. R. S. Company, 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 6th day of August, 1920, upon the decision of the court rendered after a trial at the Bronx Special Term dismissing the complaint upon the merits.</p>

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

Appeal by the plaintiff, Otilie Miller, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of May, 1920, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the relator, Rayland Realty Co., 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 Kings on the 19th day of October, 1920, denying its motion for a peremptory writ of mandamus directed to the defendant, as clerk of the Municipal Court of the City of New York, commanding him to issue to the relator a warrant to execute a final order in summary proceedings granted the relator by the…

<p>Appeal by the defendant, Interboro Brewing Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of March, 1920, upon the verdict of a jury, 'and also from an order entered in the said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.</p> <p>On June 14, 1915, plaintiff, Bullinger, and defendant brewing company made a written agreement that recites a prior oral agreement whereby the defendant undertook to sell and the plaintiff to buy certain real estate in consideration of plaintiff’s entering into such written agreement. The agreement then provides that, for good and valuable consideration, and in further consideration of defendant’s selling plaintiff the real estate in question, defendant agrees to “ sell and deliver to the said Bullinger, his successors or assigns, all the lager beer, sparkling ales and bottled beer which the said Bullinger, his successors or assigns, may use, sell or give away in the premises hereinafter mentioned, during the term of ten (10) years from the date of this agreement,” at a fixed price. And Bullinger agrees to buy at that price from the defendant “ all the lager beer, sparkling ales, and bo'ttled beer to be used, sold or given away in the premises occupied by the said Bullinger as a saloon, or to be occupied by his successors or assigns, and to the exclusion of any other beer, sparkling ales or bottled beer, manufactured or sold by any other person or persons, firm or firms, corporation or corporations.” It provides that if the plaintiff shall not purchase from the defendant exclusively and in the further event that default in payments for the potables shall continue for thirty days after written notice be given by the defendant to the plaintiff, or in the event that the sale of lager beer, sparkling ales and bottled beer at the premises is discontinued, the defendant is given the option to repurchase the premises for the original price of $15,000. The agreement is made an instrument affecting the land, which land is particularly described therein.</p> <p>Under this agreement, and until February, 1918, plaintiff bought beer from defendant and paid for it. In December,</p> <p>1917, the proclamation of the President restricting brewers to a brew containing two and seventy-five one-hundredths per cent of alcohol and to the use of seventy per-cent of the raw material theretofore employed became effective. (See 40 U. S. Stat. at Large, 1728, 1729.) Defendant in that month entered into certain negotiations with the Ebling Brewing Company, which resulted in defendant’s discontinuing its brewery in February,</p> <p>1918, The defendant delivered beer to the plaintiff until February 12, 1918. From February 15, 1918, until July 1,</p> <p>1919, plaintiff purchased beer from the Ebling Brewing Company. The purchase aggregated 575% barrels for 88,986.03, an excess of $2,609.53 over what plaintiff would have paid defendant at the said contract price. On July 1, 1919, plaintiff’s business, by force of Federal legislation, became illegal. (See War Prohibition Act [40 U. S. Stat: at Large, 1045, chap. 212; Id. 1046], § 1; U. S. Const. 18th Amendt.; 40 U. S. Stat. at Large, 1941, 1942; National Prohibition Act, being 41 U. S. Stat. at Large, 305, chap. 83.)</p>

Appeal by the defendant, The Charles H. Brown Paint Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of November, 1920, in so far as the said order denies the motion of the defendant to vacate and further modify the order for examination of the defendant and others before trial.

Appeal by the plaintiffs, Josephine Orton and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 10th day of June, 1920, upon the decision of the court rendered after a trial at the Kangs County Special Term dismissing the complaint upon the merits, and also, as stated in the notice of appeal, from the said decision entered in said clerk’s office on the 12th day of April, 1920.

<p>Landlord and tenant — lease of floor in loft building — suit to restrain landlord and prior tenant from placing signs on outside of building — constructive notice — lease reserving to landlord control of outside walls — outside walls and roof not included in lease.</p> <p>In an action to restrain the defendants, the owner and a tenant of a loft building, from placing any signs on the outside wall of said building abutting upon .the floor leased by the plaintiff it appeared that the lease to the defendant tenant, which was duly executed and recorded before that to the plaintiff was executed, gave to said defendant the right to paint signs on the outside walls of the building within certain limits and thereafter the landlord granted permission to the said defendant to paint signs on that part of the outside walls of the building inclosing the staircases, elevators and fire towers of said building; that the lease to the plaintiff expressly provided that it should not have the right to place any sign whatever on the outside walls of the building except the placing of an appropriate sign at the entrance of the building and except such as might be consented to in writing by the landlord; and that the said defendant tenant did place certain signs upon the outside walls of the building at the part occupied by the elevators, staircases and fire towers and abutting the floor occupied by the plaintiff.</p> <p>Held, that the defendant’s lease having been recorded the plaintiff must be deemed to have had constructive notice thereof.</p> <p>The'landlord acted within its rights in granting to the defendant the right to place the sign upon the building to which the plaintiff objects.</p> <p>The landlord reserved the right to control the advertising space on the outside walls so far as the plaintiff was concerned.</p> <p>Moreover, where a building is leased by a landlord to a tenant the outside walls and the roof of the building are not included in the demise; said walls and roof being for the common use of all the tenants, they are reserved to the landlord, and at all times remain under his control.</p> <p>Furthermore, the entibe portion of the walls on which the said signs were placed was opposite the fire towers, staircases and elevators of the building, a part of the building maintained by and under the control of the landlord.</p>

Appeal by the defendants, Julius G. Kugelman and another, copartners, etc., from a determination of the Appellate Term of the Supreme Court, made on the 6th day of November, 1919, and entered in the office of the clerk of the county of New York, affirming a judgment of the Municipal Court of the City of New York, borough of Manhattan, ninth district, in favor of the plaintiff.

Appeal by the defendant, Augusto Durand, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of July, 1920, overruling his demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings. ¡

<p>Sales — action to recover for breach of contract of sale — effect of order of President fixing maximum price at less than contract price — application of price-fixing order to contracts executed prior thereto — constitutional law — power of Congress to enact war measure impairing obligation of existing contracts.</p> <p>In an action to recover damages sustained by reason of the defendant’s failure to take deliveries of a chemical product known as twenty per cent oleum it appeared that the contract, which was executed on September 28, 1917, fixed the price at forty-five dollars per ton and provided for delivery in installments; that thereafter and before final delivery the President of the United States, pursuant to the authority in him vested by the Lever Act, which became a law on August 10, 1917, issued an order fixing the maximum price of oleum at thirty-two dollars per ton, said price to take effect on June 27, 1918.</p> <p>Held, that while the contract was not illegal in its inception, its performance became illegal after the promulgation of the presidential order, and that order had the effect of destroying the agreement.</p> <p>The price-fixing order of the President applied to and affected contracts for the commodity in question made before the issuance of the order.</p> <p>Congress has the power to enact a law as a war measure which will have the effect of impairing the obligation of existing' contracts, and the Lever Act furnishes inherent evidence that the intention of Congress was to ignore existing contracts concerning the commodity in question.</p>

<p>Appeal by the defendant, Harris Funic, from so much of an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 24th day of May, 1920, as sustains plaintiff’s demurrer to a counterclaim contained in said defendant’s answer.</p> <p>The ground of the demurrer is that the counterclaim does not state facts sufficient to constitute a cause of action.</p>

<p>Appeal by the defendant, Insurance Company of North America, from an order and determination of the Appellate Term of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of New York on the 13th day of May, 1920, affirming a judgment of the Municipal Court, Borough of Manhattan, Ninth District.</p>

<p>Parties — action on sealed instrument — demurrer to complaint in action on sealed instrument against person not party thereto —• sufficiency of seal — leave to amend complaint.</p> <p>It seems, that an action cannot be maintained on a sealed instrument against a person not a party thereto.</p> <p>In an action on a sealed instrument brought against a corporation not a party to the instrument, the court, upon a demurrer which questions the sufficiency of the complaint, will not go into a refinement differentiating different possible seals, and the demurrer will be sustained where the instrument which was signed by an individual recites that the parties “ have hereunto set their hands and affixed their seals,” though the seal used is that of a corporation.</p> <p>Inasmuch as the contract in the action was made in Missouri and there is a question whether in that State a seal has any efficacy to alter the rights of a party to a written instrument, the plaintiff should have been given leave to amend the complaint.</p>

Appeal by the plaintiff, Marconi Wireless Telegraph Company of America, 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 14th day of April, 1920, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint, and also from an order entered in said clerk’s office on the 5th day of May, 1920, denying the plaintiff’s motion…

Appeal by. the defendant, Frederic A. Pee,so, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 19th day of February, 1920, upon the decision of the court rendered after a trial at the New York Special Term directing a partnership accounting; also an appeal by the plaintiff, Meyer L. Rhein, from so much of said judgment as authorizes an allowance to the defendant for the value of his services upon such an…

<p>Appeal by the plaintiff, Charles P. Dorff, 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 May, 1920, in so far as said order overrules the plaintiff’s demurrers to the first and third defenses in the answer.</p>

Appeal by the defendant, Joseph Fried, 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 23d day of December, 1919, upon the verdict of a jury for $300. !

<p>Trial — action to recover commissions agreed to be paid — right to recover on quantum meruit — compromise verdict — defendant prejudiced by compromise verdict though for less than plaintiff's demand.</p> <p>In an action to recover commissions, which the plaintiff alleged the defendant agreed and promised to pay, a recovery cannot be had on quantum meruit and all evidence tending to show the reasonable value of the plaintiff’s services was properly excluded.</p> <p>Where the amount due the plaintiff is fixed and certain and there is no theory on which, if he recovers at all, he can be granted less than the full amount, a compromise verdict is not justified by the evidence and represents a disagreement of the. jury as to liability and should be set aside.</p> <p>The defendant was prejudiced by the verdict though it was less than the plaintiff’s claim, for the plaintiff was entitled to the full amount or nothing and the defendant was entitled to have that issue determined.</p>

Appeal by the defendant, Battery Park Trading Co., Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27th day of March, 1920, upon the verdict of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 10th day of March, 1920, denying defendant’s motion for a commission to take testimony, and also from an order entered on the 20th day of March,…

Appeal by the plaintiff, Union Exchange National Bank of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1920, overruling the plaintiff’s demurrer to the counterclaim contained in the defendant’s answer.

Appeal by the defendant, Harden, Orth & Hastings 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 7th day of Hay, 1920, overruling the defendant’s demurrer to the complaint.

Appeal by the plaintiff in the first-entitled action, Frank Bisogno, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of February, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of December, 1918, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Juan Ulacia and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of January, 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 4th day of February, 1920, denying defendants’ motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by James E. Burr in the first-entitled proceeding from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 3d day of November, 1919, refusing to set aside the appointment of the temporary administrator of the estate of Harriet A. Curtis.

Appeal by the plaintiff, Raymond C. Parker, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of August, 1920, denying plaintiff’s motion for judgment on the pleadings and sustaining the demurrer of the defendant to the amended complaint.

Appeal by the plaintiff, Carmine Esposito, from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 25th day of May, 1920, reversing a judgment of the City Court of the City of New York in favor of the plaintiff.

Appeal by the plaintiffs, Eugene Gutman and another, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 9th day of June, 1920, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the plaintiffs, entered in the office of the clerk of said court on the 18th day of February, 1920, upon the verdict of a jury, and ordering…

Appeal by the defendant, John A. Shellito, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1920, setting aside the verdict of a jury in favor of the defendant and granting a new trial.

Appeal by the petitioners, Charles Barthelmess and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of June, 1920, denying their motion brought on an order to show cause dated May nineteenth and returnable May twentieth to have the respondents, constituting the municipal civil service commission of New York city, recall and annul a certification of the name of George…

Appeal by the defendant, Brookdale Mills, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of April, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, Columbia Trust Company, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the City Court of the City of New York on the 26th day of May, 1920, affirming a judgment of the City Court of the City of New York in favor of the plaintiff entered upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Edward M. P. Murphy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of August, 1920, denying plaintiff’s motion to enjoin and stay proceedings in another action by the defendant herein for separation.

<p>Appeal by the defendant, United States Fastener 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 20th day of November, 1920, vacating an order for the examination of the plaintiff, through its president, before trial.</p>

<p>Motor vehicles — negligence — injury caused by starting of automobile left unattended in public street — res ipsa loquitur — negligence of defendant limited by allegations of complaint — when direction of verdict for defendant proper — when leaving automobile unattended in public street is not negligence — starting of such machine by third persons.</p> <p>Action to recover for personal injuries wherein it appeared that an automobile which the defendant left unattended in a city street while he went to a restaurant started without signal or warning, and, crossing the street, ran upon the opposite sidewalk and struck the plaintiff. Evidence examined, and held, to present a prima facie case under the rule of res ipsa loquitur if the charges of negligence in the complaint were sufficiently broad.</p> <p>But where the negligence charged in the complaint and limited by the plaintiff’s bill of particulars .was confined to the fact that the defendant left his automobile standing in the public street temporarily unguarded and unprotected against the acts of third parties, and the uncontroverted evidence showed this, the jury was not warranted in finding the defendant negligent, and hence the direction of a verdict for the defendant was proper.</p> <p>An automobile is not deemed to be a nuisance or a dangerous machine and the owner or custodian thereof may leave it standing in a public street temporarily without thereby being subjected to a charge of negligence, provided he takes the ordinary precautions of securing it by the appliances with which it is equipped for that purpose, and if thereafter it be set in motion by the willful or negligent act of a third party, such willful or negligent act will be deemed the proximate cause of injury resulting therefrom.</p> <p>Dowling and Mebbell, JJ., dissent.</p>

<p>Appeal by the defendants, Peter Cooper Bryce and another, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 25th day of September, 1920, granting plaintiff’s motion for leave to serve and file a supplemental summons and complaint and staying -summary proceedings in the Municipal Court until the trial and determination of this action.</p>

Appeal by the defendants, Henry Arey Ludlam and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May, 1919, upon the decision of the court rendered after a trial at the New York Special Term vacating and setting aside a trust deed and returning the trust property to the grantor.

Appeal by the defendant, S. S. Corporation, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the c.lerk of the county of New York on the 14th day of June, 1920, reversing an order of the City Court of the City of New York which permitted the appellant to be made a party to the action.

Appeal by the defendant, E. R. Sherburne 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 24th ■ day of November, 1920, granting plaintiff’s motion for a preliminary injunction.

Appeal by the defendant, Avedon & Company, Inc., from a determination and order of the Appellate Term of the Supreme Court, entered in the office of the clerk of said court on the 1st day of April, 1920, reversing a final order of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District.

Appeal by the plaintiff, Max J. Kramer, as executor, etc., 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 28th day of May, 1919, upon the decision of the court rendered after a trial at the Bronx Special Term dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, Waterson, Berlin & Snyder Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1920, denying defendant’s motion for leave to serve an amended answer, setting up an affirmative defense and an offset to plaintiff’s claim.

Appeal by the defendant, Patrick H. Roche, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 19th day of April, 1920, denying defendant’s motion to compel the plaintiff to reply to the second and third separate defenses alleged in the defendant’s answer which set up the six and ten-year Statutes of Limitations, respectively, and to give security for costs.

Appeal by Jacob Klein 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 9th day of September, 1920, granting the application and directing Jacob Klein to pay said petitioner the sum of $1,226.26 within ten days after service of order with notice of entry.

Appeal by the relator, Daniel E. Wolfe, 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 October, 1920, dismissing a writ of habeas corpus and remanding the relator to the keeper of the city prison.

Appeal by the plaintiff, Sylvina E. Wall, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk, of the county of New York on or about the 19th day of August, 1919, granting defendant’s motion to set aside the verdict and for a new trial.

<p>Appeal by the defendant, Viele, Blackwell & Buck, 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 24th day of July, 1919, upon the report of a referee appointed to hear and determine all the issues, and also from an order entered in said clerk’s office on the 23d day of July, 1919, granting plaintiff’s motion for an extra allowance.</p> <p>Appeal by the plaintiff, Rudolf E. F. Flinseh, from said judgment in so far as it fails to compute the damages awarded to the plaintiff upon the basis demanded by him.</p>

<p>Motion for restitution to the plaintiff of the custody of the children of the parties, made upon settlement of the order. of the Appellate Division reversing a judgment of the Supreme Court in favor of the defendant. (See Chamberlin v. Chamberlin, 193 App. Div. 784.)</p>

<p>Appeal by the defendant, Argos Mercantile Corporation, from a judgment of -the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of April, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Edgar A. Levy Leasing 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 26th day of November, 1920, denying plaintiff’s motion for judgment on the pleadings, consisting of the complaint and answer.

<p>Appeal by the plaintiff, Clemilt Realty 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 26th day of November, 1920, denying plaintiff’s motion for judgment on the pleadings, consisting of the complaint and answer.</p> <p>The complaint alleges that the plaintiff is a domestic corporation; that on the 20th day of August, 1920, it entered into an agreement whereby it rented to the defendant an apartment in the apartment house known as 561 West One Hundred and Forty-first street, for a term of two years commencing October 1, 1920, at the yearly rental of $1,080, payable monthly in advance on the first day of each month; that the defendant has refused to pay the installment due on October 1, 1920, amounting to $90, although due demand has been made therefor; that the plaintiff duly performed all the terms of the lease on its part to be performed; that by reason of the premises there is due to the plaintiff from, the defendant $90, for which sum plaintiff demands judgment.</p> <p>The answer denies that there is due to the plaintiff from the defendant the sum of ninety dollars, and alleges that the premises are located in a city of the first class, and that the rent set forth in the agreement alleged in the complaint is unjust and unreasonable and the said agreement under which the said rent is sought to be recovered is oppressive.</p>

<p>Appeal by the plaintiff, Jacob L. Guttag, from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 19th day of October, 1920, denying plaintiff’s motion for judgment on the pleadings, consisting of the complaint and the demurrer.</p>

<p>Appeal by the plaintiff, 810 West End Avenue, 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 26th day of November, 1920, denying plaintiff’s motion for judgment on the pleadings, consisting of the complaint and a demurrer thereto, under section 547 of the Code of Civil Procedure.</p>

Appeal by the relator, Brixton Operating 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 13th day of December, 1920, denying relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, William J. Murphy, as clerk, 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, granting a peremptory writ of mandamus directing him to sign and issue a warrant upon a final order made on September 16, 1920, by the Municipal Court, Fourth District, Borough of Manhattan, in a summary proceeding duly instituted in that court by the…

Appeal by the defendant, Thomas O’Connell, as clerk, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of October, 1920, granting a peremptory writ of mandamus.

Appeal by the plaintiff, George C. Smith, 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 29th day of July, 1920, upon a decision of the court rendered after a trial at the Bronx Special Term.

Appeal by the defendant, American Steel Export 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 22d day of April, 1920, upon the decision of the court rendered after a trial at the New York Trial Term, the parties having consented in open court to the discharge of the jury, and also from an order entered in said clerk’s office on the 20th day of April, 1920, amending the decision.

<p>Appeal by the defendants, The Evening Mail and another, from an award, order and- decision of the State Industrial Commission made on the 12th day of April, 1920.</p>

<p>Appeal by the defendants, Morrow Manufacturing Company and another, from a decision and award of the State Industrial Commission made on the 1st day of December, 1919.</p>

Appeal by the defendants, United Kimono Company and another, from an award and order of the State Industrial Commission entered in the New York office of said Commission on the 11th day of May, 1920.

<p>Appeal by the plaintiff, Security Bank and Trust Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 13th day of May, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Reargument of an appeal by the defendants, William Spencer & Son Corporation and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 9th day of July, 1919, and also from an award entered in the office of said Commission on the 3d day of November, 1919, rescinding the aforesaid award and making an award.</p> <p>On the first argument of the appeal at the May term, 1920, the award of the Commission was affirmed in July, 1920. (See 193 App. Div. 920.) It is urged now that admiralty has exclusive jurisdiction and that the facts in this case show that it was an admiralty case.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 19th day of May, 1919, directed to the Public Service Commission of the State of New York, Second District, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings, decisions, opinions and actions had in-fixing and determining the rates for gas furnished by the relator to its customers.</p>

Appeal by the defendants, Raymond H. Chuck and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of March, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of April, 1920, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Henry K. Pomroy and others, from an order of the Supreme Court, made, at the New York Special Term and entered in the office of the clerk of the county of New York o.n the 5th day of August, 1920, overruling the demurrers of the defendants.

Appeal by the defendant, .Walker D. Hines, as United States Director General of Railways, 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 May, 1920, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the sanu-.; «js$denying defendant’s motion to set- aside the verdict und lor a new trial made upon the On June 22, 1920, Joira Barton…

Appeals by Richard W. Naylor and others from 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 July, 1920, construing the will of Joseph Naylor, deceased, and denying commissions on a part of the principal of a trust fund, being the increase on the sale of certain property over the amount for which the trustees took said property.

Appeal by Percival McCeney Werlich, as administrator, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 1st day of November, 1920, directing the clerk thereof to certify certain papers as part of the record on appeal to the Court of Appeals.

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 11th day of February, 1920, awarding to the claimant $997,066.75 and interest for lands on the Brooklyn water front appropriated by the State for the purposes of the Gowanus canal.

Appeal by the plaintiff, Mary W. Levett, from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 29th day of March, 1920, affirming, without costs, a judgment of the City Court of the City of New York.

<p>Malicious prosecution — plaintiff indicted for larceny on evidence furnished in part by defendant’s agents — indictment dismissed — defendant not connected with instigation or continuance of malicious prosecution — complaint dismissed — excessive verdict — punitive damages not authorized.</p> <p>In an action for malicious prosecution wherein the plaintiff had a verdict for $100,000 it appeared that on the 23d day of December, 1916, a customer came into the store of the defendant in New York city and made purchases fo.' which he paid in part with forged travelers’ checks on a Canadian bank; that the same purchaser passed similar forged checks to other firms in the city of New York about the same time; that defendant’s floor manager made complaint to the police department of the city of New York, which, after an investigation, reported the matter to the district attorney’s office; that before indictment the plaintiff was arrested in St. Louis charged with passing similar forged checks on the same bank; that an agent of the defendant was sent to St. Louis by the district attorney, at his expense and over the protest of the defendant, to identify the plaintiff; that the plaintiff was extradited from Missouri and brought back to New York city where he pleaded not guilty and was admitted to bail; that thereafter on the testimony of the defendant’s agents a superseding indictment was found and on the application of plaintiff herein a commission was allowed to take evidence in his behalf; that as a result of the evidence taken on said commission the district attorney became convinced that a mistake had been made and procured the dismissal of the indictment, though he did so against the objection of one of the defendant’s agents.</p> <p>Held, on all the evidence, that the defendant was not connected with the instigation or continuance of any malicious prosecution and that the complaint should be dismissed.</p> <p>If the defendant alone were responsible for'the injury to the plaintiff’s reputation and for the damage caused by his false or mistaken arrest, the verdict might not be said to be excessive, but in view of the fact that the defendant is only in part responsible for the injury, and as the plaintiff was first arrested for the crimes in St. Louis and afterwards for committing fraud on five different firms in New York city, it cannot be said that the acts of the defendant could have been the cause of all the damage suffered.</p> <p>Upon the evidence presented there was no justification for the charge of the court authorizing the jury to assess upon the defendant punitive damages, for a corporation is not liable for exemplary damages unless the act of its agent was explicitly authorized or afterwards ratified, or there was negligence in the hiring of an improper servant, and the evidence does not establish the existence of any of these conditions.</p> <p>The fact that the defendant permitted its servant to go to St. Louis to make the identification of the plaintiff in the criminal proceeding, after protesting, and at the expense of the district attorney, was not the instigation or the continuance of a prosecution by the defendant.</p> <p>Furthermore, at the time that the defendant’s agent was sent to St. Louis, there existed as a matter of law probable cause for the prosecution of the plaintiff herein, so that any act of the defendant, even though it had acted' voluntarily in sending its servant to St. Louis, would then have been justified as matter of law as supported by probable cause for belief that the plaintiff was the party guilty of the frauds in New York city.</p> <p>The fact that the defendant’s agents were witnesses before the grand jury which handed down the superseding indictment is not such a participation by the defendant in the prosecution as would subject it to liability.</p> <p>The identification by the defendant’s agents of the plaintiff herein as the one who committed the crime does not, on the facts of the case, establish bad faith on the part of the defendant.</p> <p>Any protest made by the agent of the defendant against the dismissal of the superseding indictment was not the protest of the defendant but was the protest of the agent individually, and, furthermore, the protest was not effectual in any way to cause further prosecution because the indictment Was dismissed and, therefore, no damage could have resulted from that protest.</p> <p>Dowling and Page, JJ., dissent.</p>

Appeal by the plaintiffs, William J. Ehrich and others, 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 15th day of November, 1918, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case.

Appeal by the defendant, Harry Gordon, from a judgment of the Court of General Sessions of the Peace, in and for the county of New York, rendered on the 9th day of June, 1919, convicting him of the crime of receiving stolen property, knowing the same to have been stolen, in violation of section 1308 of the Penal Law.

Appeal by the plaintiff, Alfred C„ Gaunt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of November, 1920, denying plaintiff’s motion for an injunction restraining the prosecution of actions brought in foreign jurisdictions.

Appeal by the plaintiff, Sigmund Krauter, 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, sustaining defendant’s demurrer to plaintiff’s second amended complaint and ordering final judgment to be entered dismissing said complaint, and also from the judgment entered thereon in said clerk’s office on the 1st day of September, 1920.

Appeal by the plaintiff, William Avedon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1920, granting defendant’s motion for judgment on the pleadings and dismissing the complaint.

Appeal in each of the above-entitled actions by the plaintiff, Archibald Palmer, as trustee, from a judgment of the Supreme Court in favor of the defendants therein, entered in the office of the clerk of the county of New York on the 7th day of April, 1919, upon the verdict of a jury, and also from orders entered in each of the above-entitled actions in said clerk’s office on the same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, The H. W. Gossard Company, Inc., and another, from an order of the Supreme Conreinado at the New York Trial Term and entered in. tireoffice of the clerk of the county of New York on the 8th day of June, 1920, granting plaintiff’s motion to set hde the verdict and ordering a new trial.

Appeal by the plaintiffs, Abraham Glanzer and another, from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 9th day of July, 1920, reversing a judgment of the City Court of the City of New York in favor of the plaintiffs, and directing judgment dismissing the complaint.

<p>Negligence — injury to unborn child through fall of mother caused by negligence of defendant in maintaining coal hole in sidewalk — right of child to maintain action at common law.</p> <p>A child may maintain an action at common law for injuries sustained eleven days before birth from a fall of the mother alleged to have been caused by the negligence of the defendant in permitting a coal hole in the sidewalk in front of his premises to become and remain in a dangerous condition.</p> <p>Clarke, P. J., and Page, J., dissent, with opinion.</p>

<p>Crimes — manslaughter, first degree — death caused by abortion committed by defendant — evidence establishing prima facie case — burden of proof as to necessity of operation to preserve life — answer to hypothetical question — refusal to charge as to direct evidence of defendant’s intention at time of operation and as to evidence by defendant’s associate — newspaper statement of offer of bribe to juror — fair and impartial trial.</p> <p>The defendant was indicted and convicted of the crime of manslaughter in the first degree for causing the death of a woman by committing an abortion upon her which was not necessary to preserve her life. Held, that when the People rested their ease they not only had established a prima facie case against the defendant but had also assumed the unnecessary burden of showing that the operation performed upon the deceased woman was not essential to preserve her life, though that burden was really upon the defendant.</p> <p>It was not error to refuse to strike out the words “ following an abortion ” in the answer of a physician to a hypothetical question wherein he stated that the cause of death was “Acute suppurative peritonitis following necrotic endometritis following an abortion.” for the answer fairly embodies a medical opinion upon the assumed facts, and furthermore it was conceded that death was due to peritonitis following .an abortion.</p> <p>It was not error to refuse to charge, at defendant’s request, that “ In this case there is no direct evidence save that of the defendant as to what the defendant’s intention was at the time he performed the curettage,” for there were many circumstances in evidence which bore strongly upon the intention of the defendant to commit the crime charged and which the jury properly might consider in finding intent.</p> <p>It was not error for the court to refuse to charge, at defendant’s request, that if they believed that the occurrence on the day when the alleged abortion took place was as recited by defendant’s associate, it was their duty to acquit, since the defendant’s associate was not in the defendant’s office at the time of the operation and if said associate’s testimony was entirely correct the jury nevertheless may have believed that the defendant staged the situation in order to protect himself from any serious consequences which might flow from his act. And, moreover, there was abundant evidence and there were many circumstances established which would permit the jury to find the defendant guilty.</p> <p>The examination of one of the jurors, not in the presence of the other jurors, as to his connection with a bribe which a newspaper stated had been offered on behalf of the defendant, and the subsequent reading of the examination to the other jurors and the examination in open court of each juror individually as to whether he would render a fair and impartial verdict in the case and would absolutely disregard any outside considerations, was not prejudicial to the defendant, since the procedure followed was outlined by the defendant’s counsel and acquiesced in by him.</p> <p>On all the evidence, held, that the defendant had a fair and impartial trial and that the judgment of conviction should be affirmed.</p>

<p>Appeal by the defendant, Charles Slavik, 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 23d day of April, 1920, upon the verdict of a jury for $1,000.</p>

<p>Principal and agent — action for commission on contracts for construction of oil tankers — verdict in favor of plaintiff contrary to evidence.</p> <p>In an action to recover commissions which the plaintiff alleged the defendant agreed to pay on orders procured by the defendant from a third person for the construction of oil tankers, the evidence examined, and held, that the contracts in question were not obtained through the plaintiff’s efforts nor were they obtained from the said third person and that the verdict in favor of the plaintiff was contrary to the evidence.</p>

Appeal by the plaintiffs, Alexander Spitzer and another, from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 13th day of May, 1920, reversing a judgment of the Municipal Court of the City of New York; Borough of Manhattan, Ninth District, in favor of the plaintiffs, and dismissing the complaint.

Appeal by the plaintiff, George H. Fraser, 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 10th day of December, 1919, upon the decision of the court rendered after a trial at the Kings Trial Term, the jury having been withdrawn and discharged upon consent of the parties.

Appeal by the defendants, Morris Cukor and others, from an order of the Supreme Court, made at the Kings Special Term and entered -in the office of the clerk of the county of Kings on the 13th day of July, 1920, granting petitioner’s motion for a peremptory writ of mandamus, commanding said civil service commission to certify the name of the petitioner on the payroll of the Municipal Court of the City of New York, Seventh District, Borough of Brooklyn, for the month of…

Appeals by the plaintiff, The Farmers’ Loan and Trust Company, as trustee, and by the defendants, Mary A. Barnard Wagstaff and others, from an order of the Supreme Court, made at the Nassau Trial Term and entered in the office of the clerk of the county of Nassau on the 14th day of November, 1919, denying a motion on behalf of certain defendants to set aside the verdict of the jury and for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas J. Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 30th day of August,. 1919, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.

<p>Trusts — tiust deed of New York property executed m 1909 to pay income and profits with remainder over on death of beneficiary to trustee or in case of his death to persons designated by him or to his heirs — agreement entered into in 19C5 by parties not effective to change terms of trust — same rtie applicable to similar trust deed of New Jersey property — í?rm “ heirs at law ” according to statutes of New York as wards of purchase constituting heirs contingent remaindermen.</p> <p>A deed of trust execute^ in 1900 by a wife to her husband to collect the rents and profits anff pay the same to their daughter during her life, with remainder, upon Aer death, to the husband if then alive and if he was not then alive J¡o those whom he might designate in his will, or in default of such dr ''p- lion to the person or persons who at that time shall be bis heir or ,-üeírs at law according to the statutes of this State then in force, per stirpes, was not affected by an agreement entered into in 1905 between foe several parties whereby it was attempted to change the terms o^lie trust by providing that it should terminate upon the death of the /husband if the wife, from whom he was divorced, “ shall have remar?ied. or be not then living,” and on the termination the principal shouljá gc to the daughter if living, or if she be then dead to her issue surrtying, or in event that neither the daughter nor her issue he living the¿ to the husband or in case of his death to the persons designated in hi| will or in default of designation to his heirs and legal representatives, thp conditions did not exist which authorized the termination of the íust under section 83 of the Real Property Law of 1896.</p> <p>*ile chat part of the trust agreement, which was created by a similar deed of New Jersey property, might be terminated by the agreement of all the parties in interest, under the rule at common law, which it will be presumed is the same as the New Jersey law, still this could be done only by an agreement of all the parties who had an indefeasible title to the entire estate, and, therefore, as the interest of the husband in the remainder was defeasible upon his death before the death of the daughter, the conditions did not exist authorizing a termination of the trust agreement.</p> <p>The words in the trust agreement conveying the New Jersey property limiting the estate to the husband and in case of a failure of designation to Ms “ heir or heirs at law according to the statutes of the State of New York then in force, per stirpes,” are words of purchase and not of limitation, and they created a contingent remainder in such persons as should be the heirs of the husband.</p>

Appeal by the defendant, Robert P. Brindell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of December, 1920, denying defendant’s motion for a change of the place of trial from the county of New York to some other county in the State of New York.

Appeal by the defendant, American 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 1st day of May, 1920, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 18th day of May, 1920, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Thomas H. Hall 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 8th day of September, 1920, denying plaintiffs’ motion for a bill of particulars.

Appeal by the petitioner, Job E. Hedges, as receiver, 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 June, 1920, denying his motion for a peremptory writ of mandamus.

Appeal by the defendant, Dominick Dileo, from a judgment of the County Court of the county of Oneida, entered in the office of the clerk of said county on the 26th day of May, 1920, affirming a judgment of the City Court of the city of Utica, convicting the defendant of violating section 45 of the General City Law.

Cross-appeals by Lillian DePuy, as substituted trustee, and Asher P. Whipple, as special guardian, and another, from parts of a decree of the Surrogate’s Court of the county of Monroe, entered in the office of said Surrogate’s Court on the 19th day of May, 1919, judicially settling the account of the proceedings of said trustee.

<p>Taxation — board of supervisors of Oneida county acquired title in fee to lands purchased by them at county tax sale — special tax law applicable to Oneida county not repealed by General Tax Law — said property exempt from city taxes — sale for city taxes passes no title — purchaser from county entitled to have city tax sale deed set aside.</p> <p>The board of supervisors of Oneida county acquired title in fee under chapter 559 of the Laws of 1902 to the land in question which was purchased by them at a county tax sale and later deeded to them by the county treasurer.</p> <p>Said property was thereafter, by virtue of said statute, exempt from all city taxes assessed against it by the city of Utica.</p> <p>Said statute was not repealed by the General Tax Law enacted in 1909 either directly or by implication.</p> <p>The tax deed of the defendant, executed by the city treasurer of Utica under a sale for the collection of taxes so improperly levied after the county had acquired title, is void and passed no title, and this action to set aside the deed was properly and seasonably brought under section 132 of the General Tax Law.</p> <p>The said tax deed from the city to the defendant conveyed no title and being a cloud on plaintiff’s- title, acquired from the county, was properly set aside and canceled.</p>

Appeal by the plaintiff, Leroy Sargent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 7th day of Juné, 1920, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, Helen L. Rudell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 26th day of March, 1920, upon the decision of the court rendered after a trial at the Westchester Special Term setting aside two certain deeds by plaintiff to defendant of real property in the village and town of Rye in said county.

<p>Appeal by Charles A. Dall and others, as executors, from an order of the Surrogate’s Court of Kings county, entered in the office of the clerk of said court on the 18th day of May, 1920, which resettled an order of that court made on the 6th day of May, 1920, denying a motion to dismiss the proceeding, which was for an accounting by the executors of the will of William B. Dall, deceased, upon the ground that that court did not have jurisdiction of the subject-matter.</p>

<p>Appeal by the defendant, Pettebone-Cataract Paper Company, in the first action, and by the defendant, Cataract City Milling Company, in the second action, from orders of the Supreme Court, entered in the office of the clerk of the county of Niagara on the 21st day of October, 1920, denying defendants’ motions for orders directing that the proposed findings of fact and conclusions of law annexed to said motions be acted upon by Mr. Justice Wheeler, and that when so acted upon the same be made a part of the record in the actions.</p>

Appeal by the defendant, John H. Meyer, from a judgment of a Court of Special Sessions of the City of New York, Borough of Brooklyn, Traffic Court, entered in the office of the clerk of said court on the 22d day of December, 1920, convicting him of operating a motor vehicle without a license.

<p>Crimea — trial — instruction that defendant’s good character cannot be considered to raise reasonable doubt erroneous — exception not necessary — evidence — proceedings against defendant in another prosecution not admissible ■—• striking out testimony on cross-examination by defendant because defendant refused to give up minutes of other prosecution on which examination based erroneous.</p> <p>It is error for the court to charge, in a criminal prosecution, that the jury must be in doubt as to the defendant’s guilt on the evidence, other than that of good character of the defendant, before evidence of good character can be considered by it.</p> <p>No exception was necessary in order to raise said error on appeal. Proceedings against the defendant on another charge before another court were not admissible, and such evidence was not made admissible by the defendant’s cross-examination of the complaining witness, eliciting a negative only, for that proved nothing.</p> <p>It was error for the court to strike out testimony elicited on cross-examination by the defendant for the purpose of showing that the crime was committed in another county, on the ground that the defendant’s counsel refused to give up the minutes of said other proceedings on which he was basing his cross-examination.</p>

<p>Partition — direction for sale free from leases of mineral rights — provision in judgment for dower interest — covenant in assignment of lease of mineral rights not to exercise option of purchase without written consent of assignors — when answer in partition need not be served on another defendant — when defendant not entitled to notice of appeal — right of tenant in common to convey — payment into court not necessary in order to exercise option by lessee to purchase — motion for leave to pay tender into court and to amend answer.</p> <p>In an action for partition, held, that under the circumstances a sale and distribution of the proceeds of mineral rights reserved in a farm should be made subject to certain leases of such rights, and that the lessees should not be compelled to lose the expensive improvements which they have placed upon the property.</p> <p>A dower interest, until it is admeasured, is deemed a chose in action rather than an interest in the land itself, and can be cared for in a judgment of partition.</p> <p>A covenant in an assignment by one of the lessees of the said mineral rights that the assignee would not surrender the leases or exercise an option of purchase contained therein without the written consent of the assignors did not preclude the assignee from exercising the option without the consent of the assignors, as against the heirs to the property, especially where the assignors are parties to the action and upon the trial thereof offered to pay the balance of the purchase price.</p> <p>An answer in partition need not be served upon another defendant unless it controverts the title or interest of that defendant “ as stated in the complaint.”</p> <p>A defendant who is not interested enough in an action to appear cannot object if a judgment in his favor is reviewed without notice to him.</p> <p>One tenant in common can only convey such rights as he has and his grantee is confined to such rights. A tenant in common cannot sell his interest in the entire property and avoid the conveyance.</p> <p>In the aforesaid action, it was error for the trial court to determine that the option of one of the lessees to purchase was not exercised because of its failure to pay the money into court, and its motion for leave to pay its tender into court and to amend its answer should have been granted.</p> <p>The tender of the payment was simply the act of a party indicating its acceptance of an option and an attempt by it to perform its conditions, and, therefore, no payment of the money into court was necessary and the provisions of the Code of Civil Procedure relating to tender have no application.</p>

Appeal by the plaintiff, Nellie C. Doty, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 22d day of January, 1920, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

<p>Sales — duty of agent of seller to state quality of things to be sold — when such statement constitutes warranty — breach of warranty in sale of pigs in locality where hog cholera- was prevalent — statement by agent of seller that pigs were free from cholera.</p> <p>An agent of the seller owes the duty to Ms principal truly to state the qualities of the tMngs to be sold and present them in as attractive a way as the circumstances permit. But when he makes an affirmation of fact relating to them, if the tendency of it is to induce a purchase, the statement is a warranty.</p> <p>In an action for the breach of a warranty in the sale of pigs in a locality where hog cholera was prevalent to the knowledge of the defendant, a statement by the defendant’s superintendent, who had been authorized to sell the pigs, that they were all right and free from hog cholera, must be presumed to have been made with the authority of his principal.</p>

Appeal by the plaintiff, Miles Hayes, from a judgment of the Supreme Court in his favor for six cents damages and costs, entered in the office of the clerk of the county of Albany on the 14th day of January, 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 same day, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Jay E. Ashton and another, from an award of the State Industrial Commission, entered in the office of said Commission at Albany on the 9th day of March, 1920, and, as stated in the notice of appeal, from the findings of fact, rulings of law, and decision.

Appeal by the defendants, John W. Gibson and another, from a decision and award of the State Industrial Commission, made on the 26th day of February, 1920, and also from an award and decision of said Commission made on the 27th day of May, 1920.

Appeal by the plaintiff, John H. Coyne, as sole surviving executor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of March, 1920, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits, and also, as stated in the notice of appeal, from an intermediate order of the court made at the trial on the 4th day of…

<p>Appeal by the Attorney-General of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of September, 192(3, granting an amendment nunc pro tunc of a certificate of incorporation of The Horace Keane Aeroplanes, Inc., a stock corporation.</p>

<p>Libel — verdict for substantial damages — when proper — when reduced — evidence.</p>

<p>Appeal from an order of the Supreme Court, entered in the Bronx county clerk’s office July 31, 1920, denying the defendant’s motion for a bill of particulars.</p>

<p>Trial — requests to charge — prejudicial error.</p>

<p>Trial — verdict in excess of demand — when sustained by amendment of pleading.</p>

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

Appeal by the plaintiff from an order of the Supreme Court, entered in the New York county clerk’s office October 9, 1920, denying its motion for a mandatory injunction directing the removal of certain obstructions in front of the premises occupied by the plaintiff. Order affirmed, with ten dollars costs and disbursements.

Appeal by the defendants from an order of the Supreme Court, made at Special Term and entered in the office of the clerk of the county of Kings on the 4th day of September, 1920, granting plaintiff’s motion for judgment on the pleadings, with leave to the defendants to answer the complaint within twenty days after the service of a copy of the order with notice of entry, and payment of ten dollars costs.

<p>Husband and wife — action for separation — insufficient evidence.</p>

<p>Appeal from an award of the State Industrial Commission, made January 29, 1920, and entered in the office of said Commission.</p> <p>Award affirmed.</p>

<p>Workmen’s Compensation Law — injury arising out of and in course of employment — use of employer’s automobile by employee.</p>

<p>Workmen’s Compensation Law — hernia — injury arising out of improper use of truss.</p>

<p>Appeal from an award of the State Industrial Commission, entered in the office of said Commission March 29, 1920.</p> <p>Award affirmed.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Tioga county clerk’s office March 17, 1920, upon the verdict of a jury for $1,500, and also from an order entered March 22, 1920, denying the defendant’s motion for a new trial.</p> <p>Judgment and order affirmed, with costs.</p>

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the Schenectady county clerk’s office February 19, 1920, upon the verdict of a jury for $10,000, and also from an order entered February 18, 1920, denying defendant’s motion to set aside the verdict and for a new trial.</p> <p>Judgment and order unanimously affirmed, with costs, on the opinion of Whitmyer, J., at Trial Term.</p>

<p>Appeal — motion for permission to appeal to Court of Appeals — when denied.</p>

<p>Appeal — judgment entered on decision of Appellate Division to conform, thereto — power of Special Term to amend judgment by directing dismissal of counterclaim without prejudice.</p>

<p>Appeal from an order of the Supreme Court, made at the Herkimer Trial Term and entered in the Herkimer county clerk’s office on the 26th day of November, 1919.</p>

<p>Courts — Court of Claims — claim for damages — when allowed in part and disallowed —findings ■—judgment.</p>

<p>Pleading — complaint — sufficiency.</p>