Volume 195 — New York Appellate Division Reports

Appeal by the defendant, Brooklyn Borough Gas Company, 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 27th day of September, 1920, granting an injunction pendente lite. Defendant manufactures and sells gas in the thirty-first ward of the borough of Brooklyn.

Appeal by the plaintiff, James E. Harrity, 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 28th day of October, 1920, granting defendants’ motion for judgment on the pleadings.

Appeal by the plaintiff, Henry R Asserson, 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 February, 1919, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the 11th day of February, 1919, denying a motion to set aside the dismissal of the complaint and for a new trial made upon the…

Appeal by the plaintiff, Tina Teplitz, 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 22d day of October, 1920, overruling plaintiff’s demurrer to the separate defenses contained in defendants’ answer.

Appeal by the defendants, Hattie Rosenfeld 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 Bronx on the 6th day of December, 1919, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 19th day of December, 1919, denying said defendants’ motions to set aside the verdict and for a new trial in an action against defendants as owners of an apartment…

<p>Contempt — refusal of witness to testify before referee appointed to take deposition— order of reference granted before summons served.</p> <p>A-witness is not guilty of contempt by refusing to testify before a referee appointed to take Ms deposition where the order of reference was granted and the refusal to testify took place before the complaint was verified and the summons served, for at the time of said refusal an action was not pending witMn the meaning of section 753 of the Judiciary Law.</p>

<p>Appeal by the relator, Hazelwood Oil Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 22d day of September, 1920, confirming the report of the referee in certiorari proceedings to review the action of the assessors of the town of Allegany, and also from a final judgment entered in said clerk’s office on the same day, confirming the assessments and dismissing the petitions for the writs of certiorari.</p>

Appeal by the contestants, Julia Lawler Lambe and others, from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said surrogate on the 26th day of November, 1919, admitting to probate the alleged last will and testament of Edward Lawler, deceased, and the codicil thereto, after a trial before a jury, and also from an order entered in said surrogate’s office on the 29th day of November, 1919, denying contestants’ motion to set aside the…

<p>Appeal by the contestants, Delia .Gratton and others, from an order of the Supreme Court, made at the Clinton Trial Term and entered in the office of the clerk of the county of Clinton on the 9th day of June, 1919, denying contestants’ motion to set aside the verdict of a jury, and also from a decree of the Surrogate’s Court of the county of Clinton, entered in said surrogate’s office on the 3d day of July, 1919, admitting the will of John Gratton, deceased, to probate.</p>

Appeal by the defendant, 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 Chenango on the 11th day of November, 1919, upon the decision of the court rendered after a trial at the Chenango Trial and Special Term, a jury having been waived.

<p>Workmen’s Compensation Law — evidence insufficient to establish contract of employment.</p> <p>In a proceeding before the State Industrial Commission for the death of claimant’s husband who was killed while at work in cutting timber, held, on all the evidence, that he was not an employee of the alleged employer, a corporation, at the time of his death.</p> <p>The jurisdictional fact of a contract of employment must be established by due process of law; by evidence which would be required to establish any other contractual relation. A mere scintilla of evidence is not sufficient.</p>

Appeal by the defendants, Reis & Donovan, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 21st day of November, 1919, and also from an award of said Commission entered in the office thereof on the 10th day of May, 1920.

<p>Landlord and tenant — summary proceedings — lack of jurisdiction because proceedings are not authorized cannot be raised for first time on appeal — proceedings to dispossess tenant for non-payment of rent and failure to perform covenants of lease — notice to tenant—• violations of lease before plaintiff acquired property — knowledge by plaintiff of violation — right of court to deny dispossession and fix compensation where violations not willful.</p> <p>The objection that the court did not acquire jurisdiction of summary proceedings brought to recover the possession of real property for non-payment of rent and violations of the covenants of the lease, because the proceedings were not authorized under section 2231 of the Code of Civil Procedure, cannot be raised for the first time on appeal.</p> <p>The proceedings having been brought to recover possession of real property and not to recover the rent, after default in the payment of rent and failure to perform the covenants of the lease, and after the service of the three days’ notice, they were maintainable under section 2231 of the Code of Civil Procedure, and the fact that the landlord gave the tenant twenty-one days’ notice should not vitiate the notice.</p> <p>A landlord and tenant may agree as to what shall constitute a breach of the covenants of the lease, and a breach of the covenants is available to the landlord in summary proceedings instituted under said section.</p> <p>The fact that some of the acts of commission and omission which constitute a breach of the lease were committed before the plaintiff acquired the property, and the further fact that the plaintiff knew of such changes in the electrical equipment of the building but did not know the effect thereof until notified by the board of fire underwriters, does not constitute a defense to the proceeding. Especially is this true since the tenant neglected and refused to comply with the request of the landlord to put the electrical equipment and other things affecting the fire risk in the condition they were before the changes were made.</p> <p>The proceeding being one for the recovery of possession of real property the court does not have the power to refuse to grant a warrant of dispossession on the ground that the violations of the lease were not willful and that, therefore, compensatory damages only ought to be awarded.</p>

<p>Ejectment — proceedings based on deed alleged to have been executed by defendants to plaintiff’s grantor — evidence required to overcome presumption of execution arising from certificate of acknowledgment — case properly submitted to jury.</p> <p>In an action in ejectment based on a deed alleged to have been executed by defendants to the plaintiff’s grantor which bore a proper certificate of acknowledgment of the execution of the deed by the defendants with their marks, the defense interposed was that the defendants never executed the'deed in question.</p> <p>Held, that the certificate of acknowledgment to a deed is prima facie proof only of its due and proper execution and as such takes the case to the jury.</p> <p>On the evidence introduced the case was properly submitted to the jury and there was more than a bare preponderance of evidence, supported by uninterested witnesses, and it was for the jury to decide, having seen the parties and .the witnesses and their manner of testifying, whether the proof as submitted was so clear and convincing as to amount to a moral certainty that the deed in question was not executed by the defendants.</p>

Appeal by the plaintiff, Oscar Warner, as administrator, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Fulton on the 17th day of December, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles W. Stone, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 25th day of February, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of February, 1920, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Holbrook, Cabot & Rollins Corporation, from a decision and award of the State Industrial Commission made on the 12th day of May, 1920.</p>

Appeal by the defendants, Robert Van Benthuysen Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 29th day of March, 1920.

Appeal by the plaintiff, Morris Asinof & Sons, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of October, 1919, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, A. Stroud Haxton, 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, denying his motion to strike from the complaint an allegation with respect to his residence and citizenship.

Appeal by the defendant, Blanche Realty 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 March, 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 for a new trial made upon the minutes.

Appeal by the defendants, Charles G. Feser 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 12th day of June, 1920, sustaining a writ of habeas corpus and awarding the custody of Louise Phillips, otherwise known as Marie Feser, who is five years of age, to the relator, and declaring null and void an order of the Surrogate’s Court of Bronx county permitting the respondents to…

Appeal by the plaintiff, Mary F. Roberts, 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 17th day of November, 1919, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 23d day of October, 1919, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, Nora Culhane-, as administratrix, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1920, sustaining defendant’s demurrer to the complaint, and also from the judgment entered thereon on the 26th day of April, 1920, dismissing the complaint.

Appeal by the defendant, National Motor Car and Vehicle 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 30th day of November, 1920, in so far as the same denies the defendant’s motion for a bill of particulars with respect to matters specified in five subdivisions of the notice of motion.

Appeal by the defendant, G. Hinman Barrett, individually and as property 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 8th day of July, 1920, granting plaintiffs motion for judgment on the pleadings consisting of the complaint and a demurrer thereto for insufficiency and denying his counter-motion for judgment on the pleadings.

Appeal by the plaintiff, John S. Kedrovsky, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 24th day of March, 1920, denying plaintiff’s motion to resettle the order entered herein on the 18th day of March, 1920.

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

Appeal in the first action by the defendant, Blake-Daniels Co., Inc., 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 8th day of March, 1920, as overrules its demurrer to the complaint and denies its motion for judgment dismissing the complaint.

Appeal by the plaintiff, John T. Hendricks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of March, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of December, 1919, denying plaintiff’s motion for a new trial made upon the minutes. L

Appeal by the defendant, The Home Insurance Company of New York, from a determination and order of the Appel late Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 18th day of October, 1920, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the plaintiff.

Appeal by the plaintiff, George P. Breckenridge, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of July, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, A. 0. Andersen & 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 20th day of December, 1920, granting plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, Homer D. Biery Lumber Company, appearing specially herein for. the sole purpose of moving to set aside the service of the summons arid complaint herein, from an order of the Supreme Court, made at the Bongs Special Term and entered in the office of the clerk of the county of Kings on the 20th day of October, 1920, denying defendant’s motion to set aside the service of the summons and complaint.

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

Appeal by the defendant, Edith Helena, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 10th day of January, 1920, upon the decision of the court rendered after a trial at the Putnam Special Term.

<p>Appeal by the defendants, Jacob A. Cantor and others, as commissioners, 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, directing that the assessment on 261-267 Amsterdam avenue, block No. 1144, lot No. 1, for the year 1918, of $1,000,000, be reduced to and confirmed at the sum of $975,000.</p>

Appeal by the defendants, Jacob A. Cantor and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of May, 1920, reducing the assessment on lot No. 17, block 1931, section 7, on the assessment roll of the borough of Manhattan for the year 1918 from the sum of $435,000 to the sum of $233,000.

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

<p>Appeal by the plaintiffs, George E. Turnure and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 28th day of February, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of March, 1920, denying plaintiffs’ motion to set aside the verdict and for a new trial made upon the minutes.</p>

Appeal by the defendants, James A. Dunne and another, 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 30th day of December, 1920, directing the issuance of an alternative writ of prohibition restraining the said Municipal Court justice from transferring the trial of an action pending in the Municipal Court of the City of New York, borough of Brooklyn, Fourth District, to the borough of…

Appeal by the defendant, Edward J. Kelly, 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 22d day of May, 1920, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the defendant, The City of Yonkers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of May, 1920, upon the decision of the court rendered after a trial at the Westchester Special Term in an equity suit to set aside and cancel as a cloud on title certain assessments upon plaintiff’s property.

<p>Corporations — power of majority of directors, acting separately and not collectively, to bind corporation to executory contract — acts of all directors who own all stock bind corporation though they act separately and not collectively —■ measure of damages for breach of executory contract of employment — claim for money expended cannot be included — appeal — question not presented by record cannot be considered.</p> <p>In an action to recover for breach of an executory contract of employment it appeared that the defendant corporations were owned by five 'members of a family and that all the stockholders were directors; that three of the directors acting individually signed a paper, as directors and stockholders, agreeing to hire the plaintiffs for one year at a stated salary and agreed to vote to confirm such appointment at the annual meeting of stockholders; that it was a disputed question on the trial whether the other two directors and stockholders agreed to or ratified the paper so signed. The trial court directed a verdict for the plaintiffs and denied defendants’ request to go to the jury on the issues whether a contract was made, whether the plaintiffs had performed, and upon the amount of damages.</p> <p>Held, that while the president of a corporation, acting as such, has the power, prima facie, to bind it by any contract that the board of directors could authorize or ratify, still an employment of the plaintiffs by the president of the defendant companies cannot be spelled out of a writing which in expressed terms is a consent as a director and stockholder to their employment, with a promise to -vote to confirm the same at the next stockholders’ meeting.</p> <p>A majority of the directors acting separately and not collectively at a meeting cannot bind the corporation by an executory contract, and, therefore, the judgment on a directed verdict cannot be sustained.</p> <p>The complaint should not be dismissed, however, but a new trial should be granted, for where the directors of a corporation own all the capital stock and are members of the same family but so at variance that directors’ and stockholders’ meetings are not held, their action, concurred in by all, although separately and not as a body, binds the corporation.</p> <p>The measure of damages for a breach of an executory contract of employment is not the full amount agreed to be paid for the unrendered services, but is compensation resulting from the breach, and that question should have been submitted to the jury. .</p> <p>It was error to include in the directed verdict the amount of the claim by the plaintiffs for money expended by them for the use of the defendants, since that was a cause of action distinct from that set forth in the complaint.</p> <p>The claim of the plaintiffs that the judgment should be affirmed because the defense was not authorized by the corporations cannot be considered, for upon the record the defendant corporations are regularly before the court and the only question presented is the validity of the judgment entered on the directed verdict.</p>

<p>Appeal by the defendant, Louis H. Green, 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 3d day of June, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Reargument of an appeal by the defendant, Richmond Light and Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of April, 1920, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 3d day of May, 1920, denying defendant’s motion for a new trial madte upon the minutes. (See 194 App. Div. 972.)

Appeal by J. Aron & Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, on the 21st day of December, 1920, granting the petition of Anastasios D. Yeannakopoulos, directing an arbitration and appointing an arbitrator under the arbitration clause in the contract between the parties, pursuant to the provisions of the Arbitration Law of this State (Consol.

Appeal by the plaintiff, Ella M. Boyle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 2d day of July, 1918, upon the decision of the court rendered after a trial at the Albany Trial Term without a jury, and as stated in the notice of appeal the appellant intends to bring up for review the decision and order of the court directing the entry of said judgment.

Appeal by the plaintiff, George A. Rice, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 13th day of December, 1919, overruling plaintiff’s demurrer to the affirmative defense set forth in the answer.

Cross-appeals by the parties, Susan Thompson and The Fort Miller Pulp and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 7th day of April, 1920, upon the decision of the court rendered after a trial without a jury at a Trial Term of the Supreme Court.

Appeal by the relator, Durham Realty Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of December, 1920, denying relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the defendant, Crucible Steel Company of America, from a decision and award of the .State Industrial Commission, made on the 10th day of December, 1919.-</p>

<p>Appeal by the defendant, Chile Exploration Company, from an award of the State Industrial Commission, made on or about the 27th day of February, 1920.</p>

<p>> Appeal by the defendants, Frank H. Bachman and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of November, 1920, denying their motion for an order sustaining their demurrer to the complaint and for judgment on the pleadings.</p> <p>The complaint shows .that the plaintiff is a domestic corporation, duly organized and existing .under the Business Corporations Law; that its certificate of incorporation — designated in the complaint as its charter — was filed in the office of the Secretary of State on the 8th of August, 1919, and a duplicate thereof was filed in the office of the county cüerk of New York county three days thereafter; that its principal office and place of business is at No. 52 Broadway, borough of Manhattan, New York city; that the defendants were and are copartners in business in the city, county and State of New York under the firm name of H. F. Bachman & Co.; that on or about the 17th of March, 1920, plaintiff and defendants entered into an agreement wherein and whereby it was agreed that the plaintiff would open an account with the defendants “ for the purpose of enabling plaintiff to speculate in cotton futures and that defendants would execute plaintiff’s orders to buy and sell cotton futures for the account of plaintiff; ” that thereafter, pursuant to said agreement, plaintiff requested defendants from time to time to sell and buy cotton future contracts and the defendants executed the orders; that pursuant to the agreement and upon the request of the defendants, plaintiff paid to the defendants specified sums of money on different dates commencing with the 5th day of April, 1920, and terminating on the third of August thereafter, aggregating $13,153.03; that the sole powers granted to the plaintiff by the .State of New York are set forth in its certificate of incor- or charter as follows:</p> <p>“ To do a general business as commission merchants, selling gent and factor under del credere commission or otherwise m the manner and to the same extent as natural persons could do.</p> <p>“ To carry on any or all business as manufacturers, producers, merchants, wholesale and retail, importers and exporters, generally without limitation as to class of products and merchandise, and to manufacture, produce, adapt, prepare, buy, sell and otherwise deal in any materials, articles or things required in connection with or incidental to the manufacture, production and dealing in such products.</p> <p>“ To make and enter into all manner and kinds of contracts, agreements and obligations by or with any person or persons, corporation or corporations for the purchasing, acquiring, holding, manufacturing and selling or otherwise dealing in, either as principal or agent, upon commission or otherwise, any and all kinds of goods, articles or personal property, whatsoever, and generally with full power to perform any and all acts connected therewith or arising therefrom, or incidental thereto, and an}?" and all acts proper or necessary for the purpose of the business.</p> <p>“ To carry on and undertake any business, undertaking, transaction or operation commonly carried on or undertaken by merchants, commission men, factors, brokers, importers and exporters and manufacturers’ agents.</p> <p>“ SUBJECT TO THE LIMITATIONS AND RESTRICTIONS IMPOSED BT</p> <p>law:</p> <p>“ To purchase, lease or otherwise acquire and to hold, own, sell or dispose of real and personal property of all kinds, and in particular lands, buildings, business concerns and undertakings, shares of stock, mortgages, bonds, debentures and other securities, merchandise, book debts and claims, trademarks, trade names, patents and patent rights, copyrights and any interest in real or personal property;</p> <p>“ To borrow money for its corporate purposes and to make, accept, endorse, execute and issue promissory notes, bills of exchange, bonds, debentures or other obligations from time to time, for the purchase of property or for any purpose in or about the business of the company, and, if deemed proper, to secure the payment of any such obligations by mortgage, pledge, deed of trust or otherwise;</p> <p>“ To acquire, and take over as a going concern, and thereafter to carry on the business of any person, firm or corporation engaged in any business which this corporation is authorized to carry on, and in connection therewith, to acquire the good will and all or any of the assets and to assume or otherwise provide for all or any of the liabilities of any such business;</p> <p>“ To sell, improve, manage, develop, lease, mortgage, dispose of or otherwise turn to account or deal with all. or any part of the property of the company;</p> <p>“ To carry on business at any place or places within the jurisdiction of the United States, and in any and all foreign countries, and to purchase, hold, mortgage, convey, lease or otherwise dispose of and deal with real and personal property, at any such place or places;</p> <p>“To do all and everything necessary, suitable or proper for the accomplishment of any of the purposes, the attainment of. any of the objects or the furtherance of any of the powers hereinbefore set forth, either alone or in connection with other corporations,'firms or individuals and either as principals or agents, and to do every other act or acts, thing or things, incidental or appurtenant to or growing out of or connected with the aforesaid objects, purposes or powers, or any of them.”</p> <p>It is further alleged that the agreement and the transactions had thereunder were ultra vires and were not authorized by, were contrary to, in direct violation of, and extraneous to the charter of the plaintiff and that this was well known to the defendants and that the plaintiff never received anything of value from the defendants under, said agreement and did not derive any benefit or advantage “ from the aforesaid transactions with defendants.” Judgment is demanded for the sum of $13,153.06, together with interest and costs. The sole ground of the demurrer is that it appears upon the face of the complaint that it does not state facts sufficient to constitute a cause of action and defendants demand judgment dismissing the complaint, with costs.</p>

Appeal by the plaintiff, Frederick J. Kraemer, 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 October, 1920, denying his motion for judgment on the pleadings and granting defendant’s counter motion for judgment sustaining its demurrer to the complaint for insufficiency and dismissing the complaint.

<p>Appeal by the plaintiff, Joseph M. Swenson, 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 10th day of November, 1920, granting defendants’ motion to set aside the verdict and for a new trial made upon the minutes.</p>

<p>Sales — action for breach of contract for sale and manufacture of goods — evidence establishing prima facie case of meeting of minds of parties on complete contract — condition in written contract that goods to be manufactured if material obtainable from mill — oral waiver of condition by seller having knowledge of actual fulfillment of condition — waiver as question for jury.</p> <p>In an action for the breach of an alleged written agreement for the manufacture and sale of goods, evidence held, to establish a prima facie case of the meeting of the minds of the parties on a complete contract.</p> <p>A condition in a written contract for the sale of goods to be manufactured from material which is to be obtained by the seller, to the effect that the goods will be delivered in accordance with the terms of the contract if the material entering into the manufactured product can be procured from the mill, may be waived by parol where the seller knows the condition has been in fact fulfilled.</p> <p>In such case the question whether such condition has been waived or abandoned by the seller, by statements and representations as to ability to perform the contract, is for the determination of the jury.</p>

<p>Appeal by the. defendant, Florence T. Hildebrand, as executrix, 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 20th day of August, 1920, denying said defendant’s motion for judgment on the pleadings dismissing the complaint.</p>

<p>Appeal by the defendant, Florence T. Hildebrand, as executrix, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of August, 1920,-denying her motion for judgment dismissing the counterclaim of Charles E. Nauss, as executor of the estate of Wendolin J. Nauss, deceased.</p>

<p>Workmen’s Compensation Law — duration of disability — finding that claimant still disabled not supported by evidence — burden of proof — presumptions.</p> <p>Evidence examined, and held, that a finding that the claimant received injuries which caused him to be disabled from the 11th of July, 1919, “ to-the 21st day of May, 1920, on which date he was still disabled,” was contrary to the established facts in the case.</p> <p>In the absence of evidence that the disabilities of the claimant persisted after the the 9th day of January, 1920, on which date the physician of the Commission reported, after examination, that the claimant should go to work, that date should be the outside limit of any award.</p> <p>The burden of establishing that the disability did not end with the 9th day of January, 1920, is upon the claimant, and the presumptions provided in section 21 of the Workmen’s Compensation Law have no application.</p> <p>The mere fact that the claimant will not work while waiting for a large allowance does not justify the finding that the disability continues.</p>

Appeal by the defendants, Williams Printing Company and another, from an award, order and decision of the State Industrial Commission, made on the 14th day of November, 1919, allowing the claimant compensation at the rate of eleven dollars and fifty-four cents per week for the period of thirteen weeks, and continuing the case.

Appeal by Rosetta Kimball, individually and as executrix, etc., and another, from a decree of the Surrogate’s Court of the county of Broome, entered in the office of said surrogate on the 2d day of July, 1920, denying probate to a codicil made by John Bossom, deceased, to his last will and testament, after a trial by a jury of controverted questions of fact raised by objections to the probate of said codicil, and also from an order entered in said surrogate’s office on the…

Appeal by the plaintiff, Max Levine, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Columbia on the 4th day of August, 1919, upon the decision of the court, rendered after a trial without a jury, dismissing the complaint.

<p>Appeal by the defendant, The- Board of Education of Penn Yan, N. Y., from a decision and award of the State Industrial Commission, made on the 20th day of July, 1920.</p>

Appeal by the defendants, Sherman-Stalter Company and another, from a decision and award of the State Industrial Commission, made on or about the 20th day of June, 1919, and also from an award of said Commission made on or about the 19th day of January, 1920.

Appeal by the plaintiff, Allied Silk Manufacturers, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of March, 1919, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 21st day of March, 1919, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, Municipal Mortgage 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 the county of New York on the 21st day of December, 1920, referring the issue with respect to the service of the summons and complaint on the defendant Dodge Publishing Company and appointing a referee to take proof and report.

<p>Appeal by the plaintiff, Esther Posner, 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 17th day of June, 1920, upon the dismissal of the complaint by direction of the court at the close of the entire case.</p>

Appeal by the defendant, Sidney B. Bowman Automobile 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 24th day of February, 1920, upon the verdict of a jury rendered by direction of the court, and dismissing defendant’s counterclaim upon the merits, and also from an order entered in said clerk’s office on the 10th day of May, 1920, denying defendant’s motion for a new trial made upon…

Appeal by John J. Hallenbeck, as executor, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 30th day of June, 1920, affirming an order made by said surrogate and dated February 16, 1920, assessing the transfer tax.

Appeal by the plaintiff, The Equitable Trust Company 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 14th day of May, 1920, overruling the plaintiff’s demurrer to the first defense contained in the answer.

Appeal by the defendant, Joseph Markovits, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of December, 1920, adjudging the defendant in contempt of court and fining him in the sum of $1,000 and $10 costs.

<p>Appeal by the relator, New York, Lackawanna and Western Railway Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 17th day of June, 1920, on the decision of the court rendered after a trial at the Erie Special Term.</p> <p>Judgment affirmed, with costs, upon the opinion of Taylob, J., delivered at Special Term.</p>

Appeal by the defendant, ‘Martha M. Rodgers, 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 December, 1920, granting plaintiff’s motion to sever the action and allow the plaintiff to proceed against certain defendants.

Appeal by the defendant, Rodgers & Hagerty, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of July, 1920, upon the verdict of a jury for $22,500, subsequently reduced to $14,500 on stipulation, and also from an order entered in said clerk’s office on the 22d day of July, 1920, denying defendant’s motion for a new trial made upon the minutes.

<p>Trial — action for partition — right of parties to have issues stated for trial by jury though case noticed for Equity Term — practice in First Judicial District.</p> <p>In an action for the partition of real property of a decedent the parties are entitled of right to have issues tried by a jury, though the case is properly noticed for trial at an Equity Term.</p> <p>Where issues in a partition action in the First Judicial District are ordered to be tried by a jury, a certified copy of the order should be filed with the calendar clerk of the Trial Term, who must put the case on the calendar as provided by rule 5 of the Trial Term rules, and upon the verdict being rendered the same must be certified by the clerk to the court at Special Term.</p> <p>An application may then be made at Special Term, Part III, for an interlocutory judgment and the court may then find the uncontroverted facts, together with the facts found by the jury, and make the conclusions of law thereon, and direct an interlocutory judgment to be entered pursuant to section 1546 of the Code of Civil Procedure.</p> <p>No issue should be stated as to the wills involved in the action since their terms are plain and unambiguous, and the decrees admitting them to probate are conclusive in this action; the legal effect of the wills is for the court to determine and not the jury.</p>

Appeal by the defendant, Stark & Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of September, 1920, granting the plaintiff’s motion for a bill of particulars of the defense of payment.

<p>Appeal by the plaintiff, Davis Brothers Realty Corporation, Inc., in each of the above-entitled actions, from an order and determination of the Appellate Term, entered in the office of the clerk of the county of New York on the 24th day of June, 1920, reversing final orders of the Municipal Court of the City of New York, Borough of Manhattan, First District, dispossessing respondents from 47 Warren street, borough of Manhattan.</p>

<p>Principal and agent — action for damages caused by defendant failing to perform agreement to purchase property from plaintiff’s principal whereby plaintiff lost commissions — necessity for alleging that agreed commissions were reasonable value of plaintiff’s services — measure of damages.</p> <p>In an action to recover damages based on the failure of the defendant to perform his agreement with the plaintiff to purchase coal from plaintiff’s principal whereby the plaintiff lost his commissions which it was agreed were to be paid by the seller and not by the defendant, it is not necessary for the plaintiff to allege that the agreed commissions were the reasonable value of his services.</p> <p>_ The foundation on which the rules for the measure of damages in actions for breach of contract are based is indemnity to the injured party, and in the present ease the measure of damages on the refusal of the defendant to purchase the coal would be the commissions the seller had agreed to pay the plaintiff on the sale, if said commissions were reasonable.</p>

<p>Summary proceedings — prosecution not enjoined where grounds forming basis for injunction are matters of defense — Municipal Court of New York city has jurisdiction though petitioner alleges present ownership merely — independent action not maintainable for discovery.</p> <p>A suit for an injunction to restrain the prosecution of summary proceedings in the Municipal Court of the City of New York, on the ground that the notice terminating the lease was ineffectual and that the landlord waived the notice by accepting rent after the expiration of the notice of termination, is not maintainable, since such matters constitute defenses to the proceedings which may be set forth in the answer thereto.</p> <p>The fact that the petitioner in the summary proceedings alleged in its petition that “ the petitioner is the owner ” instead of alleging that “ it is and was at all times mentioned herein the owner,” did not deprive the court of jurisdiction.</p> <p>This action will not be permitted in order to obtain discovery on the ground that the petitioner in the summary proceedings could not be examined before trial, since section 1914 of the Code of Civil Procedure prohibits an action for discovery in aid of the prosecution or defense of another action.</p>

<p>Appeal by the defendant, George H. McLaughlin, 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 defendant’s motion to make the complaint more definite and certain.</p>

<p>Liens—foreclosure of mechanic’s lien — evidence insufficient to support judgment on theory of quantum meruit — plaintiff has same burden in equity and same rules of evidence apply as in action at law.</p> <p>In an action to foreclose a mechanic’s lien wherein the complaint was framed upon a contract and also upon quantum meruit, the plaintiffs stating at the trial, however, that they did not rely upon a contract, the evidence was insufficient to support a judgment on the theory of quantum meruit, for it did not prove what materials were furnished and the reasonable value thereof, and what labor was performed and its reasonable value.</p> <p>Though the instant case is in equity the plaintiffs must bear the same burden of proving their cause by legal and competent evidence as the plaintiff in any action.</p>

Appeal by the plaintiff, James P. Browne, 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 June, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 8th day of June, 1920, denying plaintiff’s motion for a reargüment of the motion to dismiss the complaint and to set…

Appeal by the defendants, Francis R. Mayer 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 16th day of December, 1920, granting plaintiff’s motion to open his default in serving a bill of particulars.

Certiorari issued out of the Supreme Court and attested November 22,1920, 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 directing the New York Central Railroad Company and the Lehigh Valley Railroad Company to complete a switch between the two railroads in the city of Batavia.

<p>Appeal by the defendant, William H. Davis, from an order of the Supreme Court, made at the Madison Trial and Special Term and entered in the office of the clerk of the county of Madison on the 11th day of May, 1920, allowing plaintiff $150 counsel fee and $30 a month alimony during the pendency of the action.</p>

Appeal by the defendants, Sterling Ceiling and Lathing Company and another, from an award and decision of the State Industrial Commission, entered in the office of said Commission on the 26th day of September, 1919, and also from the award and decision, as modified, entered in the office of said Commission on the 8th day of June, 1920.

Appeal by the defendants, Pabst Brewing Company and another, from a decision and award of the State Industrial Commission, made on or about the 7th day of April, 1920.

<p>Appeal by the defendants, Turin Garage and Supply Company and another, from an award and order of the State Industrial Commission, entered in the New York office of said Commission on the 30th day of April, 1920.</p>

Appeal by the defendants, Patrick Moynehan and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on or about the 9th day of June, 1920.

Appeal by the defendant, Gimbel Brothers, 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 Bronx on the 31st day of January, 1920, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 18th day of February, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Cross-appeals by the plaintiff, Isaac Maurice Jacobs, and by the defendants, Joseph H. Moore 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 10th day of July, 1920, upon the verdict of a jury rendered by direction of the court.

Cross-appeals by the plaintiff, Sallie S. Brown, and the defendant, The Cleveland Trust 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 24th day of November, 1919, upon the decision of the court rendered after a trial at the New York Trial Term, the jury having been discharged by the court at the request and on consent of all the parties.

Appeal by the defendant, Matilda Leerburger, as executrix, etc., from a judgment of' the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of May, 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. 11th day of May, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, Frank F. Pels 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 7th day of February, 1921, denying defendant’s motion to compel plaintiffs to separately state and number the causes of action set forth in the complaint.

<p>Appeal by the defendants, Annie S. Watt 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 16th day of April, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of May, 1920, denying defendants’ motion to set aside the verdict and for a new trial made upon the minutes.</p>

<p>Negligence — action against corporation to recover for injuries received while riding in wagon with its president at his request or invitation —• authority of president to invite plaintiff to ride — duty of defendant toward plaintiff — complaint improperly dismissed.</p> <p>In an action against a corporation and its president to recover for personal injuries received by the plaintiff while riding in a wagon with the president, it appeared that the plaintiff had quit the employ of the corporation a few days before the accident and on the day of the accident returned to get his pay check; that while waiting for his check he was asked by the president, as a favor, to get the company’s horse and wagon and take it to another place; that the plaintiff did as requested and was met by the president and was then told that he might ride back to the office to get his check, and that on the return trip the accident occurred.</p> <p>Held, that after the plaintiff delivered the horse and wagon to the president the latter had clear authority either to invite or permit the plaintiff to ride back to the office to which he was required to return to get his pay cheek. Whether as an invitee or licensee the corporation defendant owed the plaintiff the duty to use reasonable care not to injure him in driving him back to the office from which he started to do an act in behalf of the corporation, and to which he was required to return.</p> <p>The complaint should not have been dismissed at the close of the plaintiff’s case, for while there was a conflict in the evidence given by his own witnesses and he was required to call the president to prove his ease, still, the plaintiff may insist that the story he gave was the true one and ask the jury to agree with him.</p>

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of May, 1920, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the same day denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.</p>

• Appeal by the defendant, Annie Rabinowitz, 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 or about the 24th day of June, 1920, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in favor of the plaintiff.

<p>Appeal by the plaintiffs, Alfred H. Newburger 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 22d day of January, 1920, on the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of January, 1920, denying plaintiffs’ motion for a new trial made upon the minutes.</p>

<p>Descent and distribution — distribution of personal property of married woman dying intestate leaving husband and no descendants controlled by common law — entire estate vests in husband — administration not necessary — bank deposit transferred to husband as administrator passes to his administrator after his death — Decedent Estate Law, § 103, applied.</p> <p>The law of distribution of the personal property of a married woman, who dies intestate leaving her a husband surviving and no descendants, is not controlled by any statute of this State but by the common law, under which her entire personal estate is vested in her husband by virtue of his marital rights.</p> <p>It seems, that where the husband may readily obtain possession of his deceased wife’s personalty, he may do so without the formality of being appointed administrator of her estate.</p> <p>In the instant case the husband, the plaintiff’s intestate, having taken out letters of administration upon the estate, and having obtained possession of the moneys left on deposit with the defendant by having the account changed to read “ Estate of Mary C. Boyhan, dee’d., Wm. J. Boyhan, admr.,” he was, at the time of his death, the absolute owner in possession of the fund, all debts of the wife having been paid, and said fund passed to his administrator to whom the defendant must pay it rather than to an administrator de bonis non of the wife.</p> <p>The form of the deposit does not change the fact of the exclusive ownership in the husband at the time of his death.</p> <p>That the plaintiff is the only proper person to collect the moneys on deposit. ■with the defendant is also evident from section 103 of the Decedent Estate Law which provides that where the husband dies without having taken out letters of administration on his wife’s estate, “ leaving any assets of his wife unadministered, except as otherwise provided by law, they pass to his executors or administrators as part of his personal property, but are liable for her debts in preference to the creditors of the husband.”</p>

Appeal by the defendants, William Young 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 December, 1920, granting relator’s motion for an alternative writ of prohibition.

Appeal by the Boulevard Theatre and Realty Company 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 19th day of July, 1920, setting aside an election of directors pursuant to provisions of section 32 of the General Corporation Law.

Appeal by Producers Mercantile Corporation from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1920, directing the parties to submit to the arbitration of a controversy existing between them and appointing an arbitrator in accordance with sections 2 and 3 of the Arbitration Law (Consol. Laws, chap. 72; Laws of 1920, chap. 275).

Appeal by the defendant, Louis Domb, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1920, granting plaintiff alimony 'pendente lite at the rate of $35 per week and counsel fee of $150.

Appeal by the plaintiff, Franken-Karch 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 2d day of September, 1920, denying plaintiff’s motion for judgment upon the pleadings, consisting of an amended complaint and a demurrer interposed thereto, on the ground that it was insufficient in law.

Appeal by the plaintiff, Charles Reed, from a judgment Of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 10th day of February, 1919, dismissing the complaint on a motion made upon the pleadings at the opening of the trial, on the ground that the same did not state facts sufficient to constitute a cause of action.

Appeal by the plaintiff, Public Service Commission, Second District, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 27th day of May, 1920, upon the decision of the court, rendered after an inquiry at the Albany Special Term into the facts and circumstances as required by section 74 of the Public Service Commissions Law, dismissing plaintiff’s petition upon the merits.

Appeal by the defendants, The City of New York and another, from an order and judgment of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of Bronx on the 24th day of June, 1920, affirming a judgment of the Municipal Court of the City of New York, Borough of The Bronx, Second District, in favor-of the plaintiff.

Appeal by the plaintiff, Isaac Krulewitch, 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 July, 1920, overruling plaintiff’s demurrer to the affirmative defenses contained in the third amended answer.

Appeal by William C. Bowers and others from an order of the Surrogate’s Court of the county of New York, entered in said surrogate’s office on the 19th day of June, 1920, as resettled by an order of said surrogate entered in said surrogate’s office on the 25th day of September, 1920, in so far as said order on appeal from a prior order provides that the property transferred by John M. Bowers by certain trust deeds is subject to a transfer tax.

Appeal by the defendants, Edward J. Glennon 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 31st day of December, 1920, appointing a referee to hear and determine the whole issue.

Appeal by the plaintiff, Mamie Brodsky, 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 28th day of November, 1919, granting the defendant’s motion for judgment upon the pleadings and dismissing the complaint.

Appeal by the plaintiffs, Samuel Slutzkin 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 11th day of January, 1921, appointing a referee to report upon questions of fact arising upon a motion made by the defendant to stay plaintiffs’ prosecution of this action.

Appeal by Samuel O. Ochs, a legatee under the last will and testament of Robert Pluym, deceased, from that part of a decree of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 9th day of June, 1920, which modified the report of the referee in disallowing the claim of the legatee to fifteen per cent of $22,500, which had been approved by the referee, and as stated in the notice of appeal said legatee appeals also upon the facts…

Appeal by William Nelson Cromwell and others from an order of the Surrogate’s Court of the county of New York entered in the office of said surrogate on the 26th day of July, 1920, as resettled by an order entered in said surrogate’s office on ¡the 18tK day of August, 1920, granting the petition of one Henrietta R. Hurlbut, as administratrix of Baroness Althea Salvador, praying for the revivor of a lapsed proceeding alleged to have been commenced in her lifetime by the late…

Appeal by the defendant, National Association Building Corporation, 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 4th day of January, 1921, as denied that part of the appellant’s motion for a verified bill of particulars of plaintiff’s complaint, which sought to obtain the details of the alleged valuable consideration for the option agreement upon which this action is…

Appeal by the plaintiffs, Lionel Hagenaers and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of June, 1920, as overrules their demurrer to the first separate and distinct defense to the first cause of action alleged in the complaint, and the demurrer to the separate and distinct defense to both the first and second causes of action embodied in…

<p>Master and servant — wrongful discharge — when damages limited to recovery of salary earned and unpaid — demurrer properly overruled to count of complaint alleging wrongful discharge without notice — construction of contract to send employee abroad.</p> <p>In an action for damages for a wrongful discharge a count in the complaint which merely alleges a wrongful discharge and that there is due a sum certain for unpaid salary, limits the recovery to the salary earned and unpaid.</p> <p>Where, however, a second count realleges, by reference, the matter set up in the first count, and further alleges damages for the failure to send the plaintiff abroad, in accordance with the terms of the contract, and it appears that the contract might be terminated by either party at the expiration of the first year, by giving thirty days’ notice, and there is still sufficient time to give the notice after the alleged wrongful discharge, the plaintiff would presumptively be entitled to recover as damages the balance of salary for the unexpired year only, and, hence, a demurrer to the count was properly overruled.</p> <p>A contract between a millinery establishment and a designer that the latter should make two trips to Europe in the interest of the establishment, at such times during the life of the contract as it might deem most advantageous to its business, gives rise to no right of action in her favor for more than nominal damages, where such part of the contract is not carried out by the employer.</p> <p>Merrell, J., dissents in part, with opinion.</p>

Appeal by the defendant, Louis B. F. Hofmann, 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 July, 1920, granting plaintiff’s motion for judgment on the pleadings, consisting of the complaint and demurrer thereto, and overruling the demurrer to the complaint.

<p>Appeal by the defendants, A. H. Woods Theatre Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 6th day of October, 1919, and also from a decision and award of said Commission made on the 4th day of June, 1920.</p>

Appeal by the defendants, Cassidy & Dorfman and another, from a decision and award of the State Industrial Commission, made on the 25th day of February, 1920, and also from a decision and award of said Commission made on the 11th day of June, 1920.

<p>Appeal by the defendants, John F. Thompson 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 Otsego on the 13th day of September, 1920, upon the decision of the court rendered after a trial before the court at the Otsego Trial Term, a jury having been waived.</p>

• Appeal, by the defendants, Hotel Pennsylvania and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 22d day of July, 1920. The award was made to the State Treasurer upon the ground that there were no persons surviving entitled to compensation.

<p>Executors and administrators — claims against estate — claim by widow for money loaned to husband — evidence not justifying allowance.</p> <p>The proof by a widow of an alleged 'claim against her husband’s estate for money loaned to him was insufficient to establish the claim, and the action of the surrogate in refusing the allowance thereof was proper.</p> <p>Appeal by Sarah C. Sheive from that part of a decree of the Surrogate’s Court of the county of Chemung, entered in the office of said surrogate on the 21st day of June, 1920, disallowing the claim of the appellant. •</p>

<p>Appeal by the defendant, Irine K. Embury, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 2d day of August, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.</p>

Certiorari issued out of the Supreme Court and attested on the 9th day of November, 1920, directed to Eugene M. Travis, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had in adjusting an account for income taxes for the year 1919 against the relator under article 16 of the Tax Law of the State of New York, added by chapter 627 of the Laws of 1919, as amended,…

Appeal by the defendant, New York Telephone Company, from a judgmeht of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 12th day of January, 1920, upon the decision of the court rendered after a trial at the Warren Trial Term, certain questions of fact having been submitted to a jury, and also from an order entered in said clerk’s office on or about the same day, denying defendant’s motion for a new trial made…

Appeal by the plaintiff, Brescia Construction Company, from a judgment of the Supreme Court dismissing the complaint on the merits, entered in the office of the clerk of the county of Bronx on the 17th day of April, 1920, upon the decision of the court rendered after a trial at the Bronx Special Term, and also, as stated in the notice of appeal, from the decision herein entered in the said clerk’s office on the 31st day of March, 1920.

Appeal by the defendants, Cotswold Comfortable Company and another, from a decision and award of the State Industrial Commission, made on the 19th day of March, 1920, and filed in the Syracuse office of said Commission.

Appeal by the defendant, Sigmund Jonas, from an order of the Supreme Court, made at the Greene Special Term and entered in the office of the clerk of the county of Greene on the 20th day of November, 1920, denying defendant’s motion to change the place of trial from Greene county to the county of New York.

<p>Principal and agent — action to recover commissions for procuring government contract subject to cancellation in whole or in part by government — admissibility of parol evidence — requested instruction improperly refused — parol evidence to establish elements of contract admissible where letter only supplementary to oral contract.</p> <p>Where in an action to recover commissions under an oral agreement to procure government contracts which the government reserved the right to cancel in whole or in part, it appears that the agreement between the plaintiffs and the defendant was confirmed' by a letter from the defendant but that there was no .statement therein as to whether the commissions were to be based on the contract price or on the money received from goods actually delivered to the government, which was the principal issue litigated, it was error for the court to refuse defendant’s offer to prove by parol evidence that the commissions were to be paid, on the goods actually delivered.</p> <p>It was also error to refuse defendant’s request to instruct the jury that the oral testimony offered might be considered in connection with the letter.</p> <p>Where a letter actually on its face purports to be a written agreement, but in fact is only supplementary to an oral contract, parol evidence is admissible to determine what the contract was, since it is not offered to vary a written agreement.</p>

<p>Workmen’s Compensation Law — specific schedule — State Industrial Commission has no power to make award for injury in excess of proportionate loss fixed by medical testimony solely upon deputy’s examination — loss of use of member is question for those having expert knowledge — section 15 construed.</p> <p>In proceedings for compensation for a specific injury the State Industrial Commission may not disregard the medical testimony in the ease as to the proportionate loss sustained and make an award for an amount in excess of such proportionate loss so found merely on the personal examination and statements made by the deputy commissioner.</p> <p>The Workmen’s Compensation Law, section 15, relating to compensation for specific injuries, nowhere delegates to the Commission the power arbitrarily to determine the proportionate loss of the use of a member, and such power cannot be presumed to have been granted, for the constitutional requirement of due process of law contemplates the protection of life, liberty and property of the citizen against the acts of mere arbitrary power in any department of the government.</p> <p>It seems, that proceedings for compensation for the proportionate loss of the use of a member present a question which those having expert knowledge alone can answer.</p> <p>John M. Kellogg, P. J., and H. T. Kellogg, J., dissent, the latter in part.</p>

Appeal by the defendants, Harry Marsch & Co. and another, from an award of the State Industrial Commission, made on the 28th day of February, 1920, affirming an award made on the 31st day of October, 1919.

<p>Appeal by the defendants, The Fred E. Illston Ice Company and another, from an award of the State Industrial Commission made on the 7th day of May, 1920.</p>

<p>Workmen’s Compensation Law— accidental injury — sleeping sickness following blow on head does not result from injury — purpose and theory of Workmen’s Compensation Law.</p> <p>An employee who sustained a blow on his head and subsequently developed sleeping sickness is not entitled to an award for the disease, which is infectious and not the result of trauma, where the finding of the State Industrial Commission that the sleeping sickness was “ caused or activated by the injury received while engaged in the regular course of employment,” is without support in the evidence.</p> <p>The purpose of the Workmen’s Compensation Law, sanctioned by the amendment of the Constitution, was to provide compensation for industrial accidents; for accidents inherent in the modern system of production,- and not for .the pensioning of those who suffer from disease not caused by such accidents.</p> <p>The theory of the Workmen’s Compensation Law is that the accidents of an industry are proper overhead charges, and the effort of the Commission to enlarge the scope of the statute and to impose the burden of infectious disease upon the industrial life of the State ought not to receive the sanction of the court.</p> <p>John M. Kellogg, P. J., and Kiley, J., dissent.</p>

<p>Appeal by the defendant, Henri Gutmann Silks Corporation, from an order of the Supreme Court, made- at the Queens Special Term and entered in the office of the clerk of the county of Queens on the 21st day of February, 1921, denying its motion for an order directing the plaintiff to accept service of a bill of particulars voluntarily furnished by defendant in response to plaintiff’s motion for such bill of particulars, and directing defendant to serve a further bill of particulars.</p>

Appeal by the plaintiff, Adelaide Wall, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 29th day of October, 1919, dismissing the complaint at the close of the plaintiff’s case.

<p>Husband and wife — annulment of marriage — action by wife on ground that she was not of age of legal consent — awarding custody of child to wife — compelling husband to support child — facts showing that husband was guilty parent — Code of Civil Procedure, section 1751, applied.</p> <p>The court has the power, in an action brought by a wife for the annulment of her marriage on the ground that she was not of the age of legal consent, to award to her the custody and care of the issue of the marriage.</p> <p>The defendant was the guilty parent, within the meaning of section 1751 of the Code of Civil Procedure, so that an order compelling him to pay toward the support of the child of the marriage was proper, where it appeared that at the time of the marriage he was over the age of legal consent and that the plaintiff was tinder sixteen years of age and was induced to leave her home without her parents’ consent for the purpose of marriage, and that after living together for several months he abandoned the plaintiff without justification.</p>

<p>Canals —• appropriation of lands by State by entry thereon — Barge Canal Act, section 4, construed — filing of map not condition precedent to making claim for appropriation of property — claim filed sufficient as claim for damages for permanent appropriation —■ destruction of water rights at level long existing amounts to appropriation — measure of damages for appropriation — Court of Claims — limitation of actions — failure to file notice of intention to file claim for trespass or temporary taking of property.</p> <p>The method of appropriating lands for Barge canal purposes by making and filing a map as required by section 4 of the original Barge Canal Act is not exclusive, but the State may appropriate lands by the more summary method of entry and occupation and without notice to the owner.</p> <p>Accordingly, the filing of a map by the State Engineer under said section is not a condition precedent to the making of a claim for appropriation of property.</p> <p>Furthermore, the Enabling Acts giving jurisdiction to the Court of Claims to award compensation for lands appropriated for Barge canal purposes show the intent of the Legislature to deal justly with persons whose lands are appropriated and not to deny payment to persons whose lands have not been appropriated by the map filing method.</p> <p>As the claim'was dismissed because barred by the Statute of Limitations, the claimant is entitled to the most favorable view, and the claim filed and proof presented is sufficient to apprise the State that the nature of the claim sought to be established is one for a permanent appropriation.</p> <p>The destruction of the water rights of the claimant at the level long existing by raising the Oswego river by means of a dam is an appropriation of the property and if property is actually taken by the State for a public use, and the owner is excluded from its possession and loses the rights and benefits to which he was theretofore entitled, then there is an appropriation of the property.</p> <p>Where there is a permanent appropriation of the property, compensation should be made by allowing as damages the market value of the property actually taken, with the consequential damage resulting to the remainder, giving consideration in the latter item to the value, if any, of the increased head of water now available to the claimant.</p> <p>The Statute of Limitations has not run against the claim for the permanent appropriation of lands; but the claim for interference with the water supply caused by the installation of a coffer dam being a mere trespass or temporary talcing and not an appropriation, the claimant has lost its right to compensation by its failure seasonably to file a notice of intention to file a claim.</p>

Motion by the defendant, Antonio Aprile, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division, Fourth Department, in the first instance after the direction of a verdict in favor of the plaintiff at the close of the case upon a trial before the court and a jury at the Livingston Trial Term in June, 1920.

<p>Appeal by the defendant, Pavilion Natural Gas Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Wyoming on the 1st day of June, 1920, granting plaintiff's motion for an injunction pendente lite.</p>

Appeal by the defendant, Louis Ross, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of February, 1920, on the decision of the court rendered after a trial at the Kings Special Term. The action was for the amount of a promissory note for $1,773.10, dated December 3, 1918, also for recovery of $100, lent defendant on May 1, 1919.

Reargument of an appeal by the plaintiff, Harriet J. McCoun, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 8th day of April, 1920, on the decision of the court rendered after a trial at the Nassau Special Term dismissing the complaint and adjudging the defendant Nellie Cranz as the rightful owner of three adjoining vacant lots at Long Beach, Nassau county. [See 194 App.

<p>Negligence — passenger thrown from automobile — injury or treatment by physician as cause of death — when verdict set aside — errors of surgeon or nurse do not excuse original wrongdoer.</p> <p>Where on the trial of an action for negligently causing the death of an automobile passenger injured in a collision, there is a dispute as to whether death was due to the injury or to the treatment of the attending physician, and the jury is, in effect, told that if the deceased “ would not have died except for the negligence of the physician, then there can be no recovery here against the defendant,” a verdict for the defendant is properly set aside.</p> <p>An original wrongdoer, whose acts inflict injuries that may result in death, is not relieved by errors of a surgeon or nurse in treatment of the injury.</p>

<p>Appeal by Annie Lynam, as committee, etc., and another, 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 22d day of December, 1920, denying a motion for an order to file an oath of a commissioner in a proceeding de lunático inquirendo, as of the date it was taken.</p>

Appeal by the-defendants, Herbert H. White and another, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 7th day of January, 1921, on the decision of the court, overruling defendants’ demurrers to the complaint and granting leave, on terms, to withdraw such demurrers and to answer within twenty days, rendered after a trial at the Kings Special Term.

<p>Appeal by the defendant, Arthur A. Brown, 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 April, 1920, on the decision of the court rendered after a trial at the Kings Special Term, adjudging as void and terminating the agreement between the parties of July 22, 1910, as well as all agreements, having or relating to that subject-matter, and directing that defendant make restitution to plaintiff for the sum of $6,989.99, with interest, together with costs.</p> <p>This litigation has been before considered in 158 Appellate Division, 542; 86 Miscellaneous Reports, 287; 166 Appellate Division, 688, and 217 New York, 628.</p> <p>When the city of New York began to condemn lands for its Catskill water supply, plaintiff engaged in the business of representing defending landowners. For this purpose it had a department for such condemnation, and maintained a branch office at Kingston. Originally Mr. H. T. Slosson had appeared as attorney of record for such owners, who had employed plaintiff on a percentage basis. At 'that time defendant had not been admitted to the bar.</p> <p>Later, in February, 1908, a formal agreement was made between plaintiff and the defendant. It referred to pending and to future condemnation proceedings which he was to conduct. He was to divide equally with plaintiff all allowances up to $57,000. Above that figure, plaintiff was to have seventy-five per cent of all such allowances and counsel fees. Other provisions related to the expenses to be advanced by plaintiff, and to be accounted for in weekly statements, Brown was to act exclusively for plaintiff, so that any contract or retainer from any person that he should accept, and any compensation thereunder, should be for plaintiff’s sole use and benefit. Mr. Slosson was to be compensated out of Mr. Brown’s share. Plaintiff also agreed on $130 as a weekly allowance to Brown and Slosson.</p> <p>This exclusive representation was declared to involve services “ so peculiar and individual in their character as to entitle said Company, to an injunction restraining said Brown and said Slosson- from violating any of the covenants herein above set forth for their exclusive services in the prosecution, preparation for trial and trial of such proceedings in the Counties of Ulster, Greene, Delaware and Schoharie.”</p> <p>Proceedings were had and payments were made without friction or controversy for about two years. But in 1910, at the instance of counsel for the city of New York, an investigation into this division of counsel fees and court allowances was started. The Special Term in Ulster county sent the matter to a referee, a step that seems to have moved the parties to make a new and different contract (Exhibit 1), which was signed on July 22, 1910, to become effective a few days later. By this (1910) agreement all allowances and counsel fees should go to Brown, out of which he was to pay counsel with the costs and expense of witnesses; also Mr. Slosson’s charges; and as outlays should be collected, he was to refund to plaintiff its advances for past witness fees. The percentages that the landowners had contracted to pay plaintiff remained unaffected, and defendant undertook to account for them as he collected them.</p> <p>After the complaint in this action had been finally sustained, the cause came on for trial at Special Term, where an interlocutory judgment was rendered on July 7, 1914. This adjudged as void and canceled the agreement of July 22, 1910, as well as all agreements between the parties having reference to the subject-matter thereof. The defendant was decreed to account “ for and pay to the plaintiff the amount of the percentages of the awards collected by him on behalf of the plaintiff.” He was to account also for “ moneys paid to him by plaintiff for expenses and witness fees of the proceedings in which he acted under contracts made with the plaintiff or with the defendant or with Harrison T. Slosson, and that he account for and pay over to the plaintiff such expenses as were advanced to him by the plaintiff and were thereafter allowed by the condemnation commissioners .in such proceedings, and which were collected and were retained by the defendant.”</p> <p>After proceedings before a referee, his report was set aside, and the order of reference vacated on December 2, 1918. Instead of appointing another referee, the learned justice at Special Term himself undertook the burden of going on with the hearing of this delayed accounting. After taking proofs he filed his decision and findings, upon which was entered the judgment now under review. An appeal, heard herewith, from his order declining to modify his judgment (except to grant a stay pending the appeal) is the subject of a separate decision (196 App. Div. 909).</p> <p>On this appeal it was urged that the agreement of July 22, 1910, not only had displaced the prior agreement of 1908, but by its retroactive effect had divested plaintiff of payments actually made and accepted under the first agreement. It-was also contended that the judgment should not include an item of $3,821.49 for percentages or fees from property owners, who had not entered into any retainer or contract with plaintiff.</p>

Appeal by the defendants, Charles Ragazinsky and another, from a judgment of the County Court of the county of Queens, rendered on the 9th day of December, 1918, convicting them of the crimes of robbery in the first degree, grand larceny in the first degree and assault in the second degree.

Appeal by the relator, Fred H. Haile, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 28th day of August, 1918, on the decision of the court rendered after a trial at the St. Lawrence Special Term, and also from an order entered in said clerk’s office on the 28th day of August, 1918.

Appeal by the plaintiff, Bertha Miles, from an order of the Supreme Court, made at the Madison Trial Term and entered in the office of the clerk of the county of Madison on the 10th day of December, 1919, granting defendant’s motion to set aside the verdict and for a new trial made upon the minutes. Order affirmed, with costs, on the opinion of Kiley, J., at Trial Term. All concur, except Woodward, J., dissenting; Kiley, J., not sitting. '

Appeal by the defendant, New Amsterdam Casualty 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 28th day of April, 1920, on the decision of the court rendered after a trial at the New York Trial Term, a trial by jury having been waived.

Appeal by the defendant, Benjamin Gitlow, from a judgment of the Supreme Court, rendered on the 5th day of February, 1920, convicting him of the crime of criminal anarchy, and also from orders denying defendant’s motions to set- aside the verdict and in arrest of judgment.

<p>Appeal by the defendants, Emerson Norris Co. and another, from an award of the State Industrial Commission, entered in the New York office of the said Commission on the 4th day of June, 1920, and also from an order of said Commission entered in its New York office on the 4th day of August, 1920, denying the application of the defendants to reopen the case and affirming the award theretofore made.</p>

<p>Vendor and purchaser — specific performance — failure to prove description of premises to be conveyed by metes and bounds — election of remedy where wife refuses to assign dower rights — evidence.</p> <p>Before a judgment to direct specific performance of a contract to convey premises by metes and bounds can be made, evidence of the metes and bounds must be given. Hence, where the description of the premises in the contract was simply “ house 20 Jerome Street Bklyn.,” parol evidence should have been introduced to establish the metes and bounds.</p> <p>In a suit for specific performance, wherein the defendant definitely asserts, both in his answer and upon the trial, that his wife refuses to join in a deed, and the wife has been examined as a witness, the orderly procedure for the plaintiff is to elect to sue for damages, or to take subject to the wife’s dower with an abatement in the consideration.</p> <p>The evidence as to the age of the husband and wife requisite to a determination of the value of her dower right, or the necessary evidence as to damages, if the plaintiff seeks damages instead of specific performance, should be submitted at the trial so that there may be a definite final judgment.</p>

<p>Bills and notes — distinction between time of presentment of demand notes carrying interest and those not carrying interest abolished — determination of question whether demand note presented within reasonable time — accommodation indorsement — when determination of question of reasonable time is for jury.</p> <p>The former distinction as to the time of presentment of demand notes carrying interest and those which do not carry interest has been done away with by the Negotiable Instruments Law.</p> <p>Whether a demand note was presented within a reasonable time is a matter of .fact. Where the facts are ascertained and undisputed it is for the court; otherwise, if the testimony be conflicting, for the jury.</p> <p>' Where the holder of a demand note testifies that, at the request and express solicitation of the accommodation indorser, it was not presented until over three and one-half years had passed, but the accommodation indorser testifies to the contrary, it is for the jury to determine whether the note was presented “ within a reasonable time.”</p>

Appeal by the plaintiff, Aaron Martin, a member of the police force of the city of Yonkers, pursuant to section 138 of the Second Class Cities Law, from a determination of Maurice O’Keefe, commissioner of public safety of said city, dated June 1, 1920, which finds the appellant guilty of (1) insubordination and disrespect towards his superior officer; (2) neglect and disobedience of orders; (3) breach of discipline, and (4) negligence and dereliction in the performance of…

Appeal by Diurnal Realty Corporation from an order of the Surrogate’s Court of the county of Westchester, entered in the office of the clerk of said court on the 6th day of December, 1920, granting leave to the executor of Charity C. Mould, deceased, to enter into possession of the real property of the deceased and to manage and control the same and receive the rents thereof, until further order of the court.

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

Appeal by the defendant, Henry Wiernicki, 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 22d day of December, 1921, granting.plaintiff’s motion for judgment on the pleadings.

<p>(See head note in Matter of Mndheim, ante, p. 827.)</p>

Appeal by the defendant, Pablo Mendoza, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of January, 1921, denying defendant’s motion to vacate an order directing the service of the summons herein by publication, and to vacate the warrant of attachment granted herein or in the alternative to modify the same.

<p>Appeal by the defendant, United States Shipping Board Emergency Fleet 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 October, 1920, sustaining 'the demurrer of the plaintiff to the affirmative defense alleged in the answer.</p>

Appeal by the defendant, Charles L. Craig, as comptroller of the city 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 29th day of October, 1920, granting relator’s motion for a peremptory writ of mandamus requiring the defendant, as comptroller of the city of New York, to draw his warrant to the amount of $15,000 payable to relator.

Appeal by the defendant, Charles L. Craig, as comptroller of the city 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 29th day of October, 1920, granting relator’s motion for a peremptory writ of mandamus requiring him to draw his warrant for. the compensation of the relator.

<p>Appeal by the defendant, Charles L. Craig, as comptroller of the city 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 29th day of October, 1920, granting relator’s motion for a peremptory writ of mandamus requiring him to draw his warrant to the amount of $4,000 payable, to the relator.-</p> <p>The bill as rendered for which the warrant is directed is for $4,000; $2,500 is for services rendered after relator had been appointed as Deputy Attorney-General; $1,500 thereof is for services rendered to the Attorney-General as counsel prior to the appointment of relator as a deputy.</p>

<p>Libel — slander not pleadable as counterclaim or defense.</p> <p>In an action for libel slander cannot be pleaded as a counterclaim, a defense, or a partial defense in mitigation.</p>

<p>Corporations — receivers — jurisdiction to appoint receiver of foreign corporation — action by stockholder for accounting and appointment of receiver —■ stipulation .between parties discontinuing action without costs — plaintiff personally liable for services and expenses of receivers.</p> <p>The cour,ts of this State have jurisdiction to intervene in behalf of stockholders of a foreign corporation and, through a receivership of the property within the jurisdiction of the court, to preserve the assets of the corporation against waste, unlawful diversion or mismanagement.</p> <p>In an action by a stockholder of a foreign corporation in the right of the company for an accounting by the directors for acts of waste and negligence and for the appointment of receivers, in which receivers were appointed who entered on their duties and incurred expenses but were restrained from taldng possession of the property of the defendant, the plaintiff is personally liable for the services, disbursements and counsel fees of the receivers, where he entered into a stipulation with the defendants to discontinue the action without costs and to have the order appointing the receivers vacated, and moved on notice to the receivers only for an order of discontinuance. His liability rests not only on the ground of the stipulation whereby he relieved the defendants of liability" but also on the ground that the defendants did not have notice of the application.</p> <p>Neither the corporation nor the individual defendants can be compelled to bear the expenses of the receivership without proof that the facts warranted the appointment of the receivers; that issue was not determined.</p>

Appeal by the plaintiff, Edward D. Loughman, 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 January, 1921, denying plaintiffs motion for an injunction pendente lite from prosecuting a summary proceeding instituted in the Municipal Court of the City of New York, Seventh District, Borough of Manhattan, for the removal of the plaintiff from certain premises as a holdover…

<p>Sales — action to recover purchase price of goods sold — failure to prove amount of goods delivered — evidence — letter from buyer stating reason for rejecting goods admissible.</p> <p>In an action to recover the purchase price of fifty-two pieces of cloth, a recovery cannot be had where the only proof by the plaintiff as to the amount of goods delivered was that each piece contained on an average about forty-five to sixty yards and that the agreed price was three dollars and thirty cents per yard, for there is no basis on which the jury can calculate the damage.</p> <p>It was error for the court to charge that there was no dispute that the plaintiff sold and delivered to the defendant merchandise of the value alleged in the complaint, stating the value.</p> <p>The defendant having interposed the defense that the goods were not as warranted and that he notified the plaintiff of his refusal to accept them, a letter written by the plaintiff to the defendant, in response to a statement by the defendant that he was holding the goods for return, in which the plaintiff said in effect that while the defendant did not state his reasons for wishing to return the goods the plaintiff presumed that it was due to dullness of business and the existence of a lower price on the goods, was admissible, and it was error to reject a registered letter written by the defendant to the plaintiff prior to either of the above letters, which the plaintiff refused to receive from the mail carrier, in which the defendant stated his reasons for rejecting the goods.</p>

<p>Sales — action to recover purchase price of goods not delivered — complaint not stating cause of action ■—• failure to allege facts showing passing of title — pleadings should follow statute.</p> <p>Complaint in an action to recover purchase price of goods does not state a cause of action under subdivision 1 of section 144 of the Personal Property Law where it alleges an agreement for the sale of artificial silk by the pound at an agreed price; that pursuant to the agreement three cases, or 660 pounds, were delivered to and accepted and paid for by the defendant; that plaintiff duly offered to deliver the balance of 1,320 .pounds but that the defendant wrongfully and in violation of the contract failed and refused to accept and pay therefor and still so refuses notwithstanding plaintiff’s readiness, willingness and ability to deliver the goods and tender thereof and that plaintiff holds such balance of the goods for the account and subject to the order of the defendant.</p> <p>The facts alleged in the complaint do not show such an identification and appropriation of the property to the contract as passed title thereto to the defendant.</p> <p>Rule 1 of section 100 of the Personal Property Law, providing that where there is an unconditional contract to sell “ specific goods in a deliverable state,” title passes when the contract is made, cannot avail plaintiff, for it is not alleged that the sale was of specific goods in a deliverable state, but, on the contrary, it is alleged that the goods were to be imported, and that if they did not arrive, the plaintiff was to be under no obligation to deliver them to the buyer.</p> <p>It is important that pleaders should be required to abandon the common-law form of pleading in such cases and follow the statute, and where recovery for the purchase price of undelivered goods is sought, the facts showing that, under the • statute, title has passed to the buyer should be alleged.</p>

<p>Sales — action to recover purchase price of goods delivered and goods tendered and damages for breach of contract by refusal to accept goods — complaint stating cause of action.</p> <p>The first count of the complaint in an action to recover the purchase price of goods delivered and for goods tendered but not accepted in which it is alleged that the plaintiff delivered a part of the goods which the defendant accepted but did not pay for, and that the plaintiff thereafter offered to deliver and tendered additional goods which the defendant refused to accept, is not subject to demurrer for insufficiency.</p> <p>The second count of the complaint, which realleges the allegations of the first count and charges that the defendant subsequently repudiated the contract and refused to accept any further deliveries thereunder and that by reason of the premises the plaintiff was damaged in a specified amount, is not for the purchase price of the goods but for damages for the failure of the defendant to accept and pay for the goods, pursuant to the contract, and states a good cause of action within section 145 of the Personal Property Law; plaintiff was not required to allege the theory on which it estimates its damages.</p>

Motion by defendants for a stay of proceedings pending an appeal from an order of the Supreme Court appointing temporary receivers.

<p>Appeal from order of the Supreme Court, entered in the New York county clerk’s office September 28, 1920, granting an injunction pendente lite.</p>

Motion by the plaintiff for leave to appeal to the Court of Appeals from an order of this court reversing an order of the Special Term of the Supreme Court, New York county, and sustaining defendant’s demurrer to affirmative' defenses in plaintiff’s reply to defendant’s counterclaims.

Motion by Dorothy B. Longman, a legatee, and by the proponent, to dismiss the appeal of Rose H. Longman, contestant, from a decree of the surrogate, New York county, admitting a will to probate.

Motion to amend the order and judgment of the Appellate Division, Second Department, entered upon its decision (181 App. Div. 371), so as to specify the particular question of fact upon which the reversal is based.

Appeal by the defendants 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 31st day of December, 1920, enjoining them, pendente lite, from increasing certain rates.

<p>Surrogate’s Court—jurisdiction — reinstatement of mortgage and cancellation of satisfaction piece — offset of lapsed claim against distributive share.</p>

Appeal by the defendant from a judgment of the County Court of Chemung county rendered October 3, 1919, convicting him of the crime of rape in the second degree. Judgment of conviction affirmed.

Appeal by the defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the Rensselaer county clerk’s office June 3, 1920, upon the verdict of a jury for $2,000, and also from an order entered June 14; 1920, denying a motion for a new trial made upon the minutes. Judgment and order reversed On law and facts and new trial granted, with costs to the appellant to abide the event, on the ground that the verdict is against the weight of the evidence.

<p>Trial — verdict — excessive damages.</p>

Appeal by defendant, Duane Shoe Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 24th day of March, 1920, and also from an order entered in said clerk’s office on the 2d day of April, 1920, denying defendant’s motion for a new trial made upon the minutes.