Volume 196 — New York Appellate Division Reports

<p>Contracts — contract by defendant to sell plaintiff’s patterns exclusively — termination—plaintiff not entitled to injunction restraining defendant from selling other patterns after termination of contract—right of defendant to sell stock on hand.</p> <p>The contract entered into between the parties whereby the defendant agreed to sell plaintiff’s patterns exclusively, which contained a provision that at any time within thirty days after the expiration of any contract term either party might give notice, in writing, of a desire to terminate the agreement, “ and upon the expiration of six months following such notice, or within one week—either before or after — said expiration ” all patterns held by the defendant are to be returned to the plaintiff, was forthwith terminated by defendant’s notice of its election to terminate it, and the plaintiff is not entitled to an injunction pendente lite restraining the defendant from selling in its store other makes of patterns.</p> <p>The injunction order cannot be sustained on account of alleged violations of the contract by the defendant prior to giving notice of election to terminate it, for the order was not made till after the notice, and as the contract was forthwith terminated the plaintiff must b.e left to its remedy, at law for its damages.</p> <p>Upon giving of the notice plaintiff’s obligation to deliver further patterns to the defendant, and the defendant’s obligation to maintain its stock of the plaintiff’s patterns at the minimum amount stated in the contract and to refrain from selling other patterns ceased and terminated, and the defendant was at liberty for the period of six months to continue to sell its stock of plaintiff’s patterns.</p>

<p>Appeal by the defendant, Continental Mills, 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 daw of March, 1920, upon the general verdict of a jury rendered, by direction of the court upon stipulation of the parties after a special verdict had been rendered by the jury by direction of the court, and also from an order entered in said clerk’s office on the same day granting plaintiff’s motion for the direction of a general verdict in favor of the plaintiff and against the defendant and directing the clerk to enter judgment accordingly.</p>

Appeal by the plaintiffs, Stella H. Keating 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 10th day of May,. 1920, granting in part plaintiffs’ motion to continue an injunction pendente lite, denying plaintiffs’ motion for the appointment of a receiver and granting conditionally defendants’ motion to cancel notice of pendency of action, and also from an order entered…

<p>Contracts — action to recover amount due under building contract — complaint alleging full performance — recovery cannot be had on theory that procuring certificate of engineer was waived — erroneous charge as to waiver of partial failure to perform.</p> <p>In an action to recover the contract price for making alterations in a building which is based upon allegations of complete performance by the plaintiff, a recovery cannot be had unless the plaintiff establishes such performance.</p> <p>One of the conditions of the contract being that payment should be made only upon the certificates of the engineer, it was essential to plaintiff’s recovery that he show that said certificates were procured, and he could not recover on the theory that the defendant waived the procuring of the certificates.</p> <p>Charge of the court which allowed the jury to render a verdict for the plaintiff if they found that partial failure to perform had been excused or waived, was erroneous.</p>

Appeal by the defendant, George P. Smith, 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 13th day of November, 1920, on the verdict of a jury for $8,329.20, and also from an order entered in said clerk’s office on the 12th day of November, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Street railways — action to recover for death of person injured in door of subway train — death from lobar pneumonia — injury not proximate cause of death.</p> <p>In an action to recover for death it appeared that decedent, while she was alighting from a subway train, was caught and squeezed between the door and the door-jamb, bruising her left arm, shoulder and side; that she was taken to a hospital but refused to remain there and proceeded to her home by subway; that there was no fracture of any bones; that pneumonia developed some three weeks after the accident; that immediately following the accident examination showed no evidence of pneumonia, and that a short time before pneumonia developed there was some evidence that she was suffering from influenza.</p> <p>Held, on all the evidence, that the accident was not the proximate cause of the death from lobar pneumonia but that there was a competent independent intervening cause between the negligent act of the defendant and the death, and that a verdict in favor of the plaintiff was against the evidence.</p> <p>Gebenbaum, J., dissents, with opinion.</p>

Appeal by the plaintiff, Truly Warner, 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 13th day of September, 1920, as resettled by an order entered in said clerk’s office on the 8th day of October, 1920, and as further resettled by an order entered in said clerk’s office on the 8th day of February, 1921, as grants the motion of David L. Weil, as temporary administrator…

<p>Appeal by the plaintiffs, The People of the State of New York and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of April, 1918, on the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of April, 1918, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Anglo & London-Paris National Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of December, 1920, denying plaintiff’s motion for judgment on the pleadings.

Appeal by the plaintiff, Sanger & Jordan, from an order and determination of the Appellate Term of the Supreme Court, First Judicial Department, entered in the office of the clerk of the county of New York on the 25th day of May, 1920, affirming, by a divided court, a judgment of the Municipal Court, Borough of Manhattan, Third District, in favor of the plaintiff, and also from the judgment of said Municipal Court of the City of New York in favor of the plaintiff, entered in…

Appeal by the defendant, William M. Crane 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 12th day of March, 1920, on the verdict of a jury for $2,084, and also from an order entered in said clerk’s office on the 28th day of February, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Landlord and tenant — action for injury to child of tenant while playing in back yard — yard not appurtenant to tenancy — plaintiff was licensee in using yard as playground — duty of landlord to keep yard in repair.</p> <p>In an action against a landlord to recover damages for injury to an infant, the child of one of the tenants, who while playing in the hack yard fell into an areaway by reason of a break in the cement coping around the same, it appeared that the child and its mother lived on the first floor, that there was a door leading from the dining room on the first floor into the yard, in the back of which was a pole extending up so that clothes lines could be run across to the windows in each of the three apartments; that there was no general entrance way into the yard from the apartment house, and that the yard was not used by the tenants except in connection with the use of the clothes pole.</p> <p>Held, that the only right of the tenants was to make use of the clothes pole upon which to string the lines for the washing, and any other use of this yard by them was purely the use of a licensee and not the use of a contractee or an invitee.</p> <p>If it may be deemed that the yard was appurtenant to the tenancy of the lower floor, occupied by the plaintiff’s mother, nevertheless she took it as she found it, and the landlord was not bound to make any change, for it is only where a part of the premises is used in common by different tenants that there is a liability on the part of the landlord to keep it in repair.</p> <p>Since the child was in the yard as a mere licensee, there was no liability" for mere negligence and no act was shown which was a violation of any duty owed by the defendant to the plaintiff.</p>

Appeal by the defendants, Louis Alfandri 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 15th day of November, 1920, granting plaintiff’s motion for judgment on the pleadings consisting of a complaint and a demurrer.

Appeal by the defendant, Arma Engineering 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 1st day of February, 1921, denying defendant’s motion to preclude plaintiff from giving any evidence in support of the allegations or matters set forth in the amended complaint, of which further particulars have not been furnished as required by previous order.

Appeal by the defendant, E. E. Paul Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 16th day of July, 1919, on the report of a referee appointed to hear and determine the whole issues.

Appeal by the defendant, London and Lancashire Indemnity Company of America, 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, on the decision of the court, rendered after a trial at the New York Trial Term, a trial by jury having been waived.

<p>Cross-appeals by the parties 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 September, 1920, on the decision of the court rendered after a trial at the Westchester Special Term.</p> <p>The action is, vendee against vendor, for the specific performance of a contract for the sale of real property, with an alternative claim for damages if the defendant is found unable to perform. The learned justice at Special Term found the facts for the plaintiff, but held that the defendant, having made a contract for the sale of the property to a third person, could not be required to specifically perform, and, therefore, judgment was rendered for the plaintiff for $2,000 damages for breach of the contract. The plaintiff appeals, claiming that he should have had specific performance. The defendant appeals, claiming that there was no proof which justified a finding of a cause of action in favor of the plaintiff.</p>

<p>Appeal by the defendants, Virginius J. Mayo and another, from an interlocutory 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 January, 1920, on the decision of the court after a trial at the Kings Special Term.</p> <p>The action is brought by the plaintiff, a judgment creditor, to set aside a conveyance of real property made by defendant Mayo, as grantor, to defendant Lois Dudley Waterbury, as grantee, on the ground that the same was made with intent to hinder, delay and defraud the creditors of defendant Mayo.</p>

<p>Mortgages — foreclosure—person who furnishes purchase price of property and causes title to be taken in name of another is not necessary party defendant — Real Property Law, section 94, applied.</p> <p>Under section 94 of the Real Property Law, a person who furnishes the purchase price of property and causes the title to be taken in the name of another, without any agreement whatever in relation thereto, has no interest in the premises, and is not a necessary party in an action for the foreclosure of a mortgage thereon, even though he was actually in possession.</p>

<p>Appeal by the defendant, Hugh Hassan, from a judgment of the County Court of the county of Kings, rendered on the 14th day of April, 1919, convicting him of the crime of grand larceny in the first degree, second offense.</p>

Appeal by the defendants, Fred O. H. Fincke Company, Inc., and others, 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 29th day of November, 1920, granting plaintiff’s motion for an order restraining the defendants from commencing or maintaining any foreclosure or other proceedings against the plaintiff under and by virtue of a certain bond'and mortgage, till the determination of the…

<p>Executors and administrators — power of sale given to executrix by will — contract of sale executed prior to death of executrix — power of administrator with will annexed to complete sale — deed by administrator passes good title.</p> <p>Where an executrix under a will containing a power of sale executes a contract for the sale of real property of her testator but dies before the title is closed and the deed is passed, an administrator with the will annexed has power to execute the deed provided for in the contract of sale, and said deed passes a good and marketable title.</p>

<p>Husband and wife — divorce — defense that marriage was incestuous — marriage between man and daughter of his half brother is void.</p> <p>The marriage between the defendant and the plaintiff, who was the daughter of defendant’s half brother, was incestuous and void within the purview of subdivision 3 of section 5 of the Domestic Relations Law making void the marriage of uncle and niece, and, therefore, the marriage on which the action for divorce is predicated being void, there is no basis for the maintainance of the action.</p>

Appeal by the defendants, Archbald Consolidated Coal Company 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, granting plaintiff’s motion for a temporary injunction pending the determination of the action.

Appeal by the plaintiff, Ralph L. Fuller & Co., 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 8th day of July, 1920, upon the dismissal of the complaint at the opening of the case.

Appeal by the plaintiff, Wilton Manufacturing Company, Inc., from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 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 without a jury, as dismisses the plaintiff’s fourth cause of action.

Appeal by the defendants, Maud Nathan and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of August, 1920, on the decision of the court rendered after a trial at the New York Special Term, construing a paragraph of the will of Benjamin Nathan, deceased. The portion of the will presented for construction, so far as it is necessary to quote it, reads as follows: “Seventeenth.

Appeal by Lucius H. Beers and others from a decree 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 21st day of August, 1916, on special findings and a general verdict of the jury, denying probate of a testamentary paper propounded as the last will and testament of Amos F. Eno, deceased, and also from an order entered in said clerk’s office on the same day denying appellants’ motion to set aside the…

Appeal by the. defendant, Frank J. Galbina, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of June, 1919, on the verdict of a jury for $21,006.80, and also from an order entered in said clerk’s office on the 24th day of June, 1919, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the United States of America from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of June, 1920, adjudging that the claim of the United States, designated as surety claim No. 633, be disallowed without prejudice to said claimant’s right to share in the surplus, if any, after payment of the liabilities existing and matured at the date of the entry of said order of…

Appeal by the defendant/ Dominick Henry, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 15th day of June, 1920, convicting him of the crime of perjury, and also, as stated in the notice of appeal, from the decision of the court overruling the demurrer to the indictment entered on the 27th day of May, 1920.

Appeal by the defendants, Max Aronson and another, from a j'udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of July, 1920, on the decision of the court rendered after a trial at the New York Special Term directing the defendants to execute and deliver to plaintiff a lease in the° form of “ Exhibit A ” annexed to the judgment, and enjoining defendants from interfering with plaintiff’s…

Appeal by the defendant, Broadway-94th Street Realty Co., Inc., from a judgment of the Supreme Court in favor of defendant Pollack & O’Neill, Inc., entered in the office of the clerk of the county of New York on the 17th day of June, 1920, on the decision of the court, rendered after a trial at the New York Special Term, awarding to defendant Pollack & O’Neill, Inc., the sum of $5,175.60, and adjudging a lien for that amount against the premises described in the complaint,…

Appeal by the defendant, Eugene Schimpff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of October, 1920, on the verdict of a jury for $5,000 rendered by direction of the court.

Appeal by the United Traction Company from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Rensselaer on the 2d day of April, 1921, directing the trial of certain issues by jury and directing that such trial take place at a Trial Term of the Supreme Court, appointed to be held within and for the county of Rensselaer on the 4th day of April, 1921, and that such trial proceed at said Trial Term at…

<p>Taxation — corporation engaged principally in business of constructing concrete buildings is not “ manufacturing ” corporation exempt under Tax Law, article 9-A, section 219-j —statute limited to corporations engaged in manufacture, purchase or sale of personal property.</p> <p>A corporation which was principally engaged in constructing concrete buildings, including the installation of elevators and sprinklers and the doing of the glazing, roofing, plumbing and electrical work, which did not maintain any shops where the articles used in its business were manufactured, except a small woodworking plant of insignificant proportions, was not a “ manufacturing ” corporation within the meaning of article 9-A of the Tax Law, as amended in 1918, and, hence, was not exempt from local taxation under section 219-j of said article for the year 1919.</p> <p>It was the intention of the Legislature to limit said article of the Tax Law to such manufacturing corporations as were engaged in the manufacture of personal property as differentiated from real estate, and those corporations which were engaged in the buying and selling of such manufactured goods.</p>

<p>Workmen’s Compensation. Law—dependency — when father and mother not dependent on son.</p> <p>The father and mother of a decedent were not'dependent on him at the time of an accident resulting in his death, where it appears that during the preceding year the family consisted of the father, mother and son; that the father earned more than twenty dollars per week; that the mother netted about forty dollars per month from the rental of rooms and that the son contributed the sum of fifteen dollars per week and was boarded and lodged and at times had clothing bought for him.</p>

<p>Appeal by the defendants, Chelsea Fibre Mills and another, from an award, order and decision of the State Industrial Commission, made on the 4th day of June, 1920.</p>

<p>Workmen’s Compensation Law—“ employee ” defined — section 3, subdivisions 4 and 6 — city fireman not employee of city and within section 2, group 42, relating to salvage of buildings or contents — group 43 construed.</p> <p>A uniformed city fireman of the city of New York is not an “ employee ” of the city within subdivisions 4 and 5 of section 3 of the Workmen’s Compensation Law.</p> <p>A city fire department is not operated for pecuniary gain, and a city fireman, while putting out a fire in the course of his employment as such, is not within group 42 of section 2 of the Workmen’s Compensation Law, relating to “ salvage of buildings or contents ” as hazardous employment. It seems, that the purpose of group 43 of section 2 of the Workmen’s Compensation Law is to bring within the statute the State and municipalities carrying on employments enumerated in previous groups, which are carried on for its own purposes, as distinguished from those operated for the protection of its inhabitants.</p>

Appeal by the New York Theatre Company from orders of the Supreme Court, made at the New York Special Term in each of the above-entitled proceedings and entered in the office of the clerk of the county of New York on the 12th day of August, 1920, denying the motion of the said New York Theatre Company in each proceeding, to modify or set aside the majority report and appraisement of the appraiser^, filed on the 15th day of July, 1920.

<p>Appeal by the defendants, Mathieson Alkali Company, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 17th day of March, 1920.</p>

<p>Appeal by the plaintiff, Robert G. Rutherford, from an order of the County Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 4th day of August, 1920, denying plaintiff’s motion to dismiss an appeal by the defendant from a judgment taken against him in the Justice's Court of the town of Hammond, St. Lawrence county.</p>

Appeal by the plaintiff, Lorenz Reich, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of September, 1917, on the decision of the court rendered after a trial at the New York Special Term of certain issues pursuant to an order of the Appellate Division, First Department.

Motion by the plaintiff, Adolph Schlitten, for a new trial on a case containing exceptions, ordered to be heard at the Appellate Division, First Department, in the first instance, after a dismissal of the complaint at the close of plaintiff’s case on a trial before the court and a jury at the New York Trial Term in March, 1920.

<p>Appeal — Court of Appeals — appeal as of right from judgment entered on order of affirmance by Appellate Division by divided court — questions not to be certified — when questions to be certified — notice of appeal to Court of Appeals to specify intermediate order to be reviewed.</p> <p>A judgment of the Appellate Division entered on an order affirming a judgment of the Special Term of the Supreme Court is a final determination of the action and an appeal to the Court of Appeals lies therefrom as of right where the affirmance is not unanimous; the appeal is not taken from the order of affirmance but from the judgment entered thereon.</p> <p>It would be improper in such case to certify questions of law to be reviewed by the Court of Appeals, as it is only where an appeal is allowed from a determination of the Appellate Division, other than from a judgment which finally determines the action, that one or more questions must be certified, and when an appeal is allowed from a judgment finally determining the action, the court merely certifies that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals.</p> <p>If upon an appeal to the Court of Appeals as of right from a judgment entered on an order of affirmance by the Appellate Division, the appellant intends to review any intermediate order, the notice of appeal must distinctly specify such order to be reviewed.</p>

<p>Corporations — membership corporations — application to amend charter so as to include persons not opposed to “ Marxian principles ” denied — Marxian principles as within prohibition of Penal Law, sections 160, 161.</p> <p>An application of the Lithuanian Workers’ Literature Society to amend their charter, so as to admit to membership persons not opposed to the “ Marxian principles approved by the majority of the members,” is properly denied, where it appears that there is dissension among the Lithuanians as to whether such principles advocate the overthrow of the government by violence, rather than by constitutional or parliamentarian procedure, and it further appears that Karl Marx, at times, gave his sanction and approval to the attempts to overthrow governments by violence, and by methods which are condemned by sections 160 and 161 of the Penal Law.</p> <p>The Socialistic principles propounded by Karl Marx are broad enough to justify, even in this country, the propaganda, which our Penal Law condemns as criminal and even felonious.</p>

Appeal by the plaintiff, Charles A. Herman, as treasurer, 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 3d day of February, 1920, denying plaintiff’s motion for an injunction pendente lite.

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

<p>Motion by plaintiffs, United States Trust Company of New York and another, as trustees, etc., for a new trial on a case containing exceptions, ordered to be heard at the Appellate Division, First Department, in the first instance, after the plaintiffs were nonsuited, and their motion made at the close of the case for a directed verdict was denied, on a trial before the court and a jury at the New York Trial Term in February, 1920.</p>

<p>Trial — when motion to dismiss deemed made though record does not so state — landlord and tenant — possessory remedies — warrant requires marshal to remove tenant’s property — tenant liable for expenses advanced by landlord to marshal in removing property — landlord not liable for damage done by marshal to tenant’s property — liability of marshal and his employees for acts in excess of authority — landlord not liable for damage caused by unauthorized direction of her attorney.</p> <p>Where the remarks of the trial court, as shown by the record, indicate that the defendants moved to dismiss the complaint and that the plaintiff moved to dismiss the counterclaim, it will be deemed, on appeal, that those motions were made though the record does not so state.</p> <p>A warrant issued in summary proceedings, which requires not only that the tenant shall be removed but that the landlord shall be put into full possession of the premises, authorizes and requires the marshal to remove the tenant’s property.</p> <p>A tenant is liable on an implied obligation to reimburse the landlord for moneys paid to a marshal to hire men to remove the tenant’s property from the premises under a warrant in summary proceedings, where the situation is such, owing to the nature and extent of the tenant’s property, that the marshal refuses to remove it unless the landlord will advance the amount required for help in so doing.</p> <p>The landlord, though she pays the expense incurred in removing the property, is not liable for any damage done by the marshal, or the men he hires to assist him.</p> <p>The warrant protected the marshal and those employed by him to the extent of their authority thereunder, and it seems that if they went beyond such authority they became trespassers and are liable therefor. Since there is no evidence that the landlord authorized her attorney to direct the marshal or his men to break the property in removing it, she is not hable though such direction was given.</p>

Appeal by the defendant, Harry Rubin, from a determination and order of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of said court on the 17th day of February, 1920, reversing a judgment of the Municipal Court, Borough of Manhattan, Third District, in favor of the defendant.

Appeal by the plaintiff, George B. Hewlett, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d day of November, 1916, on the decision of the court rendered after a trial at the New York Trial Term without a jury dismissing the complaint on the merits.

<p>Appeal by the defendant, Poland Spring 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 14th day of August, 1920, on the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

<p>Appeal by the defendant, Gage Brothers & Company, Incorporated, from a judgment of the Supreme Court in favor of the plaintiffs, .entered in the office of the clerk of the county of New York on the 8th day of June, 1920, on the verdict of a jury for $2,372.03, rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of June, 1920, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Frederick Munroe Dyer, 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 November, 1920, on the verdict of a jury for $5,140, and also from an order entered in said clerk’s office on the 15th day of November, 1920, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Henry E. Dixey, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Nassau on the 15th day of September, 1920, on the report of a referee appointed to hear and determine the whole issues, adjudging that plaintiff recover possession of the family residence in Piándome, with damages for withholding possession.

Appeal by Emma Knight Powers from a decree pf the Surrogat’s Court of the county of Kings, entered in the office of said surrogate on the 24th day of September, 1920, so far as the same adjudged that Henry Lambert Knight is entitled to and shall receive one-third of the trust fund created by the 6th clause of the said will.

<p>Attorney and client — summary proceedings to compel attorney to pay over money — remedy not available except in clear case — proceeding not maintainable where attorney actmg as business agent of parties in sale of corporation, in good faith, paid money received to petitioner’s associate — application discretionary.</p> <p>An attorney should not be subjected to summary process to compel him to pay over money to a client, except in a plain ease where he has violated his professional duty, that is, really acted in bad faith. If the matter is one of doubtful right, the client should be left to the assertion of that right in an ordinary action.</p> <p>Summary proceedings to compel an attorney to pay over money to his client are not maintainable where it appears that the petitioner and a third person, who were interested in a corporation owning a restaurant, sold the business, by a sale of the corporate stock, at a loss; that the attorney acted in that transaction as the attorney for both parties and upon receiving the money for the sale of the stock turned it over to said third person who had been the president of the corporation; and that sometime thereafter the petitioner, not being able to agree with his associate as to the division of the money, made a demand on the attorney for what he conceived to be his share of the proceeds.</p> <p>. An application to compel an attorney to pay over money to a client is not a -matter of right, but is addressed to the discretion of the court.</p>

• Appeal by the defendants, George Orlevitch and others, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 9th day of March, 1921, denying their motion for an order requiring - the plaintiff to separately state and number the causes of action alleged in the complaint.

<p>Depositions — examination before trial of foreign corporation doing business in this State — examination proper where plaintiff cannot make bill of particulars otherwise —■ objection to service of order not ground for vacating.</p> <p>A foreign corporation duly authorized to and engaged in business in this State is subject to examination before trial, under section 870 of the Code of Civil Procedure, in an action against it on a contract made within this State.</p> <p>And it was proper for the court to order an examination where it appeared that the defendant made application for a further bill of particulars, and that the plaintiff was unable to furnish the same without an examination of the defendant and its books of account.</p> <p>Objection to service on the attorney for the defendant is not a ground for vacating the order.</p>

Appeal by the defendant, George N. Robinson, 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 Richmond on the 14th day of February, 1921, striking out certain paragraphs from the answer. Both causes of action are upon contract. The first was for services between June 17, 1918, and July 8, 1920, in renting the Robinson. Building.

Appeal by the defendants, Charles Wein and another, from an order of the County Court of the county of Westchester, entered in the office of the clerk of said county on the 8th day of December, 1919, affirming a judgment of a Court of Special Sessions before Malcom Merritt, assistant police justice of the village of Port Chester, rendered on'the 14th day of August, 1919, convicting the defendants of the crime of disorderly conduct and fining each five dollars.

Appeal by the petitioner, The City of New York, 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 7th day of October, 1919, denying the petitioner’s motion to confirm the supplemental and amended report of the commissioners herein and referring the matter as to damage parcel No. 1-A to new commissioners for consideration and report.

<p>Principal and agent — action for commissions on sale of goods — contract for payment when goods paid for — commissions due when goods paid for except where non-payment due to principal’s fault — complaint insufficient which does not allege that goods were paid for or that failure to pay was due to defendant’s fault.</p> <p>Where a principal and agent expressly agree that commissions on the sale of goods are not to become due “until the goods are paid for by the customers,” the agent cannot disregard this express stipulation in asserting his rights under the contract, for it is a condition precedent to his right to recover, and he must either allege performance, or if it has not been performed through the fault of the principal he must allege that fact.</p> <p>Complaint in an action to recover commissions under such a contract is insufficient where it is not alleged that the goods were paid for as provided in the contract or if they were not paid for that failure to do so was due to the fault, omission or unlawful, unreasonable or arbitrary act of the defendant; such facts should have been pleaded as an essential part of plaintiff’s cause of action.</p>

Appeal by the defendant, D. Nagase & Co., Ltd., from an order of the Supreme Court, made. at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of October, 1920, sustaining a demurrer to the third and fourth partial defenses, and to the first and second counterclaims, and dismissing the counterclaims.

Re argument of an appeal by the defendant, New York, Ontario and Western Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of November, 1919, upon the verdict of a jury for $15,000, as amended by an order of said court dated the 24th day of December, 1919, and also from an order entered in said clerk’s office on the 3d day of December, 1919, denying defendant’s motion for…

Appeal by the defendants, Stuard Hirschman and others, from a judgment and decree of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 3d day of December, 1919, on the decision of the court rendered after a trial at the Queens Special Term.

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

Appeal by the plaintiff, Fred 0. Seaver, from a judgment of the Supreme Court in favor of the . defendant, entered in the office of the clerk of the county of Kings on the 9th day of August, 1920, upon the decision of the court rendered after a trial at the Kings Trial Term, a jury having been waived, and also from an order entered in said clerk’s office on the 11th day of June, 1920, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Philip Thiel 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 15th day of November, 1920, overruling the demurrers to the complaint in an action for partition.

Appeal by the defendant, George C. Otton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 12th day of December, 1918, upon the decision of the court rendered after a trial at the Richmond Special Term.

Appeal by the defendant, Edward B. Hosier, from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1921, as resettled, adjudging plaintiff guilty of contempt for disobeying an order to pay certain money into court and fining plaintiff for said contempt, the fine- to be paid into the - office of the chamberlain of the city. of. New York. . .

Appeal by the plaintiff, E.. B. Ficklen Tobacco Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1921, staying -the trial of the action and directing the plaintiff to permit the defendants to inspect and remove portions of the tobacco stored in North Carolina, and also from an order entered in said clerk’s office on the 14th day of March, 1921, denying…

<p>Attorney and client — disbarment of attorney who had been active practitioner for upwards of twelve years for converting proceeds in mortgage foreclosure proceedings while acting as referee.</p> <p>An attorney who had been an active practitioner for a period of upwards of twelve years is properly disbarred where it appears that, after his appointment as referee in mortgage foreclosure proceedings to sell the property and deposit the proceeds of sale, he converted such proceeds to his own use and accounted therefor only after contempt proceedings were instituted against him for the failure to make payment, even though he had paid his fine and accounted before these proceedings were instituted.</p>

Appeal by the plaintiff, Edwin D. DeWitt, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of' New York on the 16th day of December, 1920, as overrules plaintiff’s demurrer to the counterclaim contained in defendant’s amended answer and directs final judgment for defendant for the relief demanded in said counterclaim in the event of default by the plaintiff in the service of a reply thereto within ten days after…

Appeal by the defendants, John P. Leo and others, constituting the board of appeals 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 10th day of July, 1920, sustaining a writ of certiorari and annulling their proceedings and determination denying the appeal of the relator from the order of the fire commissioner requiring it to install on pier 77, North river,…

Appeal by the defendant, Charles E. Finlay, 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 November, 1919, on the verdict of a jury, and also from an order entered in- said clerk’s office on the 13th day of November, 1919, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, The Teneo Co., Inc., from a determination and order of the Appellate Term of the Supreme Court, First Judicial Department, entered in the office of the clerk of the county of New York on the 29th day of November, 1920, reversing a judgment of the City Court of the City of New York in favor of the defendant dismissing the complaint herein, and granting judgment for the plaintiff pursuant to a stipulation with respect to the amount of the damages; also…

Appeal by the defendants, Santa Lucia Company, S. A., 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 3d day of August, 1920, denying their application for an order recognizing the sufficiency of their petition, duly verified July 9, 1920, and bond for the removal of this cause into the United States District Court, Southern District of New York, and that the State…

Appeal by 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 27th day of December, 1920, resettling and amending nunc pro tunc an order entered in said clerk’s office on the 19th day. of November, 1919, confirming the report of the commissioners of estimate as to the award to The.

Appeal by the defendant, Hannibal J. De Mesa, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of February, 1921, denying defendant’s motion to open his default and to set aside a judgment entered in said clerk’s office on the 14th day of January, 1921.

Appeal by the plaintiff, Cuban Telephone Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of November, 1920, granting defendants’ motion for discovery and inspection.

Appeal by the plaintiff, Solomon Kalvin, from a determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the Supreme Court on the 12th day of July, 1920, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, awarding possession to the plaintiff in summary proceedings.

Appeal by the defendant, Frank M. Van Horn, 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, on the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1920, denying said defendant’s motion to set aside the verdict and for a new trial made upon, the minutes.

Appeal by the plaintiffs, Mary Burke and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of February, 1920, upon the decision of the court rendered after a trial at the New York Special Term sustaining defendant’s demurrer to the complaint and dismissing the complaint upon the merits.

Appeal by the defendant, Phoenix Assurance Company, Limited, of London, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 27th day of 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 same day, as amended by an order entered in said clerk’s office on the 11th day of June, 1920, denying defendant’s motion to…

Appeal by the defendant, Finkel Umbrella Frame Co., Inc., from an order and determination of the Appellate Term of the Supreme Court, First Judicial Department, entered in the office of the clerk of the Appellate Term on the 24th day of June, 1920, affirming the final order of the Municipal Court of the City of New York, Borough of Manhattan, First District, in summary proceedings, in favor of the plaintiff, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, The Lake Shore Banking and Trust Company, appearing specially for the purpose of moving to vacate the warrant of attachment herein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of March, 1921, denying defendant’s motion to vacate and set aside the said warrant of attachment.

Appeal by the plaintiff, Elizabeth Mount, and by the defendants, Clarence M. Davis and others, from parts of an interlocutory judgment, entered in the office of the clerk of the county of New York on the 7th day of December, 1920, on the decision of the court, rendered after a trial at the New York Special Term.

Certiorari issued out of the Supreme Court and attested on the 23d day of October, 1920, directed to Public Service Commission, Second District, State of New York, 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 on an application to compel the relator to make certain gas connections and to supply natural gas to certain persons.

<p>Appeal by the defendant, The Wigwam Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on or about the 28th day of June, 1920, setting aside the verdict in defendant’s favor and directing a new trial upon the exceptions taken by the plaintiff at the trial.</p>

<p>Appeal by the plaintiff, Abraham. S. Weintraüb, 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 August, 1920, sustaining, defendant’s demurrer to the complaint with leave to plead over without payment of costs.</p>

• Appeal by the plaintiff, Marie Antoinette Sirie, 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 27th day of December, 1920, upon the decision of the court, rendered after a trial at the New York Trial Term, the parties having consented in open court that the case be tried by the court without a jury upon stipulated and agreed facts.

<p>Principal and agent — action to recover portion of commission earned on sale of vessel by several agents — interpleader of foreign agent properly denied — persona! service necessary on motion to interplead third party —■ construction of instrument purporting “ to protect ” one of three agents in two-thirds of commission — parol evidence admissible to ascertain purport of written instrument—-when authority to receive money for another may be revoked.</p> <p>In an action to recover two-thirds of the commission received by the defendant, a New York concern, for the sale of a steamship, it appeared that the steamship had been placed in the hands of the defendant and a Massachusetts corporation for sale. The latter had an agent in New York city who introduced the plaintiff to the defendant, and thereafter the plaintiff brought about the sale. Prior to the same the plaintiff received a letter from the defendant whereby, in effect, it agreed “ to protect ” him for two-thirds of the commission accruing from the sale. There was also some evidence introduced to show that prior to the sale an agreement was made between the plaintiff, the defendant and the representative of the Massachusetts agent that the commission should be received by the defendant and divided into three equal parts, one of which the defendant was to retain, one to be,paid to the plaintiff, and the third part to the Massachusetts agent.</p> <p>Held, that a motion for interpleader seeking to bring in the Massachusetts agent, made upon service on said agent’s representative in this State, was properly denied, since said agent had no power, being a non-resident, to designate a person upon whom service of summons or notice of motion could be made.</p> <p>In order to interplead a third party the defendant must make personal service upon the party to be interpleaded so as to bring that party within the jurisdiction of the court.</p> <p>The instrument purporting “ to protect ” the plaintiff was not an arrangement in which the brokers, or their representative authorized to sell the vessel, concurred, so as to free the defendant from its obligation of paying the two-thirds over to the plaintiff, since there was no promise to pay, but merely a promise “ to protect ” the plaintiff.</p> <p>It was error on the part of the trial court to reject oral evidence corroborative of evidence tending to show that each broker was to receive one-third of the commission, since it is not improper to show that the instrument was given not to create a liability, but in fact for the purpose stated therein.</p> <p>The authority given to the plaintiff to receive the money might have been revoked at any time before the money was handed over even though the defendant had executed the paper as here claimed for the benefit of the plaintiff and the selling brokers.</p> <p>Gbeenbattm, J., dissenting in part.</p>

Appeal by the defendants, William F. Purcell 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 5th day of February, 1921, denying defendants’ motion to set aside an interlocutory judgment herein and granting a new trial because of newly-discovered evidence, or, in the alternative, that the said judgment be modified or changed in certain respects.

Appeal by the plaintiff, William Wolff, 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 December, 1920, denying plaintiff’s motion to continue a preliminary injunction.

<p>Depositions — motion for issuance of commission and letters rogatory for examination of witnesses in foreign country —■ when court will pass upon relevancy or materiality of testimony sought — motion denied because testimony sought was irrelevant and immaterial.</p> <p>While ordinarily on a motion for the issuance of a commission and letters rogatory for the examination of witnesses in a foreign country, the court will not pass upon the relevancy or materiality of the testimony sought, yet, where a large sum of money is in the possession and subject to the risks of the business of the moving party, and a long delay of the trial will ensue, the court will scrutinize more carefully the moving papers and, if the testimony is irrelevant and immaterial, deny the motion.</p> <p>In this case such a motion should be denied because the testimony sought has not the slightest relevancy or materiality to the issues.</p>

Appeal by the defendants, William J. Simpson and another, individually and as executors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of December, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Charles L. Craig 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 24th day of May, 1920, granting petitioner’s motion for a peremptory writ of mandamus.

Appeal by the plaintiff, Elizabeth Rider, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 27th day of August, 1919, on the decision of the court rendered after a trial at the Orange Special Term.

Appeal by Agnes Manning Banon from a decree of the Surrogate’s Court of the county of New York, entered in said surrogate’s office on the 2d day of July, 1919, in so far as it construes paragraph 32 of the will of the testator as limiting the legacy thereby given to her to “ State of Virginia interest scrip certificates or Brown Brothers certificates issued for State of Virginia interest scrip certificates,” owned by the testator at the time of his death, and holds that the…

Appeal by Agnes Manning Banon from an order of the Surrogate’s Court of the' county of New York, entered in said surrogate’s office on the 18th day of November, 1919, denying her motion to vacate and set aside the decree entered in the proceeding instituted by the executors for a construction of the will, and her motion for a rehearing or a new trial made on the grounds of newly-discovered evidence and in the interest of justice to her.

<p>Appeal by the claimant, John H. Gordon, from an order of the Court of Claims, entered in the office of the clerk of said court on the 14th day of February, 1921, and also from a judgment entered upon said order in said clerk’s office on the 10th day of March, 1921, dismissing the claim of said claimant.</p>

Appeal by the plaintiff, Arthur J. Holmes, from a judgment of the Supreme Court in favor of the defendant Cyrus B. Lincoln, as guardian ad litem, entered in the office of the clerk of the county of Delaware on the 14th day of December, 1920, upon the«decision of the court rendered after a trial without a jury at the Delaware Trial and Special Term, overruling the plaintiff’s demurrer to the answer and directing judgment of no cause of action in favor of the defendant.

Certiorari issued out of the Supreme Court and attested on the 7th day of January, 1921, directed to James A. Wendell, 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 his proceedings had in adjusting an account for income taxes for the taxable year 1919 against the petitioner under article 16 of the Tax Law (as added by Laws of 1919, chap. 627), and in revising said account.

Appeal by the plaintiff, Rensselaer and Saratoga Railroad Company, from so much of an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 18th day of August, 1920, as amends an order made at the Ulster Special Term and entered in the office of the clerk of the county of Rensselaer on the 19th day of June, 1920, denying plaintiff’s motion to dismiss the action as to the defendant Roscoe Irwin.

Appeal by the defendant, Edward H. Sherwood, individually and as administrator, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 8th day of January, 1921, upon the decision of the court rendered after a trial without a jury at the Cortland Trial and Special Term, adjudging that a certain instrument executed by Ella F. Sherwood to the defendant Edward H. Sherwood is void and of no effect.

Appeal by the defendant, Horace E. Conklin, from so much of an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Broome on the 12th day of January, 1921, as directs the payment by defendant of $200 per week for the support of the plaintiff and her three children during the pendency of the action, of $7,500 on account of counsel fees, and of $1,500 for the subpoena of witnesses.

Certiorari issued out of the Supreme Court and attested on the 21st day of January, 1921, directed to James A. Wendell, 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 taxable year 1919, against the relator under article 16 of the Tax Law, and in revising said account.

Appeal by the defendants, Globe Automatic Sprinkler Company and another, from a decision and award of the State Industrial Commission, entered in the office of the said Commission on the 19th day of July, 1920, rescinding the decision of the said Commission denying further compensation and reinstating a previous award.

Appeal by the defendants, Henry I. Stetler, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 23d day of September, 1920.

Appeal by the defendant, Herman Heidelberger, 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 18th day of February, 1921, denying defendant’s motion to vacate the warrant of attachment.

Appeal by the defendant, Knapp & Baxter, Incorporated, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of January, 1921, denying its motion for judgment on the pleadings consisting of a complaint and answer.

Appeal by the defendant, The Chase National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of November, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of November, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the Farmers’ Loan and Trust Company, as ancillary executor, from an order of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 29th day of September, 1920, directing it to pay to the petitioner, Roger Foster, out of the assets of said estate, the sum of $952.18, which together with his costs and disbursements constitutes the amount claimed to be due to him for legal services rendered at the request of one…

Appeal by the defendants, The New York Edison 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 14th day of March, 1921, granting plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, Julius DeNeergaard, 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 12th day of November, 1920, upon the verdict of a jury for $2,000, 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>Injunction — suit by employer to restrain officers of international union and former employees from picketing, etc.— sufficiency of complaint — temporary injunction denied.</p> <p>Where in a suit by an employer to restrain the president and secretary of an international union and also certain former employees who were out on strike from picketing and interfering with other employees of the plaintiff in an effort to persuade said other employees to violate their agreements with the plaintiff, it is alleged, in effect, that the defendants resorted to picketing, etc., to harass and annoy plaintiff’s employees, but there is no allegation that the defendants were persuading said employees to violate their agreements with the plaintiff nor that they ' succeeded in so doing, and there is no evidence that the defendants knew of the so-called agreements between the plaintiff and its employees, a temporary injunction should not be granted restraining the defendants from doing any acts in violation of the agreements between the plaintiff and its employees, where the affidavits in support of such motion allege only three instances of lawlessness, one of which was not shown to have been committed by the defendants or at their instigation or with their knowledge or sanction and while the other instances were shown to have been committed by the individual defendants, there was no evidence that the union was responsible therefor, and it further appeared that the strike had been in progress for three weeks before the injunction was sought.</p> <p>Page and Merrell, JJ., dissent.</p>

<p>Appeal by the plaintiff, Walter J. Wayte, 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 26th day of October, 1920, striking from the second amended complaint certain matters as scandalous, and certain paragraphs as irrelevant and other- paragraphs as redundant.</p>

<p>Appeal by the defendants, Miller & Gold and another, from an award of the State Industrial Commission, made on the 30th day of September, 1920.</p>

Appeal by the claimants, Rosanna Kabel and another, from the findings, rulings and award of the State Industrial Commission, entered in the New York office of said Commission on the 7th day of January, 1920.

<p>Appeal by the claimant, Martha Lansing, from a decision of the State Industrial Commission, entered in the office of the said Commission on the 9th day of August, 1919, denying an award to the claimant on the ground that the accident did not arise out of and in the course of employment.</p>

Appeal by the defendants, Richard Hellmann, Inc., and another, from an award and order of the State Industria.1 Commission, entered in the New York office of said Commission on the 23d day of September, 1920.

Appeal by the defendant, Gustavus Baylies, Jr., 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 17th day of January, 1921, which denied a motion by defendant (appearing specially) to vacate the alimony provision of a decree of divorce made July 23, 1889, for support of the wife and son, with leave in case of defendant’s default, to enter a money judgment therefor; also to vacate a money…

Appeal by the petitioner, Frederick A. Kimball, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 3d day of March, 1921, denying petitioner’s motion for a writ of mandamus to require the county treasurer of Nassau county to pay to the treasurer of the village of Garden City $9,425.80, or the proportion due to that village from the fifty per centum of the State income tax collections under…

Appeal by the Beekman Family Association and others from an order of the Surrogate’s Court of the county of Nassau entered in the office of the clerk of said court on December 31, 1920, affirming an order entered in said clerk’s office January 20, 1920, fixing the transfer tax on the estate of Gerard Beekman, deceased.

<p>Deeds—conveyance to low-water mark of navigable water with reservation of fishery with right to use beach — reservation construed not to give right in upland.</p> <p>A reservation in a deed which purported to grant lands to low-water mark in the county of Richmond, of “ the fishery and the right to use the beach in front of said premises for all fishing purposes,” construed not to give to the grantor or his successors in title any rights in the upland above high-water mark.</p> <p>The word " fishery ” cannot be construed as giving any right in the upland.</p>

<p>Municipal corporations — action to forfeit contract to construct subway for electric lines and to recover money due thereunder — contract providing that defendant might retain ten per cent of cash capital invested in construction and recoup for deficit for prior years — failure of defendant to make reports —■ construction paid for in stock and bonds — contract valid — plaintiff, after acquiescing, estopped from claiming forfeiture for failure to make reports — failure of defendant to make itemized report of construction does not preclude right to retain ten per cent — defendant not entitled to ten per cent prior to settlement with contractors — construction account; improperly credited with sale of part of system.</p> <p>In an action by the city of New York for the forfeiture of the rights of the defendant under certain contracts and for a judgment for moneys alleged to be due to the plaintiff it appeared that the defendant was to construct subways for electric lines and to lease the space therein, with the right to retain profits to the extent of ten per cent per annum “ upon the actual cash capital invested by it in providing, constructing and equipping such subways,” that the defendant was required to account to the plaintiff for any surplus profits over ten per' cent, but was also entitled to deduct from said surplus profits for any year any deficit with respect to the ten per cent of profits which it was entitled to deduct for previous years; that said contract was authorized under chapter 499 of the Laws of 1885 and ratified by chapter 716 of the Laws of 1887; that it required the defendant to keep books of account showing in detail all receipts and expenditures and to make and return a report thereon to the comptroller of the city on the first day of October of each year; that the only reports, made during the years 1887-1889 were in the form of letters stating that no revenue had been received and that the construction was not complete; that $40,000 only in cash was paid into the company for stock; that the construction of the subway was paid for by stock and bonds under a settlement with the contractors in 1890, and that the first formal report made by the defendant in compliance with the contract was made in 1892 on the demand of the comptroller.</p> <p>Held, that the contracts, which were ratified by the Legislature and acquiesced in by the city for many years, are valid and enforeible,</p> <p>The contracts, especially in view of the provisions thereof authorizing a recoupment by the defendant on account of deficits in profits, plainly entitled defendant to retain ten per cent of the actual cost to it of the construction of the subways and conduits, and it was not limited to ten per cent of the cash actually paid in for stock.</p> <p>The plaintiff having acquiesced in the violations of the contracts providing for the keeping of books and the making of annual reports and having required the defendant from time to time after such violations to continue construction work, is estopped from claiming a forfeiture on account of those omissions of which its representatives made no complaint until 1892, when a formal report was demanded.</p> <p>The fact that the books of the defendant do not contain an itemized statement of the cost of construction but start with the settlement in gross made with the contractors, does not preclude the defendant from retaining the ten per cent provided for in the contract.</p> <p>However, since the defendant did not pay anything for construction until 1890 and then failed to enter in its books an itemized statement of the cost of construction, and also made false reports to the comptroller that it did not receive any income for the years preceding, it was not entitled to ten per cent on the cost of construction prior to 1890.</p> <p>The amount received by the defendant for the sale of one system of subways, which did not become effective until December, 1890, should not have been deducted from the cost of construction chargeable to that year for the purpose of determining the amount which the defendant could retain under the tén per cent clause, since the defendant remained liable to account to the plaintiff for the profits from receipts for rentals for said system during that -year.</p>

Appeal by the plaintiff, Fulton Bag & Cotton Mills, 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 7th day of July, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Appeal by the defendant, The State of New York, from a judgment of the Court of Claims in favor of the plaintiff, entered in the office of the clerk of said court on the 15th day of January, 1919, with notice of intention to bring up for review the intermediate order entered in said clerk’s office on the 8th day of January, 1919, denying defendant’s motion to dismiss the amended claim, and also to bring up for review the intermediate order entered in said clerk’s office on the 8th day of January, 1919, denying defendant’s motion to vacate an order allowing an amendment of the plaintiff’s claim, and also to bring up for review the intermediate order entered in said clerk’s office on the 8th day of January, 1919, denying defendant’s motion to strike out the amendment granted by an order entered in the office of said clerk on the 27th day of November, 1918, and also from an order entered in said clerk’s office on the 27th day of November, 1918, granting plaintiff’s motion to amend its claim.</p>

<p>Public officers — death of county clerk after re-election — successor can be appointed for unexpired term only — another clerk may be appointed on first of year to hold for that year — County Law, § 160, subdivision 2, and Public Officers Law, § 42, construed and applied.</p> <p>Subdivision 2 of section 160 of the County Law; providing that when a “ vacancy ” shall occur in the office of county clerk the person appointed, as successor shall hold office until and including the last day of December succeeding the first annual election after the happening of the vacancy must be read in connection with section 42 of the Public Officers Law and the “ vacancy ” referred to in the County Law construed to mean a vacancy occurring when the term of the officer would not expire at the end of the current year.</p> <p>Accordingly, where a county clerk dies after re-election and before the commencement of his new term the Governor has power to appoint a successor for the remainder of the term only, and another person appointed at the beginning of the new term becomes the legal county clerk and entitled to the books, records and papers appertaining to the office.</p>

Appeal by the defendant, Northern New York Coal Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Jefferson on the 22d day of December, 1920, granting plaintiff’s motion for an order to change the place of trial from the county of Jefferson to the county of Onondaga.

Appeal by William H. Schick and others from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said surrogate on the 18th day of March, 1920, denying probate of the will of Frederick Wolf, deceased, and also from an order entered in said surrogate’s office on or about the same date, denying appellants’ motion for a new trial made upon the minutes.

Appeal by the defendants, William F. Cassedy and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 20th day of September, 1920, upon the decision of the court rendered after a trial, at the Orange Special Term overruling said defendants’ demurrer to the complaint.

Appeal by the defendant, Charles M. Maxfield, 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 29th day of June, 1920, on the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

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 20th day of November, 1919, on a verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes, and granting plaintiff’s motion for an…

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

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

Appeal by the plaintiff, Dexter & Carpenter, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of January, 1921, resettling an order entered in said clerk’s office on the 20th day of December, 1920, vacating a warrant of attachment against the property of the defendant and refusing to permit to be read or considered certain affidavits permitted to be served and filed by…

Appeal by the defendants, Distinctive Jewelry Co., Inc., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1921, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendants, Firth Carpet Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 28th day of April, 1920.

<p>Appeal by the defendants, Mallory Steamship Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 20th day of October, 1920.</p>

Appeal by the defendants, Hoefler Ice Cream Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 13th day of October 1920.

Appeal by the defendants, Arthur M. Torrey and another, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Tioga on the 22d day of December, 4920, granting judgment for plaintiff on the pleadings, and also from the judgment entered in said clerk’s office on the same day in favor of the plaintiff.

Appeal by the relator, Mary A. O’Connor, from an order of the Supreme Court, made at the Erie Special Term and pntered in the office of the clerk of the county of Erie on the 23d day of November, 1920, denying a writ of mandamus to reinstate the relator as principal of public school No. 25 of the city of Buffalo.

<p>Appeal by the defendant, Frank L. Stewart, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 26th day of July, 1917, upon the verdict of a jury rendered by direction of the court after a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 23d day of July, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, United States Housing Corporation, Inc., from an order of the County Court of Jefferson county, entered in the office of the clerk of said county on the 31st day of December, 1920, dismissing the petition of the petitioner in summary proceedings for the removal of the defendant from certain premises.</p>

<p>Workmen’s Compensation Law — admiralty and maritime contracts— chauffeur injured while loading truck from barge not engaged in work of maritime nature.</p> <p>A chauffeur driving a motor truck for 'his employer, an off company, was, not engaged in work of a maritime nature, where it appeared that after he had loaded his truck from a barge lying at a dock in New York city he stood on the side of the barge for the purpose of making his load safe; that the brake on the truck was released, and that the truck ran back catching the chauffeur’s leg between the tail of the truck and the side of the barge inflicting the injury that ultimately caused his death.</p> <p>If this were a tort case the initial wrong, if there was a wrong, consisted in releasing the brake on the truck and no tort or wrongful act was committed on the barge, and the fact that the decedent was standing on the side of the barge while securing his load was merely an incident and insufficient to confer jurisdiction on a court of admiralty.</p> <p>Woodward, J., dissents.</p>

<p>Crimes — endangering morals of child — City Court of Plattsburgh does, not have exclusive jurisdiction — crime charged not equivalent to “ cruelty ” to children within meaning of Code of Criminal Procedure, § 66 — question of exclusive jurisdiction cannot be raised by demurrer.</p> <p>The City Court of Plattsburgh is possessed of all the powers conferred upon Courts of Special Sessions and has exclusive jurisdiction of such misdemeanors only as Courts of Special Sessions have.</p> <p>Section 56 of the Code of Criminal Procedure, which confers exclusive jurisdiction on Courts of Special Sessions to hear and determine certain enumerated misdemeanors, does not enumerate the crime of endangering the morals of a child as defined by section 483 of the Penal Law, and, therefore, the City Court of Plattsburgh does not have exclusive jurisdiction of the prosecution for a violation of that section.</p> <p>The impairment of the morals of a child condemned by section 483 of the Penal Law cannot be characterized as cruelty to such child under subdivision 27 of section 56 of the Code of Criminal Procedure, conferring exclusive jurisdiction on Courts of Special Sessions.</p> <p>It seems, that the question whether the Court of Special Sessions had exclusive jurisdiction of the crime charged in the indictment could not be raised by demurrer.</p>

Certiorari issued out of the Supreme Court and attested on the 11th day of January, 1921, directed to James A. Wendell, 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 concerning the assessment and penalties levied upon the income of the petitioner for the year 1919, pursuant to article 16 of the Tax Law.

Appeal by the defendant, The City of Albany, from a judgment of the County Court of Albarfy county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 26th day of July, 1920, upon the verdict of a jury for $120, and also from an order entered in said clerk’s office on or about the same day denying said defendant’s motion tb set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, William H. Barrett, as president of the Adams Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 22d day of October, 1920, upon the verdict of a jury rendered by direc-' tion of the court, and also from the order directing a verdict to be found by the jury in favor of the plaintiff and from ‘the order refusing to direct a verdict in favor of the…

Appeal by the plaintiff, Oliver Cabana, Jr., 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 1st day of July, 1920, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the defendant, The City of Rochester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of June, 1920, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the same day, as resettled by an order entered in said clerk’s office on the 30th day of June, 1920, denying defendant’s motion for a new trial made upon the minutes. ■ The…

Appeal by the plaintiff, Oscar Daniels Company, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 4th day of January, 1919, upon the dismissal of the complaint in part by direction of the court at the close of the plaintiff’s case, and upon the verdict of a jury in part in its favor, and also from an. order entered in said clerk’s office on the 7th day of January, 1919, denying plaintiff’s motion to set aside…

Appeal by the Comptroller of the City of New York 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 comity of New York on the 15th day of April, 1920, resettling an order of said court dated March 20, 1920, directing payment to Merle I. St. John, as receiver, of an award made to unknown owners in this proceeding, with interest.

Appeal by the plaintiff, Harry Rein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1921, denying plaintiff’s motion for judgment on the pleadings and sustaining defendant’s demurrer to the complaint.

Appeal by the plaintiff, Harry Rein, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of January, 1921, denying plaintiff’s motion for* judgment on the pleadings and sustaining defendant’s demurrer to the complaint.

<p>Appeal from judgment of the Supreme Court, entered in the office of the clerk of New York county on the 15th day of June, 1920, dismissing complaint at close of ease.</p>

<p>Motions to confirm report of referee, for hearing of exceptions to said report, and to fix referee’s fees, etc.</p>

<p>Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on the 18th day of January, 1921.</p>

Appeal by defendant from an interlocutory judgment, entered in the office of the clerk of the county of Westchester on the 2d day of March, 1920, upon the decision of the court rendered after trial at the Westchester Special Term, which judgment establishes the existence of a copartnership between defendant and plaintiff’s intestate, and directs an accounting.

Appeal by defendant from a judgment of the County Court of Queens county, rendered on May 31, 1912, convicting him of the crime of arson in the second degree, and also from an order, entered in the office of the clerk of said county on October 28, 1912, denying his motion for a new trial.

<p>Gas and electricity — application by gas company for increased rates — error in determination affecting rate base — determination annulled — weight of evidence for Commission.</p>

<p>Disciplinary proceedings instituted by the Erie County Bar Association.</p>

<p>Pleadings — demurrer to complaint for insufficiency of facts — demurrer overruled with leave to withdraw demurrer and answer.</p>

<p>Appeal from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk thereof on the 14th day of June, 1920, affirming a judgment of the City Court of the City of New York, entered upon a verdict directed for the plaintiff, and affirming an order of the City Court denying plaintiff’s motion for a new trial, and from the judgment of the City Court thereupon entered.</p>

<p>Sales — delivery — modification of contract — default of defendant.</p>

<p>Appeal from order of the Supreme Court, New York county, directing that the defendant Sefton Tranter be examined before trial.</p>

Appeal by defendant from so much of an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on the 2d day of March, 1921, granting in part defendant’s motion to vacate order for examination before trial, as requires the production upon such examination of books and papers containing entrance of or reference to the matters made the subject of examination by the fourth paragraph of the original order for examination.

<p>Trial — preference — notice of preference to be served with notice of trial — rules should be strictly observed.</p>

<p>Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1920, upon the verdict of a jury for $10,000 in an action to recover damages for negligent injury, and also from an order entered in said clerk’s office on the 12th day of July, 1920, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Motion for reargument of appeal from judgment and order of the Supreme Court, New York county. (See 195 App. Div. 870.)</p>

Appeal by the plaintiff, Sarah Levy, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bings on the 13th day of May, 1920, on the verdict of a jury, and also from an order, entered in said clerk’s office on the 27th day of Movember, 1920, denying plaintiff’s motion for a new trial made upon the minutes.