Volume 197 — New York Appellate Division Reports

Appeal by the plaintiff, David W. Myers, 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 December, 1920, as resettled by an order entered in said clerk's office on the 30th day of December, 1920, dismissing the complaint on defendant’s motion for judgment on the pleadings consisting of the complaint and answer, and also from the judgment dismissing the complaint entered…

Appeal by the defendant, The Board of Education of the City of New York, from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1921, granting relator’s motion for a peremptory writ of mandamus requiring respondent to return or pay over to the relator $16,000, deposited by him with a bid for construction work, for which it invited proposals, and interest thereon.

Appeal by the defendant, Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1920, on the verdict of a jury for SI,500, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by Caroline McCoon Gunther 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 7th day of January, 1921, appointing Robert Lee Morrell sole trustee of certain trusts created by the last will and testament of Cornelius- McCoon, deceased, as successor to Frederick W. Gunther, deceased, sole trustee, and also from an order entered in said clerk’s office on the 5th day of…

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

<p>Attorney and client — suspension of attorney for six months for failure to render substantial service under contract of retainer and to repay clients amount agreed if unsuccessful •—• power of court to investigate contracts between attorneys and clients relating to professional services.</p> <p>Attorney at law suspended for six months where it appeared that after receiving payments under agreements to procure the reclassification of men subject to the United States Selective Service Law and to return the amounts received if unsuccessful, said attorney rendered no material service to his clients and failed to repay to them the amount agreed.</p> <p>While attorneys at law are privileged to make contracts with their clients for remuneration for services, yet the court is vested with a supervisory control over its officers and is authorized to investigate dealings between those officers and their clients to see that the conduct of its officers is fair, honest and straightforward and that clients are neither deceived nor defrauded in their relations with their attorneys, and while the court does not summarily or by disciplinary proceedings investigate ordinary business contracts made by attorneys, yet when the basis of the contract is the professional relation of attorney and client, its jurisdiction is plenary and ample.</p>

<p>Attorney and client — attorney suspended from practice for one year for omitting to inform clients of collections and converting same to his own use — age and previous good character of attorney considered.</p> <p>An attorney at law, guilty of misconduct in failing to inform Ms clients of the amounts collected for them and in converting part of said amounts to Ms own use, is sufficiently punished by suspending Mm from practice ■ for one year, where it appears that he is seventy years of age and has been long at the bar without previous charges having been made against him.</p>

<p>Appeal by the plaintiff, George Hadjopoulos, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of March, 1921, granting defendant’s motion to retax costs and directing that costs heretofore taxed be modified.</p>

<p>Attachment — discharge after final judgment — undertaking required.</p> <p>Since the amendment of sections 687 and 688 of the Code of Civil Procedure, by chapter 507 of the Laws of 1906, the defendant, in order to secure the discharge of an attachment after final judgment, must file the same ' undertaking as where application is made before final judgment, and in addition thereto he must give the security required to perfect an appeal to the Court of Appeals from a final judgment, of the same amount or to the same effect, and to stay the execution thereof.</p>

Appeal by the defendant, Thomas B. Yuille, 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 13th day of May, 1920, on the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 19th 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 plaintiff, American Merchant Marine Insurance 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 29th day of April, 1921, granting a motion of the respondent, a subsequent attaching creditor, to vacate plaintiff’s warrant of attachment.

Appeal by the defendants, Stampagraph 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 28th day of July, 1920, on the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Bryant Park 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 9th day of December, 1919, on the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of January, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, Andrew Houtman, from a judgment and order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 13th day of October, 1920, affirming the conviction of the defendant of being a disorderly person, in faffing to provide adequately for his wife and child, rendered in the Domestic Relations Court, Borough of Manhattan, City of New York, First Division, on the 18th day of…

Appeal by the plaintiff, Palisade Curtain Company, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of January, 1921, on the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of January, 1921, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, New York Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of December, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiffs, Max Maas and others, 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 9th day of December, 1920, as resettled by an order entered in said clerk’s office on the 2d day of March, 1921, as denies plaintiffs’ motion to strike out and to make definite and certain various allegations and matters set forth and recited in defendant’s amended answer.

Appeal by the defendant, Samuel Meltzer, 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 5th day of November, 1920, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, The College of the City of New York, from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of said Appellate Term on or about the 10th day of February, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Seventh District, in favor of the plaintiff.</p>

Appeal by the plaintiff, Albert Haessig, 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 6th day of April, 1921, 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 29th day of March, 1921, denying plaintiff’s motion to set aside the dismissal and to go to the jury on certain…

Appeal by the defendant, New York Hippodrome Corporation, from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 15th day of November, 1920, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff, and the order denying defendant’s motion to set aside the judgment .and for a new trial made upon…

Appeal by the plaintiff, Mortimer B. Foster, 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 February, 1921, denying plaintiff's motion for a retaxation of costs.

Appeal by the plaintiff, Frank J. Foote, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 19th day of February, 1921, on the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of February, 1921, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John W. Shea, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 12th day of December, 1919, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1919, denying plaintiff’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 12th day of February, 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 of 1919 against the petitioner under article 16 of the Tax Law, and in revising said account.

Appeal by John Murphy, husband of Hannah Egan Murphy, deceased, and one of the persons named as devisee in her last will and testament, from that part of an order of the Surrogate’s Court of Onondaga county, entered in the office of said surrogate on the 16th day of October, 1920, directing the county treasurer of said county to pay over to the executor herein the sum of $5,476.05, proceeds of the sale of real property of the deceased deposited with said county treasurer,…

<p>Insurance — accident insurance •— injuries from external, violent and accidental means — rupture received by mail clerk while performing customary work not within policy,</p> <p>A railway mail clerk who, while engaged in his customary work of piling mail sacks in a ear in the usual and ordinary way, suffered a rupture, did not receive an injury within the meaning of a policy of insurance against injuries through external, violent and accidental means.</p>

Appeal by the defendant, Merchants National Bank, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 11th day of November, 1920, upon the decision of the court rendered after a trial at the Chautauqua Special Term, overruling the demurrer of the defendant to the amended complaint.

<p>Appeal by the defendant, Mike Cook, from a judgment of the County Court of Cattaraugus county, rendered on the 18th day of October, 1920, convicting him of violating the Liquor Tax Law of the State of New York.</p>

<p>Pleadings — bill of particulars — action on promissory notes — counterclaim on breach of contract of sale of goods — bill of particulars stating that orders for goods were in writing — letters referring to oral orders admissible.</p> <p>In an action on promissory notes the defendant interposed a counterclaim based on a breach of contract of the sale of goods and in a bill of particulars furnished by him stated that the orders for the goods were in writing. Held, that it was error to refuse to admit in evidence letters written by the defendant to the plaintiff which referred to oral orders given theretofore, and which were repeated in the letters, and to refuse to permit the defendant to testify to the oral orders on the ground that he was limited by his bill of particulars to written orders.</p>

Appeal by Jesse S. Phillips, as Superintendent of Insurance, 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 July, 1920, denying said appellant’s motion to dismiss and disallow the claim of Claude M. Badgley.

<p>Appeal by the defendant, L. B. Foster Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1920, on the verdict of a jury, 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>

<p>Appeal by Hazel Simons Truitt from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of August, 1920, awarding the custody of the above-named infant to Myles W. Standish.</p>

<p>False imprisonment — liability of store owner for acts of manager — manager did not act within his authority in arresting plaintiff — owner not responsible — evidence not showing that owner was informed of situation and took no action in relation thereto.</p> <p>The defendant, the owner of a store, is not liable to respond in damages to the plaintiff for false imprisonment, where it appears that during the absence of the defendant, the manager, solely upon suspicion that the plaintiff had stolen a handbag, accused her of the theft, forbade her to leave the store, threatened to search her and sent for the police, for the manager was not acting within the scope of his authority.</p> <p>It cannot be presumed that a master, by intrusting his servant with his property, and conferring power upon him to transact his business, thereby authorizes him to do any act for its protection that he could not lawfully do himself if present; the defendant would not if he had been present have been justified in arresting and detaining the plaintiff.</p> <p>Evidence that some one telephoned or was directed to telephone the defendant that there was a woman in the store who would not leave, does not show that the defendant was informed of the situation and took no action in relation thereto, and the verdict for the plaintiff cannot be justified on that ground.</p> <p>Kelly, J., dissents.</p>

Appeal by the defendant, California Casing Company, Incorporated, 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 December, 1920, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Robert S. Bickley, 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 19th day of November, 1920 upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of December, 1920, denying defendant’s motion for a new trial made upon the minutes.

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

Appeal by the plaintiff, J. Herbert Bate, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 4th day of May, 1921, permitting a receiver, upon his application, to be made a party to a foreclosure action, and directing that the summons be amended accordingly, and giving the receiver the right to interpose an answer.

<p>Motion for leave to appeal to the Court of Appeals from an order of this court, filed on April 22, 1921, affirming a judgment in favor of plaintiff, entered in the office of the clerk of the county of Suffolk on the 14th day of October, 1919, upon the verdict of a jury, and an order denying defendants’ motion for a new trial, in an action to recover damages for the wrongful destruction of shrubs and other vegetation planted on plaintiff’s property, alleged to have been caused by reason of defendants’ permitting a cut or opening to be made through certain sand dunes lying at the foot of Cooper’s Neck lane in the village of Southampton, and forming a natural barrier against the ocean tides.</p>

Appeal by the defendant, Joseph Summergrade, 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 February, 1921, granting plaintiff’s motion to stay the trial of an action brought by the defendant in the Municipal Court of the City of New York Borough of Manhattan, First District, upon the ground that this, action was begun prior to the Municipal Court action and involved…

<p>Workmen’s Compensation Law — when charitable corporation maintaining cemetery is engaged in business for pecuniary gain — gravedigger engaged in hazardous employment — action by gravedigger to recover for injuries received in making excavation for monument foundation — contributory negligence and assumption of risk no defense — evidence presenting question for jury as to defendant’s negligence.</p> <p>A charitable corporation which maintains a cemetery and which sells burial privileges and devotes the money so raised to the expenses of running the cemetery, and for religious and educational purposes, and for charity consisting primarily in providing graves for those unable to pay for them, is engaged in a business or occupation for pecuniary gain within the meaning of subdivision 5 of section 3 of the Workmen’s Compensation Law.</p> <p>A gravedigger, working for said corporation, who was injured while making an excavation for a monument foundation was engaged in a hazardous employment within the meaning of section 2, group 13, of the Workmen’s Compensation Law.</p> <p>Accordingly, in an action against the corporation it could not interpose the defense of contributory negligence and assumption -of risk, for it had not secured compensation for its employees as provided in section 50 of the Workmen’s Compensation Law.</p> <p>It appeared that the plaintiff was injured while excavating for a foundation for a monument by the caving in of the sides of the excavation, that shortly before the injury defendant’s superintendent examined the excavation and that it was the custom, sometimes, to shore up excavations of the depth oí the one in which the plaintiff was injured. On all the evidence, held, that a question as to defendant’s negligence in omitting. to provide for shoring up the work was presented for the jury.</p>

Appeal by the defendant, Roland R. Conklin, 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 25th day of January, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1921, denying defendant’s motion for a new trial made upon the minutes.'

<p>Wills — construction — power of appointment-—property situated in New York held under deed of trust for benefit of child of trustee for life with power in trustee to designate remainderman — power exercised by devise of all of trustee’s property to child for life and remainder to third persons — Real Property Law, § 176, applied — power not exercised as to property situated in New Jersey.</p> <p>Property situate in New York was transferred to the testator in trust for the benefit of his daughter during her life with remainder upon her death to the trustee if then alive; if not, to those whom he might designate in his will or, in. default of such designation, to his heirs. The trustee, who was possessed of other property, devised all his property in trust for the benefit of his daughter with remainder over to third persons (194 App. Div. 769).</p> <p>Held, that under section 176 of the Real Property Law, providing that “ Real property embraced in a power to devise passes by a will purporting to convey all the real property of the testator, unless the intent that the will is not to operate as an execution of the power, appears, either expressly or by necessary implication,” it is only where the will permits of no other interpretation that it can be said that the intent that the will is not to operate as an execution of the power appears by necessary implication.</p> <p>The provision in the will for a trust for the life of the child is necessarily confined in its operation to the testator’s own property and the power of appointment operates only on the remainder in the trust property after the child’s death.</p> <p>The necessary implication of intent not to exercise the power must appear in the will itself and resort cannot be had to extraneous instruments to determine the question, and so the fact that at the time the will was executed there was in existence an agreement purporting to change the original trust agreement so as to nullify the portion of that agreement reserving a power of appointment is not controlling.</p> <p>In reference to that portion of the trust property situated in New Jersey, it must be presumed that the common law prevails in New Jersey and under the rules thereof a power of appointment is not competently exercised unless the will expresses an intention to exercise it, although it is not necessary that the power be referred to; accordingly the power was not exercised as to the New Jersey property and it did not pass to the remaindermen but under the deed of trust vested in the heir at law.</p>

Appeal by the defendants, Edgar M. Wightman and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oswego on the 14th day of October, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office, on the 7th day of October, 1920, denying defendants’ motion, for a new trial made upon the minutes,

Appeal by the plaintiff, Clara hf. Cramer, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 11th day of August, 1919, dismissing the complaint on the merits.

Appeal by the defendant, The Monroe Binder Board 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 Niagara on the 24th day of February, 1921, denying defendant’s motion to set aside the summons and complaint.

Appeal by the defendant, Overseas Shipping Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of November, 1920, on 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 for a new trial made upon the minutes.

Appeal by the People of the State óf New York 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 14th day of October, 1920, sustaining writs of habeas corpus and discharging relators from custody.

Appeal by the plaintiff, Sarah G. Thompson, 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 Suffolk on the 3d day of March, 1921, denying plaintiff’s motion to punish the defendant for contempt for failure to pay alimony.

<p>Physicians and surgeons — action to recover for injuries received from X-ray —• defendant’s proven and undisputed qualifications as physician improperly submitted to jury — sores caused by use of X-ray might have resulted from hypersensitiveness of patient or negligence — improper for court to charge that existence of sores was evidence of negligence.</p> <p>In an action against a physician to recover damages for injuries alleged to have been caused by negligent application of the X-ray treatment in which defendant’s qualifications as a physician were proven and undisputed it was improper to submit defendant’s want of due qualifications to the jury as a possible specification of negligence.</p> <p>It was error also for the court to charge the jury that the fact that sores resulted from the application of the X-ray treatment by the defendant was evidence of negligence, since it appeared that a few people are super-sensitive to X-ray treatment, that the treatment will burn such people although properly applied, and that there is no way of knowing the disposition of the patient in advance of the test of actual treatment and its results, and since it appeared, also, that the sores might have been caused by improper application of the treatment or by applying a second treatment to a hypersensitive patient where, after the first application, there appeared a redness or soreness in the parts to which the application had been made.</p>

Appeal by the defendant, Philip Salzberg, 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 December, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of January, 1921., denying defendant’s motion for a new trial made upon the minutes.

Reargument of an appeal by the defendant, Michael Russell, from a judgment of the Supreme Court, rendered • on the 8th day of March, 1920, convicting him of the crime of grand larceny in the first degree. (See 196 App. Div. 950.)

Appeal by the defendant, Ida A. Nichols, 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 November, 1919, on the verdict of a jury; also from parts of said judgment, as resettled, entered in said clerk’s office on the 24th day of February, 1920; also from an order entered in said clerk’s office on the 19th day of November, 1919, vacating a judgment entered in said clerk’s office…

Appeal by the defendant, New York Central 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 Westchester on the 2d day of July, 1918, upon the decision of the court rendered after a trial at the Rockland Special Term in an action of ejectment in which plaintiff was adjudged owner in fee of the premises set forth in the complaint, with $6,088.18 as damages for withholding the property.

Appeal by the plaintiff, Rosanna Frost, 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 7th day of April, 1920, upon the decision of the court rendered after a trial at the Nassau Special Term.

Appeal by the contestant, Mary Louise Gaffken, from a decree of the Surrogate's Court of Kings county, entered in the office of the clerk of said court on the 21st day of February, 1921, admitting to probate the paper propounded as the last will and testament of Arthur Henry Gaffken.

• Appeal by the plaintiff, James 0. Robinson, from an order of the Supreme Court, made at the Richmond Special Term and entered in the office of the clerk of the county of Richmond on the 26th day of June, 1920, denying plaintiff’s motion for judgment on the pleadings in a suit to enjoin the maintenance of a fence and other obstructions in an alleged right of way in the fourth ward of the borough of Richmond (formerly the town of Southfield).

Appeal by the defendant, Ignatz Spielberger, 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 November, 1920, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, Harriet C. Ginsburg, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 20th day of April, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, Grace Church of Millbrook, 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 5th day of April, 1921, denying defendant’s motion for judgment on the pleadings dismissing the complaint.</p>

' Appeal by the defendant, The Press Publishing 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 26th day of March, 1921, denying defendant’s motion to strike from the complaint certain allegations as redundant.

Appeal by the defendant, Isidor Reichenthaler, 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 10th day of January, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the plaintiff, Mary L. Schermerhorn, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 26 th day of June, 1920, as resettled by an order, made at the Schenectady Special Term, and entered in said clerk’s office on the 15th day of January, 1921, denying plaintiff’s motion for alimony and counsel fees.

Appeal by the defendants, George Baldwin 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 Hamilton on the 24th day of January, 1920, upon the decision of the. court rendered after a trial without a jury at the Fulton county Trial Term.

Appeal by the plaintiff, Rural Publishing Company, Inc., from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 10th day of December, 1920, affirming a final order in summary proceedings rendered in the Municipal Court of the City of New York, Borough of Manhattan, Third District, in favor of the defendant.

Appeal by the defendant, Max Cohen, 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 8th day of April, 1921, overruling defendant’s demurrer to the complaint.

<p>Appeal by the defendants, Alice Lee Post 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 New York on the 6th day of April, 1920, on the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by George W. Wickersham and others from a decree of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 15th day of April, 1920, as resettled by a decree entered in said surrogate’s office on the 14th day of May, 1920, on the verdict of a jury adjudging that two papers offered for probate as the last will and testament and codicil thereto of Rosa E. Spang' were executed by her at a time when she did not have testamentary…

<p>Corporations — membership corporations — Musical Mutual Protective Union, incorporated as membership corporation, affiliated with American Federation of Musicians, an unincorporated association, is subject to laws of this State •—■ internal management of corporation not subject to control of unincorporated association — action of board of directors of corporation in suspending president not subject to review by president of unincorporated association —■ action of president of unincorporated association in suspending members of board of directors of corporation unjustified — said members had right to resort to courts — injunction, order contained sufficient recital of grounds on which granted.</p> <p>The plaintiffs are a majority of the board of directors -of the Musical Mutual Protective Union, a membership corporation organized under the laws of this State, which is affiliated with the American Federation of Musicians, an unincorporated association having members in different States. In the by-laws of the Protective Union appeal from any decision of the board of directors to the executive board and the convention of the federation is provided for.</p> <p>Held, that while the primary purpose of the federation is the formation of unions not incorporated under the laws of any State, this does not prevent a local union becoming incorporated and thereafter affiliating with the federation, but if such corporation is accepted by the federation the acceptance is subject to the laws of the State under which the local union is incorporated.</p> <p>The directors of the union having suspended its president under the power conferred on them by the by-laws of the union and having given notice to kirn of the charges and a time and place for hearing, they were justified in disregarding an order issued by the president of the federation, called an emergency order, staying all proceedings for the presentation and hearing of charges against the president of the union, enjoining them from acting as directors of the union, and generally from taking any action against its president.</p> <p>The power to regulate the internal affairs of the union is given under the laws of this State and is not subject to interference by the federation, and the fact that the union was affiliated with the federation did not give the latter, nor its president, any jurisdiction or power to interfere with the internal management of the union.</p> <p>The right to suspend the president of the union, given to the majority of the board of directors thereof under the by-laws which were passed in pursuance of the laws of this State, is not subject to review by the president of the federation, and the president of the union having been suspended neither the federation nor its president had the right to reinstate him and enjoin the members from interfering with his acting as president nor the right to enjoin the trial of the charges.</p> <p>The remedy of the suspended president, was through the union and its by-laws and not by appeal to the federation, except so far as the right to appeal was given by the by-laws.</p> <p>The president of the federation exceeded his powers in expelling the plaintiffs therefrom and notifying employers of musicians of the expulsion, since that power lies with the executive board of the federation, and the injunction restraining the officers of the federation and of the union from preventing the plaintiffs from exercising their rights as members of the union and restraining the president of the union from acting as such was properly granted. Said order of expulsion cannot be justified under the emergency clause of the constitution and by-laws of the federation in which certain powers are given to the president in emergencies, for that clause will not be construed by the courts to give him any further powers than are necessary to preserve the status quo, or to protect the federation till action can be taken by the executive council or the federation in convention.</p> <p>The plaintiffs had a right to resort to the courts since they were expelled without hearing and deprived of their means of livelihood, without any opportunity for an immediate and prompt review of the action of the president of the federation.</p> <p>The order to show cause and the temporary injunction did not purport to suspend the president of the union but merely to give effect to the suspension legally made by the board of directors, and to restrain the president from acting in contravention thereof.</p> <p>The said orders sufficiently state the grounds on which they were granted as required by section 610 of the Code of Civil Procedure.</p>

Appeal by the defendant, Joseph N. Weber, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1921, granting plaintiffs’ motion for a temporary injunction.

Appeal by the plaintiff, Waitt Construction Company, Inc., from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 10th day of February, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the defendant.

<p>Appeal by the defendants, Clare A. Pickard and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chautauqua on the 9th day of September, 1920, on the report of a referee appointed to take and state the accounts of the defendants.</p>

<p>Appeal by the defendant, Anna Ahearn McDermott, individually and as administratrix, 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 9th day of March, 1921, denying defendant’s motion to vacate and set aside a prior ex parte order, directing the service of the summons herein upon her by publication, she being a resident of the State of New Jersey, and to declare such attempted service to be null and void.</p>

<p>Sales — action to recover on acceptance of time draft given for purchase of goods to be delivered — evidence examined — question for jury as to breach of contract and waiver — contract construed not to require buyer to call for goods at seller’s place of business — seller could not dispose of part of goods before draft due and recover as for full performance — exception to refusal to dismiss complaint at close of plaintiff’s case not available on appeal where motion not renewed at close of evidence.</p> <p>In an action to recover upon the acceptance by the defendant of a time draft which recited that the obligation of the acceptor arose out of the purchase of goods from the plaintiff, in which it appeared that the contract for the purchase of the goods provided for “ Delivery at New York:</p> <p>When called for,” and that the price was “ f. o. .b. New York,” evidence examined, and held, that a question of fact was presented as to whether the defendant refused to take the goods and if so whether that refusal was not waived and whether when he demanded the delivery of a part of the goods he consented that delivery might be deferred until it would be convenient for the plaintiff to make it, and whether the plaintiff’s failure to make the delivery was not owing to the defendant’s refusal to comply with plaintiff’s unwarranted demand for cash payment to apply on the contract.</p> <p>It was error to direct a verdict for the plaintiff on the theory that there was no obligation on the part of the plaintiff to deliver any of the goods until the defendant called at its place of business, and was prepared to receive delivery thereof, for the reasonable construction of the contract is that the defendant had the option to designate the place of delivery within the city, whether to himself at his place of business or to a carrier for transportation elsewhere, or otherwise, and the words “ When called for ” were intended to obligate the seller to hold the goods till the defendant desired delivery thereof and gave it notice of the place, and the defendant was not obliged to call for the goods at the plaintiff’s place of business.</p> <p>The action being between the parties to the acceptance and the acceptance having been expressly predicated on the contract, the case is the same in principle as an action by a seller for the purchase price of goods, and it seems that the plaintiff did not have the right to dispose of part of the goods sold to the defendant before the draft became due and recover on ■ the contract as for full performance of its obligations thereunder.</p> <p>However, while the defendant moved for a dismissal of the complaint at the close of the plaintiff’s case and excepted to a denial of his motion, he did not renew the motion at the close of the evidence and, therefore, the exception is no longer available and cannot be made the basis of a decision by the Appellate Division.</p>

Appeal by the defendant, the Queens County Water 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 Queens on the 3d day of December, 1920, granting relator’s application for the issuance of a peremptory writ of mandamus to compel the Queens County Water Company to install forthwith at its own expense twenty-three new fire hydrants (also a new six-inch main in Bay Seventeenth street, for a…

Appeal by the defendants, Roy H. MacMasters 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 23d day of March, 1921, granting plaintiff’s motion for judgment on the pleadings.

<p>Executors and administrators — actions .against — costs may be awarded by Appellate Division on reversal of judgment in favor of executors — Code of Civil Procedure, §§ 1836 and 1836, applied—■ action unreasonably defended — waiver by executors of certificate of facts by not presenting defense on original settlement of order awarding costs.</p> <p>The Appellate Division on the reversal of a judgment against executors in cases where such court has the power to revérse a judgment and make new findings and direct the entry of a judgment in favor of the other party, takes the place of the trial court and may decide whether or not the executors unreasonably resisted or neglected to pay plaintiff’s claim, and whether or not they should be compelled to pay the costs of the trial individually as provided in sections 1835 and 1836 of the Code of Civil Procedure.</p> <p>Said sections of the Code do not apply to or preclude an award of costs against executors on an appeal.</p> <p>Executors unreasonably defend a claim based on a judgment, where it appears that their defense was not on the merits but solely on the theory that the plaintiff lost the benefit of a judgment recovered by default against all of the defendants on a joint liability, upon such judgment being opened as to one of the defendants and the complaint dismissed as against him, and that thereupon the judgment became void and unenforcible as against the other defendants.</p> <p>The executors by not presenting the aforesaid defense on the original settlement of the order by the Appellate Division awarding costs waived any point with respect to whether a formal certificate of the facts by the Appellate Division is required but did not waive the point that such certificate must be procured from the trial justice.</p>

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

Appeal by Samuel J. Mashkowitz from an order of the County Court of Queens county, entered in the office of the clerk of the county of Queens on the 14th day of December, 1920, denying appellant’s motion to compel the plaintiff and the referee herein to pay and return to him $960 heretofore paid by him as a deposit on the purchase of certain real property sold in the above-entitled action, and also from an order entered in said clerk’s office on the 27th day of April, 1921,…

Appeal by the plaintiff, Andrew Wagner, as administrator, etc., from that part of a judgment of the Supreme Court in favor of the defendant Hagerty Motor Trucking Company, entered in the office of the clerk of the county of Kings on the 21st day of December, 1920, upon the verdict of a jury, and from that part of said judgment entered upon an order setting aside a verdict in favor of plaintiff and against the defendant Rodgers & Hagerty, Inc., for $15,000, and also from that…

<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, Metropolitan Life Insurance Company, from a judgment of the Supreme .Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of October, 1920, upon the verdict of a jury for $55,000, and also from an order entered in said clerk’s office on the 1st 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 defendant, Annie E. Miller, 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 November, 1920, upon the decision of the court, rendered after a trial at the New York Special Term, directing that plaintiff pay to the United States Trust Company of New York, as executor of the last will and testament of Andreas M. Miller, deceased, the sum of $7,871.54, out of the balance…

Appeal by the defendants, Charles L. Craig 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 March, 1921, granting relator’s motion for a peremptory writ of mandamus.

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

Cross-appeals from a first partial and separate final decree of the Supreme Court, entered in the office of the clerk of the county of New York on the 22d day of June, 1920, upon the decision of the court rendered after a trial at the New York Special Term in condemnation proceedings.

Appeal by the relator, Empire 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 county of New York on the 29th day of October, 1920, confirming after a trial assessments for taxation upon real property and dismissing a writ of certiorari.

Appeal by the plaintiff, John Wanamaker, New York, 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 2d day of February, 1920, as dismisses the complaint as against the defendant Dock Contractor Company. Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in said clerk’s office on the same day on the verdict of a jury.

Appeal by the defendants, Berent C. Gerken 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 January, 1920, on the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 30th day of January, 1920, denying defendants’ motion for a new trial made upon the minutes.

Appeal by Mary L. Lott and others from a decree of the Surrogate’s Court of the county of Bronx dated the 10th day of December, 1919, distributing estate per capita instead of per stirpes, recognizing decedent’s nephew Michael Lynch surviving him, and from two transfer tax orders fixing five per cent tax instead of one per cent on Thomas Rowe’s share.

Appeal by the plaintiff, Archibald Charles Heaphy, 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 5th day of August, 1920, as strikes out certain paragraphs of the amended complaint.

<p>Appeal by the plaintiff, Richard Kennedy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of May, 1920, upon the dismissal of the complaint by direction of the court at the close of the case. '</p>

<p>Appeal by the defendant, George N. Taylor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1921, denying defendant’s motion for judgment on the pleadings.</p>

<p>Appeal by the defendant, C. P. Hugo Schoellkopf, from an order of the Supreme Court, made at the Ontario Special Term and entered in the office of the clerk of the county of Ontario on the 22d day of April, 1921, modifying an order granted on the 24th day of March, 1921, so that the defendant should have fifteen days.to answer, upon certain terms and conditions; also from an order made at the Erie Special Term and entered in said clerk’s office on the same day modifying the last-mentioned order on .certain terms and conditions, and also from an order made at the Monroe Special Term and entered in said clerk’s office on the 19th day of April, 1921, denying defendant’s motion for a modification of said last-mentioned order.</p>

<p>Executors and administrators — Supreme Court has jurisdiction of action on claim against decedent — Surrogate’s Court does not have exclusive jurisdiction — parent and child—estate of father liable to third person for necessaries furnished child — separation agreement no defense for necessaries furnished after death of mother.</p> <p>The Supreme Court has jurisdiction of an action against an executor on a claim against the testator which was presented to the executor but neither rejected nor accepted and approved.</p> <p>The Surrogate’s Court does hot have exclusive jurisdiction over such a cause of action.</p> <p>The estate of a father is hable for necessaries furnished by a third person to his minor child prior to the father’s death, and a separation agreement between the father and the mother providing for a pecuniary allowance for the support of the mother and child is no defense to the action for necessaries furnished after the death of the mother leaving no property.</p>

<p>Appeal by the plaintiffs, E. V. Webb and another, from so much of a judgment of the Supreme Court in their favor, entered in the office of the clerk of the county of New York on the 14th day of April, 1921, upon the verdict of a jury rendered by direction of the court, as disallows certain of their claims against the defendants.</p>

<p>Appeal by the defendant, The Manhattan Life Insurance 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 14th day of February, 1921,’ denying defendant's motion for judgment on the pleadings.</p>

<p>Appeal by the plaintiff, Sarah Watkins, 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 January, 1921, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Bills and notes — action by accommodation maker to recover from comaker on theory of contract of indemnity—-contract of indemnity not shown as matter of law — trial by consent of counterclaim for conversion where no objection to validity is made.</p> <p>In an action to recover the amount paid on a promissory note made by the plaintiff and the defendant as joint accommodation makers and predicated on an alleged agreement by the defendant to indemnify the plaintiff against liability thereon, evidence examined, and held, that it was error for the court to direct a verdict in favor of the plaintiff on the ground that as a matter of law the defendant had agreed to indemnify the plaintiff. The question of a contract of indemnity should have been left to the jury.</p> <p>The counterclaim for conversion of collateral interposed by the defendant, though it did not arise out of the same transaction set forth in the complaint and was not connected with the subject-matter of the action, must on the theory of waiver of the test be deemed to have been litigated by consent, since the plaintiff raised no objection; the verdict of the jury thereon was not against the weight of the evidence.</p>

Appeal by the plaintiff, Green River Distilling Company, from a determination and order of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New, York on the 21st day of December, 1920, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff.

Appeal by the defendants, Charles L. Craig 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 23d day of March, 1921, granting relator’s application for a writ of peremptory mandamus.

Appeal by the plaintiff, Arthur Carter Hume, 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, 1921, granting defendant’s motion to strike from the files the reply and the amended reply of the plaintiff to the answer.

Appeal by the plaintiff, Harry Stella, 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 6th day of February, 1920, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, dismissing the complaint, in so far as the same limits the plaintiff’s recovery to the sum of $214.11 instead of awarding him the sum…

Appeal by the plaintiff, George Colon & Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bronx on the 30th day, of June, 1920, as amended by an order entered in said clerk’s office on the 19th day of October, 1920, upon the decision of the court rendered after a trial at the Bronx Special Term dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, G. G. Hynson & Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1920, on the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of April, 1920, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Willits & Patterson, 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 November, 1920, resettling an order entered in said clerk’s office on the 11th day of November, 1920, granting defendant’s motion to vacate a warrant of attachment obtained by plaintiff.

<p>Appeal by the. plaintiff, Florence A. Smallwood, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1921, denying plaintiff’s motion for the appointment of a temporary receiver and to restrain defendants from receiving or paying to the individual defendants, as officers and directors of the corporation, any salary or compensation in excess of the salaries paid prior to August 1, 1916, and from transferring, assigning or otherwise disposing of or interfering with the property and assets of the defendant Smith & Nichols, Inc., except to deliver them to the said receiver, and for such other relief to which the plaintiff may be entitled.</p>

<p>Trusts — trustee charged with loss from investment of trust funds because of failure to exercise proper care.</p> <p>In a proceeding to compel a substituted trustee to account, held, that the investment by said trustee of nearly one-half of the trust fund in one mortgage on property valued at less than twice the amount of the loan and highly speculative in its nature and very difficult to rent should it become unoccupied by the mortgagor, called for more care than was exercised by the trustee, although there is nothing to impugn his good faith, and he should be charged with the amount of the loan, with interest from the time the mortgagor failed to pay interest, and upon payment thereof the property should be conveyed to him individually.</p>

Appeal by the defendants, Robert I. Man 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 Nassau on the 15th day of January, 1921, on the decision of the court rendered after a trial at the Nassau Special Term.

. Appeal by the plaintiff, Robert A. Chapman, 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 19th day of January, 1921, granting defendant’s motion for judgment on the pleadings.

Appeal by the defendant, The Board of Health of the Department of Health of the City of New York, 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 21st day of May, 1921, as directs the issuance of an alternative writ of mandamus requiring it to vacate, set aside and revoke an order of said Board of Health which revoked the permit of the relator theretofore issued by it in…

<p>Appeal by the defendant, The Board of Health of the Department of Health of the City of New York, 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 21st day of May, 1921, as directs the issuance of an alternative writ of mandamus requiring the Board of Health of the Department of Health of the City of New York to vacate, set aside and revoke an . order of said Board of Health which revoked the permit of the relator theretofore issued by it to sell milk and milk products in the city of New York.</p>

Appeal by Clementine Farr Duff from an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 31st day of January, 1921, denying the application of said appellant for an order vacating an order entered in said surrogate’s office on or about the 15th day of October, 1920, appointing Clarence Schmelzel transfer tax appraiser.

Appeal by the defendant, Galbraith Milling Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 11th day of July, 1919, upon the decision of the court rendered after a trial at the Chemung Trial and Special Term without a jury.

Appeal by the plaintiff, Bert A. Fowler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 7th day of September, 1920, upon the decision of the court rendered at a Trial and Special Term without a jury• dismissing the complaint on the merits.

Appeal by the plaintiff, The Franklin Fire Insurance Company of Philadelphia, from a determination and order of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 10th day of March, 1920, reversing a judgment of the Municipal Court, Borough, of Manhattan, First District, in favor of the plaintiff, and dismissing the complaint on the merits.

Appeal by the defendant, John Barton Payne, 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 28th day of March, 1921, which denies defendant’s motion for judgment on the pleadings on the ground that the complaint did not state a cause of action.

<p>Appeal by the defendant, William M. Barrett, 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 15th 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 22d day of November, 1920, denying said defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Arnold C. Hansen, 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, denying plaintiff’s motion to vacate .an order for his examination before trial.</p>

Appeal by Philip Dexter and another from so much of an order of the Surrogate’s Court of the county of New York, entered in the office of said surrogate on the 31st day of January, 1921, as affirms in part a prior order assessing the transfer tax and confirming the appraiser’s report.

Appeal by the plaintiff, Elliott Service 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 10th day of May, 1921, denying plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, Benjamin Haas, 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 March, 1921, adjudging the defendant guilty of contempt of court.

Appeal by the defendant, James J. Larkin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1921, denying said defendant’s motion to strike out each and every affirmative defense from the anwer-of the defendant Moran Towing and Transportation Company.

<p>Appeal by the plaintiff, John Devoy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of May, 1921, substituting as defendants one Hugh Montague “ as treasurer of an unincorporated association of more than seven persons known as the Clan Na Gael, and New York Volks-Zeitung, a domestic corporation,” in the place and stead of the defendant Walter Nelles.</p>

Appeal by Amanda Appell Evans, as executrix and trustee, from an order and decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said court on the 17th day of February, 1921, denying the motion made by said executrix and trustee for a stay of proceedings under an order of reference directed by the court and to strike out objections made to an intermediate account filed by her pursuant to an order of the court.

<p>Appeal by the defendant, Percy R. Pyne, 2d, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of November, 1920, on the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of December, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes, and also from an order denying defendant’s motion for a new trial on the ground of newly-discovered evidence.</p>

Appeal by the Comptroller of the State of New York 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 10th day of March, 1921, declaring the estate of Ellen Scully exempt from transfer tax.

Appeal by the • defendant, George Stuyvesant, from a judgment of the Court of Special Sessions of the City of New York held in and for the borough of Manhattan, rendered on the 5th day of April, 1921, convicting him of the crime of unlawfully possessing and concealing a firearm in violation of section 1897 of the Penal Law.

Appeal by the plaintiff, 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 15th day of March, 1921, denying plaintiff’s motion for a retaxation of defendant’s bill of costs, which had been taxed by a clerk in the sum of $40,497.85.

<p>Husband and wife — separation — husband not liable for alimony during violation of decree by wife in taking child out of Greater New York without consent — absolute decree of divorce in favor of wife in foreign State justifies court in relieving husband from further alimony — husband liable for alimony between time of voluntary return of wife and modification of decree.</p> <p>A husband is not liable for alimony during the time when his wife and child are absent in a foreign State in violation of a decree in separation providing that the wife should not remove the child outside of Greater-New York, except upon the written consent of the husband.</p> <p>Where the wife after a decree of separation has been granted her in this State goes to a foreign jurisdiction and there secures, on service by publication, a decree of absolute divorce, the court is justified on the application of the husband in modifying the decree of separation by eliminating the provision for the payment of alimony.</p> <p>However, while the absence of the wife and child in violation of the de'cree in separation relieved the husband from the payment of alimony, their voluntary return to the city of New York removed the bar against the wife, and her husband was Hable for alimony between the time of her return and the time of the order reheving him from the payment of alimony because of the absolute divorce.</p> <p>Page, J., dissents.</p>

Appeal by the plaintiff, Charles E. McInnes & 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 19th day of October, 1920, sustaining the defendant’s demurrer to the plaintiff’s complaint and directing a dismissal of the complaint,' and also from an order entered in said clerk’s office on the same day denying plaintiff’s motion to overrule the demurrer to the complaint.

Appeal by the plaintiff, Cacelie Mabbett, 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 May, 1921, vacating a judgment for separation and opening defendant’s default.

Appeal by the plaintiffs, T. J. Fletcher Jackson and another, from a determination of the Appellate Term of the Supreme Court, First Department, rendered on the 10th day of - January, 1921, reversing a final order in summary proceeding's of the Municipal Court of the City of New York, ■ Borough of Manhattan, Fifth District, in favor of the plaintiffs.

Appeal by the plaintiff, John Orben, from a judgment of the Supreme Court in his favor, entered in the office of the clerk of the county of New York on the 13th day of December, 1920, on the verdict of a jury for $400, and also from an order, entered in said clerk’s office on the 8th day of December, 1920, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Process —• action for malicious abuse of process — issuance of final warrant in summary proceedings to dispossess.</p> <p>The gravamen of an action for the malicious abuse of process is the willful using of the process, civil or criminal, for a purpose not justified by law and to effect an object not within its proper scope.</p> <p>Accordingly, there was no abuse of process by the issuance of a warrant in summary proceedings,, where it appeared that the defendant herein instituted summary proceedings to dispossess the plaintiff herein; that the plaintiff appeared in said proceeding and tendered and paid into court the amount of rent prior to the increase thereof; that the plaintiff defaulted in appearing at the trial and the final order was issued in favor of the landlord but the issuance of the warrant was stayed for two weeks; that the proceeding was not discontinued or the balance of rent paid, though the plaintiff sent the defendant the increased rent for the second month but refused to pay the increase for the first month, whereupon the defendant returned the rent received for the second month.</p>

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 Bronx on the 18th day of February, 1920, on the verdict of a jury.

<p>Trusts — sale of real property by trustee—Real Property Law, §§ 106 and 107, construed and applied — agreement for sale of property should not be confirmed where at time of application to court property has materially increased in value — court concerned with interests of cestui que trustent only.</p> <p>Sections 105 and 107 of the Real Property Law in relation to the sale of real property by a trustee contemplate an application to sell for the specific reasons named in the statute, and the granting of the final order authorizing the sale upon terms and conditions named. The application authorized is hot an application to sell to a particular individual, but a general application to sell and an agreement with a purchaser subject to the confirmation of the court is contemplated to be made after the final order provided a purchaser can be found who will purchase the property upon the terms prescribed therein.</p> <p>The order of the court authorizing and directing the sale must be made in view of the conditions existing at the date of the order and cannot be affected by any prior agreement which may have been made between the trustee and a willing purchaser.</p> <p>Accordingly, a contract by a trustee for the sale of trust property at $160,000 should not be confirmed on an application to sell the property where it is made to appear at the time of the application that the property has increased in value and is then worth $200,000.</p> <p>On an application for the sale of trust property the court is not concerned with the interests of any purchaser but only with the interests of the cestuis que trustent.</p>

Appeal by the defendant, The Industrial Fire Insurance Company of Akron, Ohio, 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 April, 1921, sustaining plaintiff’s demurrer to the second defense in defendant’s answer as insufficient in law, and also the demurrer to the defendant’s counterclaim. •

Appeal by the defendant, William Kupperschmidt, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, rendered on the 16th day of April, 1920, convicting him of the crime of criminally receiving stolen property in the first degree in violation of section 1308 of the Penal Law. (See Laws of 1916, chap. 366, amdg. said § 1308. Since amd. by Laws of 1920, chap. 570.)

Appeal by William R. Powell and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of June, 1920, denying a motion to modify so much of a judgment of divorce as awarded alimony to the plaintiff.

Appeal by the plaintiff, Robert Ankele, 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 24th day of November, 1920, denying plaintiff’s motion to sustain the demurrer to the separate and complete defense alleged in paragraph V of the answer, and overruling said demurrer.

Appeal by the defendant, Maurice Bandler, 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, granting plaintiff’s motion for judgment on the pleadings consisting of a complaint and answer.

Appeal by the plaintiff, Bartola Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of April, 1920, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

<p>Legislature — joint legislative committee to investigate affairs of city of New York not standing committee of Legislature within meaning of Legislative Law, § 61 — committee has no power to appoint subcommittee of one — contempt — refusal of witness to be sworn before subcommittee of one not contempt —• committee has no power to take testimony in private.</p> <p>A joint legislative committee appointed pursuant to a joint resolution of the Legislature during the session of 1921 to investigate the affairs of the city of New York is not a standing committee of the Legislature . within the meaning of section 61 of the Legislative Law, and that section has no applicability to said joint legislative committee though it may be used as indicative of the legislative policy touching the conduct of an investigating committee.</p> <p>The joint legislative committee has no power under the resolution creating it to appoint a subcommittee of one member to conduct an examination and swear witnesses.</p> <p>Accordingly, a person subpoenaed to appear before a subcommittee of one of said joint legislative committee is not in contempt for refusal to be sworn as a witness.</p> <p>Said joint legislative committee has no authority to take testimony in private or with closed doors.</p> <p>Clarke, P. J., and Page, J., dissent as to last paragraph of head note.</p>

Appeal by the relator, Edward F. Boyle, 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 6th day of June, 1921, denying relator’s motion for a writ of mandamus to compel the authorities of the city of New York to disregard the Aldermanie Reapportionment Act, chapter 670 of the Laws of 1921 (amdg.

Appeal by the defendant, The State of New York, from a-judgment of the Court of Claims in favor of the plaintiff for $5,000, entered in the office of the clerk of said court on the 1st day of September, 1920.

Appeal by the claimant, Wertie Lee Deyoe, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 15th day of July, 1920, pursuant to an order entered in said clerk’s office on the same day dismissing the claimant’s claim.

Appeal by the defendant, Albany Chemical Company, from a judgment of the County Court of the county of Albany in favor of the plaintiff, entered in the office of the clerk of said county on the 9th day of October, 1920, on the verdict of a jury for $626, and also from an order entered in said clerk’s office on or about 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 defendants, Annita M. Burhyte 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 Madison on the 25th day of May, 1920, on the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of June, 1920, denying defendants’ motion to set aside the verdict and for a new trial' made upon the minutes.</p>

Appeal by the defendant, J. Frank Fellows, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 14th day of December, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of December, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, Arthur Fowler, 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 27th day of January, 1921, upon the dismissal of the complaint by direction of the court at the opening of the case.

Appeal by the plaintiff, Frank A. McNamee, from a judgment of the County Court of the county of Rensselaer in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 16th day of September, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of January, 1921, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the claimant, Daniel J. Mead, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 13th day of October, 1920, dismissing the claim of the claimant.

^Appeal by the claimant, Chicago Great Western Railroad Company, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on!the 7th'day of April, 1920, dismissing the claim on its merits.

Appeal by the defendants, Page Brothers 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 November, 1920.

<p>Workmen’s Compensation Law — continuing disability — rehearing and further award — evidence not justifying conclusion that claimant was not able to work — when unsworn statement signed by doctor not competent evidence.</p> <p>The claimant was injured in February and returned to work in March, one month after the injury, for which loss he was paid, and he continued to work until the last of August when he quit and then asked for a rehearing of his case.</p> <p>Held, that there is no evidence to support the contention of the claimant that he was not able to work at the time he quit and at the time of the rehearing.</p> <p>An unsworn statement signed by a person purporting to be a doctor, addressed to no one, to the effect that the claimant was not able to work, which did not connect up with the accident in any way, was clearly incompetent as evidence.</p> <p>John M. Kellogg, P. J., dissents.</p>

<p>Appeal by the defendant, Monroe M. Schwarzchild, 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 December, 1920, upon the verdict of a jury rendered by direction of the court, and also from an order made on the same day setting aside the verdict of the jury in favor of the defendant.</p>

Appeal by the defendant, Motty Eitingon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1921, overruling said defendant’s demurrer to the complaint.

Appeal by the defendant, Motty Eitingon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of March, 1921, overruling said defendant’s demurrer to the complaint.

Appeal by the defendant, Massachusetts Bonding and Insurance 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 May, 1921, granting plaintiff’s motion to vacate an order for security for costs, permitting service of an amended complaint without security for costs ^and denying defendant’s motion to dismiss the complaint for failure to furnish security for costs.

Appeal by the plaintiffs, Max Pottash and another, 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 29th day of June, 1920, and from so much of an order, entered in said clerk’s office on the 8th day of July, 1920, amending said judgment, as confirms the verdict of a jury rendered by direction of the court in favor of the defendant on the first cause of action, and also from so much of an order, entered in…

Appeal by the plaintiffs, Henry Mindlin 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 1st day of November, 1920, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the same day, denying plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Bogert & Hopper, 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 7th day of April, 1921, granting defendant’s motion to set aside the service of the summons and complaint.

Appeal by the plaintiff, Adolph Boskowitz, 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 April, 1921, denying plaintiff’s motion for an injunction pendente lite.

<p>Motion by the plaintiff, Herman Schopfloeher, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the dismissal of the complaint at the close of the plaintiff’s case upon a trial before the court and a jury at the New York Trial Term, November, 1920.</p>

Appeal by the defendant, Arkell & Douglas, 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 4th day of March, 1921, upon the verdict of a jury rendered by direction of the court.

<p>Cross-appeals 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 June, 1920, upon the verdict of a jury.</p> <p>Appeal by the plaintiff, Anna McNally, Inc., from an order, entered in said clerk’s office on the 2d day of June, 1920, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, M. Lurie Woolen 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 24th day of February, 1921, denying defendant’s motion for judgment on the pleadings consisting of a complaint, an answer and a reply.</p>

Appeal by the defendants, Mary Jane Wickham 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 Orange on the 2d day of December, 1920, upon the decision of the court rendered after a trial at the Orange Special Term. This action was to obtain a construction of the following paragraph of the will of Joseph M. Elston, deceased, of Minisink, Orange county: “ Third.

Appeal by the defendants, Richard F. Veit and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of November, 1920, upon the decision of the court rendered after a trial at the Kings Special Term.

<p>Appeal by the plaintiff, Evelyn I, Skinnell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 16th day of February, 1921, upon the decision of the court rendered after a trial at the Queens Special Term dismissing the complaint upon the merits.</p>

Appeal by the defendants, John Wanamaker and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 20th day of October, 1920.

Appeal by the defendants, The Upson Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 31st day of Decembei, 1920.

<p>Motor vehicles — action, to recover for injuries to boy received while jumping from motor truck, being driven by unlicensed chauffeur — boy, who was riding with permission of driver, not trespasser — unlicensed chauffeur presumed to be incompetent — negligence to employ such person.</p> <p>The plaintiff, a boy about ten years of age, was not a mere trespasser at the time of his injury, where it appeared that during a street parade the plaintiff and another boy climbed onto defendant’s motor truck and rode thereon with the permission of the driver, an unlicensed chauffeur, and that the driver slowed down the car, at the same time telling the boys to get off, but before the plaintiff could do so the driver increased the speed of the car and the plaintiff fell off, rolled under the car and was seriously injured.</p> <p>A person who is under eighteen years of age is presumed to be incompetent to drive a motor vehicle, and the employment of such a driver by the defendant, in violation of subdivision 2 of section 282 of the Highway Law, constituted negligence.</p> <p>It was negligence on the part of the driver to carry the plaintiff in the first place, and the defendant having employed a known incompetent chauffeur, it was chargeable with the primary negligence and with the result which followed, because it must be presumed that if the car had been properly operated for the purposes for which it was designed the accident would not have happened.</p> <p>It was negligence to permit the plaintiff to be on the car and, being thereon to the knowledge of the person in charge, it was little short .of wanton disregard .of human life to command him to get off and then increase the speed of the car as he was about to comply with the command.</p>

Appeal by the defendant, Michele Gallo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 4th day of January, 1921, upon the decision of the court, rendered after a trial without a jury, at the Broome Trial and Special Term.

Appeal by the defendant, John Barton Payne, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 14th day of October, 1920, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on or about 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 defendants, William W. Mulford and others, from an order of the Supreme Court, made at the Albany Special Term and .entered in the office of the clerk of the county of Greene on the 21st day of October, 1918, sustaining plaintiffs’ demurrer to two counterclaims.</p>

<p>Landlord and tenant — summary proceedings to dispossess — tenant dying one week after expiration of year — widow not entitled to possession for remainder of year where notice to quit served about six weeks after expiration of year.</p> <p>The widow of a tenant is not entitled to hold possession as against the landlord where it appears that her husband, who was a tenant from year to year, died about one week after the expiration of the year and that the landlord served notice on her to give up possession about six weeks after the expiration of the year, for the option is with the landlord to regard the holding over by his tenant as an implied agreement on the part of the tenant to hold for another year or to treat the tenant as a trespasser.</p>

<p>Appeal by the defendant, Louis F. Robert, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Essex on the 21st day of September, 1920, on the verdict of a jury for $3,000.</p>

Appeal by the defendant, City of Amsterdam, from a judgment of .the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 24th day of January, 1921, upon the decision of the court rendered after a trial at Chambers, a jury having been waived.

Certiorari issued out of the Supreme Court and attested on the 23d day of July, 1920, directed to the State Tax Commission, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had relating to the determination and apportion- ■ ment of the mortgage tax payable by the relator.

Appeal in the first entitled action by the defendant, S. Wander & Sons’ Chemical Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 18th day of November, 1920, on the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 20th 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 defendant, Turner & Blanchard, Inc., 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 14th day of January, 1921, upon the verdict of a jury for $10,000, 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.

Appeal by Elizabeth Chandler and others from, a decree of the Surrogate’s Court of the county of Kings, entered in the' office of said Surrogate’s Court on the 18th day of November, 1920, admitting a certain paper writing to probate as the last will of Hannah E. Taylor, deceased,— said decree being based upon the verdict of a jury, which verdict answered in the affirmative two and in the negative the other of the three questions ordinarily submitted to a jury in such a…

Appeal by the defendant, John Romanelli, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 26th day of November, 1920, convicting him of the crime of grand larceny in the first degree.

Appeal by the defendant, Hebrew Community of Borough Park, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 7th day of July, 1920, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 9th day of July, 1920, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 11th day of November, 1920, directed to Arthur W. Kreinheder and others, commanding them to ¿ertify and return to the office of the clerk of the county of Erie all and singular their proceedings had in reducing Robert U. Winspear from the rank of captain of police to the rank of patrolman, and assigning him to duty as patrolman in the eleventh precinct in the city of Buffalo.

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

<p>Appeal from a judgment of the County Court of Ulster county, entered in the office of the clerk of said county on the 23d day of April, 1919, allowing defendants’ counterclaim against the plaintiff in the above-entitled action of foreclosure.</p>

Motion by the defendant for leave to appeal to the Court of Appeals from a judgment entered upon an order of the Appellate Division affirming a judgment of the Supreme Court, New York county, and an order denying a motion for a new trial. [See 196 App. Div. 940.]

<p>Appeal from an order of the Supreme Court, entered in the Albany county clerk’s office April 16, 1921, granting an application for a peremptory writ of mandamus.</p>

<p>Appeal from an order of the Supreme Court, entered in the New York county clerk’s office April 6, 1921, denying defendant’s motion to compel service of an amended complaint separately stating and numbering causes of action.</p>