Volume 198 — New York Appellate Division Reports

Appeal by the plaintiff, Leroy Westfall, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 18th day of February, 1920, upon the dismissal of the complaint at the close of the case.

Appeal by the defendant, John Sylvester, from a judgment of the County Court of the county of Montgomery, rendered on the 25th day of June, 1920, convicting him of the crime of grand larceny in the second degree.,

Appeal by the defendants, E. W. Bliss Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 14th day of November, 1919, also from an award entered in the office of said Commission on the 7th day of October, 1920, and also from an award and decision entered in the office of said Commission on the 10th day of December, 1920.

<p>Malicious prosecution — manager of defendant corporation acted without scope of authority .in having .plaintiff arrested for larceny — defendant not liable.</p> <p>In an action for malicious .prosecution against a corporation engaged in buying motion picture films and renting them for exhibition purposes, it appeared that the plaintiff rented a film without authority which was returned to the defendant without injury before being used; that the defendant’s manager, with knowledge of the facts, caused the plaintiff to be arrested, and that the plaintiff was indicted and subsequently acquitted on the trial by direction of the court.</p> <p>Held, that the manager’s full duty to the defendant corporation was discharged when he ascertained before making the complaint to the magistrate that the film had been returned uninjured, and ascertained all the facts essentia! for his determination whether the plaintiff should be continued longer in the employ of the defendant, and that in making the complaint thereafter on which the plaintiff was arrested, he was acting without the scope of his employment, and the defendant is not responsible therefor. Smith, J., dissents.</p>

Appeal by the petitioner, General Silk Importing 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 11th day of May, 1921, denying the petitioner's motion for an order pursuant to the Arbitration Law directing the respondent to proceed forthwith with an arbitration before the arbitration committee of the Silk Association of America, pursuant to the provisions of a…

Appeal by the plaintiff, David Dreher, 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 April, 1921, granting defendant’s motion to set aside and vacate the service of the summons herein.

Appeal by the defendants, Curtis & Sanger and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 11th day of November, 1920.

Appeal by the defendant, The City of New York, from an award and decision of the State Industrial Commission, entered in the office of said Commission on- or about the 11th day of October, 1920.

<p>Taxation — franchise tax on life insurance company — Tax Law, § 187, as amended by Laws of 1917, chapter 796, construed and applied — dividends paid to policyholders on deferred plan deductible from gross income — premiums refunded on cancellation of policies deductible.</p> <p>In construing chapter 796 of the Laws of 1917, amending section 187 of the Tax Law, the courts will take into consideration the title of the act, the general scope and design of the law, the evils sought to be remedied or the benefits attained and will so construe the law as to accomplish the object the Legislature had in view.</p> <p>Section 187 of the Tax Law is applicable to domestic life insurance companies as well as to fire'insurance companies.</p> <p>In determining the franchise tax under said section, as amended, all dividends to policyholders whose policies are on the deferred dividend plan, and all premiums refunded to policyholders on the cancellation of their policies should be deducted from the gross amount of premiums received.</p> <p>John M. Kellogg, P. J., and Cochrane, J., dissent.</p>

Appeal by the defendant, John Alaboda, from a judgment of the County Court of the county of Essex, rendered on the. 28th day of October, 1920, convicting him of the crime of grand larceny in the second degree in violation of section 1293-a of the Penal Law.

Appeal by the plaintiff, Wanaksink Lake Development Corporation, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Sullivan on the 13th day of April, 1921, directing the plaintiff to serve a verified bill of particulars.

Appeal by the defendant, James McCredie, from a judgment of the County Court of the county of Albany in favor of the plaintiffs, entered in the office of the clerk of said county on the 14th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, Louis Lerman, from an order of the county judge of Madison county, entered in the office of the clerk of said county on the 29th day of January, 1921, directing that a commission issue to examine the plaintiff without the State upon interrogatories to be annexed.

Appeal by the plaintiff, Bridget Ellis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 10th day of November, 1920, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case.

Appeal by the defendants, Mergenthaler Linotype Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 20th day of August, 1920, and also from an award entered in the office of said Commission on the 9th day of December, 1920.

Appeal by the claimant, Richard J. Heinemann, from an order, determination and judgment of the Court of Claims, entered in the office of the clerk of said court on the 20th day of January, 1921, dismissing the claim of the claimant upon the merits. (See 114 Mise. Rep. 265.)

<p>Dower — action to establish that plaint's has inchoate right of dower in premises transferred by her husband to son — transfer made before marriage with understanding between parties that land be retransferred on request—refusal of son to retransfer in fraud of plaintiff — lack of seizin in husband during marriage no defense — failure of husband to maintain action no defense to action by wife — complaint — son guilty of breach of legal or equitable duty.</p> <p>In an action by a wife to establish an inchoate right of dower in certain premises it appeared that prior to her marriage her husband transferred the property in question to his son for the purpose of management and with the distinct understanding between them that the son would retransfer the property on request; that the plaintiff was informed by her husband before marriage that he was the owner of a large quantity of real estate and relied on the statement in marrying; that the son failed dn request of his father to retransfer the property, but did transfer to him a life estate therein.</p> <p>Held, that while the ordinary rule is that no inchoate right of dower can exist where the husband is not seized of the legal estate in lands during coverture, nevertheless, the courts will aid a wife in obtaining that right when the vesting of the legal estate in her husband has been prevented by fraud practiced by someone to her detriment; actual seizin in fact by the husband has not been deemed necessary by the courts in granting the relief.</p> <p>The fact that the husband, who is still living, did not bring an action to have the property retransferred to him, is not a defense to this action and does not prevent the wife from maintaining an action to establish her interest in the property wrongfully withheld from her husband and herself.</p> <p>Complaint examined, and held, to state sufficient facts to show that the son has been guilty of a breach of legal or equitable duty in failing to justify the trust and confidence his father reposed in him and in fraud of the plaintiff’s rights.</p> <p>Clark, J., dissents, with memorandum.</p>

<p>. Appeal by the defendant, Mount St. Joseph’s Academy of Buffalo, N. Y., from an order of the Supreme Court, made at the Chautauqua Special Term and entered in the office of the clerk of the county of Chautauqua on the 14th day of March, 19-21, remanding to the joint custody of the relator and her husband their three children.</p>

<p>Appeal by the defendant, Henry J. Haverkamp, from an order of the Supreme Court, made at the Chautauqua Special Term and entered in the office of the clerk of the county of Chautauqua on the 21st day of February, 1921, allowing additional costs to the plaintiff, and also from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 21st day of February, 1921, on the report of a referee in an action to foreclose a mortgage on real property.</p>

<p>Injunction — action for permanent injunction to restrain labor union and members from picketing a,nd interfering with plaintiff's employees and business —• moving and answering affidavits justify granting injunction pendente lite.</p> <p>On an application for an injunction pendente lite in an action for a permanent injunction to restrain the defendants, the members of a labor union, their agents and confederates from picketing the places of business of the plaintiff, from interfering with its employees in the dispatch of its business, from inducing its employees to violate their contracts of employ-y ment with the plaintiff, the moving and opposing affidavits disclose a z persistent and organized campaign of unlawful acts of assault, abuse, threat and intimidation towards the employees of the plaintiff and also towards the contractors to whom the plaintiff was sending its work, justifying the conclusion that the members of the defendant union were guilty of many acts of lawlessness and unjustifiable interferences with the plaintiff’s business, and that the picketing managed by defendant union was not peacefully and legally conducted, and an injunction pendente lite should be granted enjoining the defendants from further picketing in front of plaintiff’s place of business, and from interfering with the conduct of the free dispatch of its business or in any manner hampering, hindering or harassing the plaintiff’s employees.</p> <p>Dowling, J., dissents.</p>

<p>Appeal by the defendant, The State of New York, from a judgment of the Court of Claims in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of May, 1920.</p>

Appeal by the defendant, David Ellarson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 7th day of January, 1921, on the verdict of a jury, and also from an order, entered in said clerk’s office on the 21st day of January, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, Arthur M. Butts, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Delaware on the 12th day of November, 1920, on the verdict of a jury, and also from an order, entered in said clerk’s office on the 19th day of November, 1920-, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Rose Jessie Jaked, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 11th day of December, 1920, upon an order setting aside the verdict in favor of plaintiff and dismissing the complaint, and also from the order, entered in said clerk’s office on the 8th day of November, 1920, setting aside the verdict for $400 and directing the dismissal of the complaint.

Appeal by the defendant, Boston and Maine Railroad, from a decision and award of the State Industrial Commission, made on or about the 9th day of November, 1920.

Appeal by the defendant, Allen P. Becker, from a judgment of the County Court of the county of Albany, entered in the office of the clerk of said county on the 31st day of August, 1920, affirming a judgment of the City Court of Albany in favor of the plaintiff.

Appeal in the first entitled action by the defendant, Franklin Johns, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 15th day of December, 1920, on the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 21st day of December, 1920, denying defendant’s motion for a new trial made upon the minutes.

Motion by the defendant, Glens Falls Insurance Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the direction of a verdict in plaintiff’s favor by the court at the close of the case upon a trial before the court and a jury at the Erie Trial Term in February, 1921.

<p>Appeal by the defendant, Town of Leon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 14th day of August, 1920, on the verdict of a jury for $3,000, 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.</p>

<p>Workmen’s Compensation Law — injury to newsboy on train — newsboy within second group 45 of § 2 —■ said group not limited to four or more persons working in close proximity — said provision as construed is constitutional,</p> <p>A newsboy on a railroad train whose employer, a news company, has regularly in its employ four or more workmen or operators within the meaning of the Workmen’s Compensation Law, comes within the protection of second group 45 of section 2 which is not limited to eases where there are four or more employees worldng in close proximity.</p> <p>Said provision, as so construed, does not violate the Fourteenth Amendment of the Federal Constitution, as denying to every person within the jurisdiction of the United States equal protection of the laws.</p>

<p>Municipal corporations — claim by municipal employee for excess of salary over compensation while in army — Military Law, § 246, as amended by Laws of 1917, chapter 435, is constitutional — no deduction for clothing and rations.</p> <p>Section 245 of the Military Law, as amended by chapter 435 of the Laws of 1917, providing that during the absence of an employee of a municipal corporation in the performance of duty in the Federal military service “ he shall receive such part of his salary or compensation as such officer or employee as equals the excess, if any, of such salary or compensation over the compensation paid to him for the performance of such duty,” does not violate section 1 of "the 14th Amendment of the Federal Constitution, in that it confers an advantage upon a selected class.</p> <p>Nor does said provision violate section 10 of article 8 of t'he State Constitution in that it requires the city to make to the employee a gift, and that, too, for something which is not at all a city purpose, nor does it violate section 28 of article 3 of the State Constitution because it requires the city to grant to an employee extra compensation.</p> <p>If the making of the allowance to the plaintiff herein will be inconsistent with the operation of some of the provisions of the charter of the defendant city then those provisions must be deemed modified or suspended by implication so far as may be necessary to give effect to the said provision of the Military Law.</p> <p>In determining the amount of excess salary due the plaintiff over the amount of compensation received as a member of the Federal military service he should not be charged with the aggregate value of the rations and clothing which he received from the National government while in its service.</p>

<p>Appeal by the defendants, Charles S. Wilson 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 Albany on the 13th day of October, 1920, except that part of said order which disallowed one claim of the relator, and also from an order, entered in the office of the clerk of the county of Albany on the 24th day of July, 1920, directing that a writ of certiorari issue.</p>

<p>Railroads — action to recover for death of plaintiff's horses at railroad crossing — plaintiff failed to hitch horses while loading freight car at night on private siding used by railroad — defendant not under duty to give warning of approach of engine to crossing . —negligence not shown — plaintiff guilty of contributory negligence as matter of law — plaintiff’s horses not frightened by approach of defendant’s engine.</p> <p>In an action to recover damages for the death of plaintiff’s horses it appeared that the plaintiff and his sons were loading hay into a freight car on a private siding which was used by the defendant railroad; that the plaintiff did not hitch or fasten his teams in any way; that at the time of the accident it was dark and the plaintiff had no light; that two of plaintiff’s three teams became frightened and ran away and as they were crossing the railroad at a public crossing in close proximity to the freight cars they were struck by one of defendant’s engines and three of the horses killed; that said engine was not running on schedule time and no warning of its approach to the crossing was given by the engineer.</p> <p>Held, that though the freight cars and teams were on private property, the defendant was using the side track and the roadway immediately adjoining it for business purposes, and the same rule of law applies as would apply if the side track were actually upon defendant’s property;</p> <p>That the defendant owed no duty to the plaintiff to sound the warning as its engine approached the crossing, especially in view of the fact that the plaintiff was loading the cars in the night time, without lights, and outside the usual working hours;</p> <p>That the plaintiff did not establish the negligence of the defendant.</p> <p>Furthermore, the failure of the plaintiff to take the ordinary precaution of hitching or fastening, his teams while unloading his sleighs, "in view of the circumstances and conditions surrounding the place where he was at work, constituted contributory negligence on his part as a matter of law.</p> <p>The evidence did not establish the fact that the plaintiff’s teams were frightened by defendant’s engine as it approached the crossing and cars at which the plaintiff was working.</p>

<p>Boundaries — action to recover damages for trespass and cutting timber on State lands — township partitioned in 1822 by map dividing it into lots — map represents entire area of township and not definite area — purpose of description in deed — conveyance of land by lots, with reference to map is not controlled by measurements given in deed to State — State has title to lands in dispute — State not bound by unofficial survey fixing boundary line of its purchase — damages not' excessive — actual damages only recoverable.</p> <p>In an action by the State to recover damages for trespass and cutting timber on State lands which turned upon the location of the dividing line between the lands owned by the State and private lands, it appeared that the township in which the lands were situated was partitioned in 1822 by the then owners by reference to a map which divided the township into 300 lots, which was made without an actual survey of the lands, and that both the State and the defendant company acquired their lands by conveyances referring to said map by lot numbers, but in the conveyance to the State there was a description giving the length and width of the land conveyed, which if controlling would place the locus in quo outside the State lands.</p> <p>Held, that the map of 1822 was not intended to cover a definite area ten miles square, but was a map of the entire township and that each lot on the map represented one three-hundredth part of the township, as the township in fact existed.</p> <p>The purpose of a description in a deed is to identify the lands intended to be conveyed, and that part of the description which best identifies the land, in accordance with the intent of the parties, is the controlling part of the description.</p> <p>Accordingly, the description in the deeds to the plaintiff and the defendant company by lots on the map in question is definite and precise and permits each lot to be located upon the ground, and these descriptions control over a description by metes and bounds in the conveyance to the plaintiff.</p> <p>On all the evidence, held, that the title to lots 190 and 231, which were included in the notice of possession in the Comptroller published in 1894, and of which the Comptroller is deemed to have had actual possession, is in the State.</p> <p>The so-called Johnson line of 1879 fixing the west boundary of State land in the township in question was made without the authority of and does not in any way bind the State.</p> <p>The evidence fully sustains the finding of the referee as to the amount of damages, and he was justified in finding that the plaintiff could recover actual damage only.</p> <p>Kilby, J., dissents in part.</p>

Appeal by the defendant, Charles J. Missir, 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, granting plaintiff’s motion for judgment on the pleadings.

<p>Appeal by the plaintiffs, Fred W. Odwell and another, from a judgment of the County Court of the county of Delaware in favor of the defendant, entered in the office of the clerk of said county on the 22d day of December, 1916, upon the verdict of a jury rendered by direction of the court.</p> <p>The action was commenced in Justice’s Court. Judgment was Rendered for plaintiffs and defendant appealed, demanding a new trial in County Court.</p>

<p>Appeal by Henry P. Bope, a stockholder of the defendant, 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 February, 1921, denying his . motion to vacate the judgment rendered against the defendant on the 30th day of December, 1920.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 22d day of April, 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 reference to fixing the income tax of Marie Marshall, an incompetent person, for the taxable year of 1919 under article 16 of the Tax Law.</p>

<p>Public Service Commissions — Laws of 1921, chapter 134, amending Public Service Commissions Law and creating Transit Commission in city of New York constitutional — general and not special city bill — appointment of Transit Commissioners by Governor — payment of employees of Commission — power of Commission to modify rates fixed in local franchises.</p> <p>Chapter 134 of the Laws of 1921, entitled “ An act to amena the Public Service Commissions Law, in relation to creating the Public Service Commission and the Transit Commission, defining the jurisdiction, powers and duties of such Commissions, and abolishing the Public Service Commission of the First District, the Public Service Commission of the Second District and the office of Transit Construction Commissioner,” is a general act and not a special city bill and, therefore, it was not necessary to send the same to the mayor of the city of New York for action as provided by section 2 of article 12 of the Constitution.</p> <p>The provision of said act for the appointment of Transit Commissioners by the Governor does not offend section 2 of article 10 of the Constitution, providing that “ all city, town and village officers whose election or appointment is not provided for in this Constitution shall be elected by the electors of such cities, towns and villages, or of some division thereof or appointed by such authorities thereof as the Legislature shall designate for that purpose.” '</p> <p>There is no constitutional objection to the mandatory provisions of said amendment to the Public Service Commissions Law, providing for the payment of salaries and expenses of the employees of the Commission.</p> <p>The provision giving power to the Commission to determine the just and reasonable rates, fares and charges as the maximum to be charged, “ notwithstanding that a higher or lower rate, fare or charge has been heretofore prescribed by general or special statute, contract, grant,.franchise condition, consent or other agreement, and shall fix the same,” etc., does not offend subdivision 1 of section 10 of article 1 of the Federal Constitution, providing that “ No State shall * * * pass any * * * law impairing the obligation of contracts.”</p>

Appeal by the defendant, New York State Railways, from an order of the County Court of • the county of Monroe, entered in the office of the clerk of said county on the 2d day of June, 1921, dismissing the appeal of the defendant to the County Court from an order of the City Court of Rochester, Civil Branch, denying defendant’s motion to set aside the verdict of the jury and staying proceedings upon execution, by filing an undertaking on said appeal.

Appeal by the plaintiff, Fay H. Blauvelt, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 26th day of July, 1920, upon the dismissal of the complaint by direction of the court at the close of the case, and also from an order entered in said clerk’s office on the 26th day of July, 1920, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Insurance — life insurance — agent of life insurance company has authority to deliver policy without payment of premium and while insured is ill — delivery waives provision in application requiring payment of premium at or before delivery of policy, and that insured be in good health at that time — statement to agent relative to insured’s health not fraudulent.</p> <p>In an action to recover upon a life insurance policy, it appeared that the defendant’s agent, clothed with apparent authority to act for it, upon receipt of the policy, a signed receipt for first premium, and a new application, all prepared by the defendant, took them to the office of the insured and was there told by his secretary that the insured was ill at home with a bad cold; that on the same day the insured signed the new application and retained the policy and receipt for the premium, and the application was handed to the defendant’s agent who was told that he could procure the check for the premium on the next day; that on the next day the defendant’s agent told the insured’s secretary that he could not accept the cheek and would like the policy back and on that evening the insured died of influenza without having paid the first premium.</p> <p>Held, on all the evidence that the agent had power and authority as such to deliver the policy without payment of the premium and while the insured was ill, and that by so doing he waived the provision in the application which required the payment of the premium at or before the delivery of the policy, and the provision that the insured be in good health at that time;</p> <p>That the jury were justified in finding that the statement to the defendant’s agent that the insured was suffering from a bad cold was a truthful statement of his condition as understood by all the parties interested at that time, and was not misleading, incomplete or fraudulent.</p>

<p>"Certiorari issued out of the Supreme Court and attested on the 29th day of September, 1920, directed to the Public Service Commission of the State of New York, Second District, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had requiring the Delaware and Hudson Company to raise its railroad bridge over the Hudson river at Fort Edward sufficiently to provide a clearance of fifteen and one-half feet, as required by the Barge Canal Act.</p>

<p>Crimes — appeal to County Court from Traffic Court of City of New York — People may appeal from County Court where reversal was for errors of law only — order of reversal discharging prisoner and remitting fine appealable — motor vehicles — automobile passing within eight feet of street car stopped to take on or discharge passengers in violation of ordinance of city of New York.</p> <p>An appeal to the County Court from the Traffic Court of the City of New York may be had by the defendant “ for an erroneous decision or determination of law or fact upon the trial ” under section 750 of the Code of Criminal Procedure, and the People may appeal from a judgment of reversal by the County Court if it appears that the reversal was for errors of law only, where leave to do so is granted within sixty days by a justice of the Supreme Court.</p> <p>An order of reversal which discharged the prisoner and remitted the fine, instead of directing a new trial, did finally determine as matter of law that the evidence for the prosecution, as accepted by the Traffic Court, did not make out the violation charged, and it is appealable.</p> <p>Under ah ordinance of the city of New York, providing that no automobile shall “ pass or approach ” within eight feet of a street car so long as the same is stopped and remains standing for the purpose of receiving or discharging passengers, an automobile which comes into the eight-foot zone while both it and the street car are moving cannot pass the street car while stopped to take on or discharge passengers without violating the ordinance, even if the automobile may have come up abreast of the rear or even if the front of the automobile is abreast of the front platform of the street car.</p>

<p>Cross-appeals by the plaintiff, Ellen Nevins, and the defendant, the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of October, 1920, on the decision of the court rendered after a trial at the Kings Special Term.</p> <p>The action was brought originally on the 23d day of June, 1919, against the defendants Friedauer and O’Neil. The said defendants, under a license from the commissioner of docks of the city of New York, had entered upon certain made land in Gravesend bay and constructed bungalows thereon. The plaintiff, claiming to own the land, brought this action in equity for an injunction on the theory of a continuing trespass. On the 12th day of March, 1920, on the application of the city of New York, an order was entered making the city a party defendant and authorizing it to appear and answer. The city of New York thereupon answered and denied the title of the plaintiff to the property upon which the individual defendants were constructing bungalows, asserting that it was the property of the city, and interposed a counterclaim asking that the deed made by the former town of Gravesend, the predecessor of the city, to-the predecessor in title of the plaintiff, be adjudged void in so far as it purports to convey any land under the waters of Gravesend bay and that it be reformed by omitting therefrom the portion of the description purporting to include land under water in Gravesend bay, to which counterclaim the plaintiff replied.</p> <p>The judgment of the court at Special Term decided that the deed from the town to plaintiff’s predecessor in title conveyed no title to land under water in the bay, but that plaintiff as a riparian owner was entitled to the made land upon which the bungalows were erected and other made land described in the judgment, and owned the same in fee simple. The court refused to find that the plaintiff was the owner in fee simple of the land under water between the made land and the bulkhead line, and the judgment decrees that the city of New York is the owner of such land under water. ;</p> <p>The defendant city appeals from the judgment, and the plaintiff appeals from so much thereof as decrees the city to be the owner of the land under water between the made land and the bulkhead line.</p>

Appeal by the plaintiff, United Cigar Stores Company of America, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 9th day of August, 1921, denying its motion for an injunction and vacating a temporary injunction theretofore granted.

Appeal by the defendants, Marshall C. Lefferts 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 Queens on the 21st day of May, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of May, 1921, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas McGetrick, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Cayuga on the 2d day of August, 1920, upon the report of a referee in so far as it grants equitable relief and damages in favor of the defendants upon their counterclaim.

Motíon for reargument of an appeal by the defendant, Mount St. Joseph’s Academy of Buffalo, N. Y., from an order of the Supreme Court, made at the Chautauqua Special Term and entered in the office of the clerk of the county of Chautauqua on the 14th day of March, 1921, remanding to the joint custody of the relator and her husband their three children, and for leave to appeal to the Court of Appeals.

Certiorari issued out of the Supreme Court and attested on the 28th day of April, 1921, directed to Severn A. Anderson, treasurer of Erie county, N. Y., commanding him to certify and return to the clerk of the county of Erie all and singular his proceedings had concerning the trial, conviction and dismissal from office of Howard E. Rigby, a messenger in the office of said county treasurer.

<p>Municipal corporations — proceedings to acquire title in fee to street in city of New York—street as dedicated and opened showed encroachments — street as paved did not require removal of encroachments — owners failed to present claims in prior proceedings for regulating and grading street — commission had no power to award damages because of encroachments — in proceedings to acquire fee damage awards cannot be made for encroachments if city does not intend to interfere with porches and commission fails to find any injury to buildings.</p> <p>In proceedings to acquire the fee to a street in Greater New York under chapter 17, title 4, of the Greater New York charter, it appeared that the street in question had been dedicated to and accepted by the city over twenty years before; that the- official map showed a street measuring sixty-six feet between property lines, and as thus shown porches, platforms and steps of abutting property encroached upon the street; that in grading and paving the street but thirty-six feet thereof was used; that in proceedings regulating and grading the street proper notices were served upon the abutting owners to present claims for damages, but none were presented; that in the present proceeding to acquire the fee the abutting owners claimed damages because of said encroachments.</p> <p>Held, that the commissioners, appointed only to acquire the fee in the street, possessed no power to award damages for an executed and accepted change of grade made long before and after proceedings had been had establishing and regulating the change of grade in which, upon due notice, the abutting owners did not present any claims for damages.</p> <p>Moreover, the report fails to find, as required, “ that any intended regulation will injure any building,” and also omits the essential conclusion that any loss will accrue by and in consequence of such intended regulation to the respective owners; there is no basis for damage awards if the city does not interfere with the stoops and projections.</p> <p>Jaycox, J., dissents, with opinion.</p>

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of Special Sessions of the City of New York, entered in the office of the clerk of said court on the 18th day of March, 1921, granting defendant’s motion in arrest of a judgment convicting him of a violation of section 52 of the Workmen’s Compensation Law.

Appeal by the defendants, American Railway Traffic Company and others, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 29th day of June, 1921, directing the Nassau National Bank to pay over to the sheriff of Kings county the balance of the deposit account of said defendant with it, to be applied by the sheriff upon an execution in his hands upon a judgment of the plaintiff against the…

Appeal by the defendant, Union Ferry Company of New York and Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of March, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis Jaffe, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 27th day of August, 1921, overruling a demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings. Order affirmed upon the opinion of Mr. Justice Cropsey at Special Term, with ten dollars costs and disbursements. Blackmar, P. J., Mills, Putnam, Kelly and Manning, JJ., concur.

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

Settlement of order reversing 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. (See 197 App. Div. 437.)

<p>Elections — certificate of nomination — power of board of elections with respect to receiving and filing certificates of nomination is wholly ministerial — board of elections of city of New York justi- • fled in refusing to print respondents’ names as candidates for mayor and president of board of aldermen where nominees were serving sentences for felony in Sing Sing Prison — Constitution, article 2, § 3, not applicable to residence of candidate for office — mandamus to compel board to place names on ballots — clear legal right to relief sought must be shown — respondents had no right to hold office •—■ courts do not lend aid to accomplishment of things that are absurd and wrong.</p> <p>The power of the board of elections with respect to the receiving and filing of certificates of nomination is now wholly ministerial, but the duty of executing the election laws is expressly enjoined upon the board by section 190 of the Election Law, and it should refrain from acting on a certificate that is invalid on its face.</p> <p>Accordingly, the board of elections of the city of New York was justified in refusing to place the names of candidates for the offices of mayor and president of the board of aldermen upon the official ballots for the general election of November 8, 1921, where it appeared from the original certificate filed that they were inmates of Sing Sing Prison serving a sentence for a felony, and were, therefore, disqualified to hold office.</p> <p>The fact that a second certificate recited addresses in the city of New York did not cure the defect where the change was not made because of error; but because it was believed that under article 2, section 3, of the New York Constitution the nominees had neither gained nor lost a residence while confined in any public prison, for said section of the Constitution has no application to the residence required of a candidate for office.</p> <p>A clear legal right to the relief sought must be shown on an application for a mandatory order requiring public officials to act.</p> <p>The respondents have no right to hold the offices for which they would seek the suffrage of citizens as they have been convicted of criminal anarchy and are confined in a State prison.</p> <p>Courts will not lend aid to the accomplishment of an absurd thing, and where it appears that the relief sought is not to secure a legal right, but to accomplish a wrong and compel the doing of an act that would be of no avail, judicial sanction will be withheld.</p> <p>Clarke, P. J., dissents.</p>

Appeal by Dr. M. B. Heyman, superintendent of Manhattan State Hospital, 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 August, 1918, sustaining a writ of habeas corpus and discharging William C. Abercrombie from the Manhattan State Hospital to which he had been theretofore committed as. an insane person.

Appeal by the defendant, The Bristol Brass Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of June, 1921, denying defendant’s motion to set aside service of the summons herein.

<p>Courts — proceeding to remove justice of Municipal Court of City of New York on charges — failure to show respondent was engaged in carrying on business within inhibition of Municipal Court Code, § 2, and that he was not a bona fide resident of district from which he was elected— “ to carry on a business ” defined.</p> <p>Petition for the removal of a justice of the Municipal Court of the City of New York based on the charge that he was engaged in carrying on business within the inhibition of Municipal Court Code, section 2, will be dismissed, where it appears that grounds for the charge are that he held ten per cent of the capital stock of a corporation of which he was not an officer or director, and that his sole connection with a newspaper in which he owned stock was the writing of an occasional article in the interest of Americanism.</p> <p>Evidence as to the allegation that respondent had moved out of the district in which he was elected examined, and held, as a matter of law and fact, that he resides in the district from which and for which he was elected.</p> <p>The term “ to carry on a business ” implies such a relation to the business as identified the person with it and imposes upon him some duty or responsibility in connection with its management.</p>

<p>Sales — action for balance due on purchase price of goods — defenses — Statute of Frauds — demurrer to defense of Statute of Frauds sustained where complaint alleged sale, delivery and part payment— acceptance, receipt or part payment need not be contemporaneous with making of contract — oral promise to answer for debt of another — defense bad where complaint alleges sale to defendants and delivery to third person for defendants.</p> <p>In an action to recover the balance due on the purchase price of the sale of certain goods where the complaint alleges a sale, delivery to the person to whom defendant directed the goods to be delivered, constituting acceptance by the defendant, and part payment of the purchase price, the defense of the Statute of Frauds that the contract was not in writing and that the defendants did not “ at the time of the alleged sale ” accept or receive any part of the goods and did not “ at the said time ” pay any part of the purchase price is insufficient, since under section 85 of the Personal Property Law neither acceptance, receipt nor part payment need be contemporaneous with the making of the contract, but may occur at any time thereafter, if under the contract and prior to its revocation.</p> <p>Defense that the promise was to answer for the debt of another person is demurrable where the complaint alleges a sale to the defendants and delivery to a third person but does not contain allegation that the third person is to pay for the goods or that any debt arose from the third person to the plaintiff.</p>

<p>Husband and wife — action on foreign judgment to recover unpaid installments of alimony — judgment of foreign court conclusive upon parties and entitled to full force and credit where court had jurisdiction of parties and subject-matter — extent of estoppel of judgment — defendant estopped from setting up prior agreement of separation — court will not enjoin enforcement of foreign judgment for divorce.</p> <p>A judgment of divorce granted by a Nevada court is conclusive and binding and will be given full force and credit in this State in an action brought to recover unpaid installments of alimony, where the Nevada court had jurisdiction of the subject-matter of the action and of the parties.</p> <p>The estoppel of a judgment extends to any material matter within the issues which was expressly litigated and determined and also to those matters which might have been litigated therein. The rule applies as well to judgments of default where the facts warrant the relief sought as to one rendered after a contest.</p> <p>Hence, since in the action for divorce the question of alimony was comprehended within the issue and incident to the main issues and was expressly determined, the defendant is estopped from setting up a prior separation agreement, and the courts of this State will not enjoin the enforcement of the foreign judgment, which contains no reservation of power to modify the award of alimony.</p>

<p>Corporations — action for dissolution and accounting — when referee not appointed on motion for temporary receiver — facts not justifying appointment of temporary receiver — references on motions not resorted to save in exceptional cases.</p> <p>A referee should not be appointed to take proof of the disputed facts arising on a motion for the appointment of a temporary receiver in an action for the dissolution of a corporation and an accounting by the directors, where neither the complaint nor the affidavits in support of the motion state any facts showing a diversion of corporate funds by the officers and directors and there are no conflicting statements of fact to be determined.</p> <p>Furthermore, there is no reason for the appointment of .a temporary receiver, since it appears that the defendant corporation is solvent and the pleadings allege no fact of misappropriation or diversion of corporate property making it necessary' to appoint a receiver to protect the interests of stockholders and creditors.</p> <p>While it is within the power of the Special Term to order a reference to enlighten its own conscience, references upon the disposition of motions are not encouraged and are not to be resorted to save in exceptional cases where the facts are complicated.</p>

Appeal by the plaintiffs, David Bersin 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 20th day of April, 1921, granting defendant’s motion to vacate the service of a summons.

<p>Appeal by the plaintiffs, D. M. Stevenson 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 20th day of June, 1921, denying plaintiffs’ motion for a discontinuance of the action, and also from an order entered in said clerk’s office on the 23d day of August, 1921, denying plaintiffs’ motion to strike out a paper purporting to be an answer with counterclaim.</p>

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

Appeal by the plaintiff, Henry Holmes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of April, 1921, upon the dismissal of the complaint at the opening of the trial and before a jury was impaneled, upon the ground that no order was made appointing a guardian ad litem for the infant plaintiff until six days after the service of the summons herein.

Appeal by Cities 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 22d day of September, 1921, so far as it denies a motion to direct a witness under a commission from a court in another State to answer certain questions.

Appeal by the defendant, Parent Petroleum Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of June, 1921, denying defendant’s motion to set aside the service of the summons herein.

Appeal by the defendant, Charles Nessler, from a judgment of the Court of Special Sessions of the City of New York, entered in the office of the clerk of said court on the 14th day of February, 1919, convicting him of the crime of publishing untrue and misleading advertisements in violation of section 421 of the Penal Law, and from orders made on the 28th day of February, 1919, denying motions in arrest of judgment and for a new trial made upon the minutes.

Appeal by the defendant, Western Union Telegraph 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 31st day of May, 1921, denying its motion for judgment on the pleadings in favor of the plaintiff for nominal' damages only, with costs of the motion to the defendant.

Appeal by the plaintiff, Finchley, 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 29th day of June, 1921, granting defendant’s motion to vacate a warrant of attachment against its property.

Appeal by the defendant, Herbert S. Newham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 29th day of January, 1921, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 28th day of January, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the People of the State of New York from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 2d day of September, 1921, sustaining a writ of habeas corpus and discharging the relator from custody.

Appeal by the plaintiff, Albert W. Ruble, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 24th day of May, 1921, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Certiorari issued out of the Supreme Court and attested on the 1st day of September, 1920, directed to the Public Service Commission of the State of New York, Second District, and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had relative to the complaint of the incorporated village of Brownville, Jefferson county, by Fred L. Page, village president, against Black River Traction Company, as…

Appeal by Harry Peckham, an infant, by bis special guardian, Leonard A. Govern, from a decree of the Surrogate’s Court of the county of Delaware, entered in the office of the clerk of said court on the 5th day of February, 1921, judicially settling the accounts of Arthur S. Reynolds, as executor of Etta Fredenburgh Burcham, as executrix of David Fredenburgh, deceased.

<p>Cross-appeals by the plaintiffs, the Town of Mamaroneck and another, and the defendants, Village of Mamaroneck and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 6th day of April, 1921, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the complaint on the merits. (See 196 App. Div. 946, 978.)</p> <p>Judgment unanimously affirmed, with costs, upon the opinion of Mr. Justice Tompkins at Special Term, and the injunction granted by this court by order as resettled, filed May 13, 1921, is vacated.</p> <p>Present—Blackmar, P. J., Rich, Putnam, Kelly and Jaycox, JJ., concur.</p>

<p>Appeal by the American Tract Society and others, as residuary legatees and beneficiaries under the last will and testament of Emma Bogardus, deceased, from a decree of the Surrogate’s Court of the county of Dutchess, entered in the office of said Surrogate’s Court on the 16th day of May, 1919, refusing probate to said will and a codicil thereto.</p>

<p>Appeal by the plaintiff, East Side Garage, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 25th day of February, 1921, upon the dismissal of the complaint by direction of the court at the opening of the case.</p>

<p>Bills and notes — promissory notes valid where signature affixed by third person with authority of person whose name is signed — evidence — rule for weighing conflicting evidence — ratification by decedent of her indorsement on note — decedent’s estate liable though renewal note was not signed by decedent or with her authority, where she signed original notes.</p> <p>A person whose name appears on a promissory note as signer or indorser is liable thereon though she did not personally sign or indorse the note, if she understood the nature of the note and authorized a third person to sign her name as maker or indorser.</p> <p>In weighing evidence it is a fundamental rule that all the evidence should be harmonized if possible and that each part thereof should be considered in reference to the entire testimony and so as to bring about a consistent result. If two constructions are equally suggestive, one of which implies crime or moral turpitude and the other is free from such implication, the latter should be adopted.</p> <p>The appellant was the owner of two promissory notes, on one of which the decedent's name appeared as indorser and on the other as signer. While expert witnesses testified that the name of the decedent was not in hear handwriting it appeared by other evidence that the decedent was present at the appellant bank when her husband stated that the first note was indorsed by her. As to the other note, while there was no evidence that she signed it, there was evidence that she actually signed two other notes for which it was given in renewal.</p> <p>Held, on all the evidence, that the decedent’s estate is liable on both notes.</p> <p>It is immaterial whether or not the decedent actually signed the second note as maker, since it appeared that she did sign notes for which it was given in renewal, and the claim by the appellant was amended on the hearing before the surrogate so as to cover either view of the transaction.</p>

Appeal by the plaintiff, John Fowler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of March, 1921, determining that plaintiff has waived his right to make a case on appeal herein and declaring the case and appeal abandoned.

<p>Appeal by the defendant, John Barton Payne, Director-General of Railroads, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 13th day of November, 192 the verdict of a jury for $9,200, and also from an order entered in said clerk’s office denying defendant’s motion to set aside the verdict and for a new trial, made upon the minutes.</p>

<p>Workmen’s Compensation Law — evidence — award based oit unsworn report of physician submitted outside of regular hearing will be reversed — injury arising out of and in course of employment — claimant injured in garage while waiting for repairs to' be made on employer’s motor bus used in transporting employees to work — stopping at garage did not deprive claimant of his position of employee if at time he was in course of employment — matter remitted for further hearing.</p> <p>An award based on an unsworn report by a physician, submitted outside of any regular hearing of which the employer or insurance carrier had notice, will be reversed.</p> <p>.it cannot be said, as a matter of law, that claimant’s injury did not ariss out of and in the course of his employment, where it appears that th© injury was received in a garage which claimant- entered while waiting" for' repairs to be made on his employer’s motor bus in which he was being carried to his work; that claimant paid his employer for transportation and that on the morning of the injury the bus arrived at his employer’s plant about nine o’clock a. m., and where no finding is made on. the question whether the passenger in the bus was on the employee’s or" th© employer’s time, the matter will be remitted for further consideration.</p> <p>If the claimant was in the course of his employment while riding in the bus, the fact that the bus, while being operated by his employer, became unable to run and required services at the garage, did not deprive him, while at the garage of his position as an employee.</p>

Motion by the claimant, Elizabeth Adams, to dismiss the appeal herein of the Globe Indemnity Company, insurer, on the ground that the notice of appeal was not served in time.

Appeal by the defendants, West Side Trucking Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 8th day of February, 1921.

<p>Certiorari issued out of the Supreme Court and attested on the 8th day of December, 1920, directed to the Public Service Commission of the State of New York, Second District, and others, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had relative to compelling the relator to provide transportation service between the Barge canal terminal at Erie Basin, city of Buffalo and shippers located along its tracks in the city of Buffalo and elsewhere in the State of New York, and shippers located at any other ■ point in the State of New York on the tracks of any connecting railroad, with which the relator can interchange traffic, and further compelling the relator to furnish the necessary rolling stock for traffic at said terminal and to operate the same by its own motive power and servants, and further compelling the relator to file tariffs for all service into and out of said terminal and on its connecting lines.</p>

Appeal by the defendants, Charles H. Sager Company and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 24th day of January, 1921.

Appeal by the defendants, George Groff and another, from an award of the State Industrial Commission, dated the 3d day of March, 1921, rescinding an award of said Commission entered in the office of said Commission on the 13th day of November, 1920, and restoring an award of said Commission entered in the office of said Commission on the 17th day of June, 1920.

<p>Workmen’s Compensation Law— “ workmen or operatives ” within § 2, second group 46 —cashier in delicatessen store and lunch room is not workman or operative — cook, waiter, counterman and general utility man are workmen or operatives.</p> <p>A cashier in a combination lunch room and delicatessen store, whose regular if not sole duty is to receive money, is not a workman or operative within second group 45 of section 2 of the Workmen’s Compensation Law.</p> <p>The cook, the waiter and the counterman, whose duties consisted in cutting meats at the counter and selling articles from it and in assisting as waiter during the lunch hour, and the general utility man, were all workmen or operatives, within the meaning of the law; hence there were four workmen regularly employed and the employment was within the Workmen’s Compensation Law.</p>

<p>Workmen’s Compensation Law — award — Industrial Commission on reconsideration may increase original award as of date thereof where claimant has not cashed drafts sent to him in payment — § 22, providing that review shall not affect award as to moneys paid not applicable — provision of § 16 that wages in excess of $100 per month are not to be considered in computing compensation applies to death benefits only.</p> <p>The State Industrial Commission has the power to modify an award on reconsideration and increase the same as of the date of the accident, where the claimant had not, at the time the award was modified, received the money on any of the drafts sent to him by the insurer, for section 22 of the Workmen’s Compensation Law, providing that a review shall not affect an award as regards any moneys already paid, is not applicable except where the claimant has actually received the money.</p> <p>The claim is for injuries to the claimant and not for death benefits, and the Commission was not limited by section 16 of the Workmen’s Compensation Law which, at the time of the accident, provided that any excess of wages above $100 per month could not be considered in fixing the compensation, for that provision applies to death benefits only.</p>

<p>Schools — expulsion of student from law school for seditious, unpatriotic and anarchistic utterances — faculty acted within its jurisdiction and in exercise of honest discretion based on facts justifying exercise thereof •— mandamus — purpose of alternative writ is to determine disputed facts upon which rightful exercise of jurisdiction depends.</p> <p>The relator, a student in the Albany Law School, was expelled therefrom by the faculty, after a hearing, on the ground in part that he had made seditious, unpatriotic and anarchistic utterances against the American government and was, therefore, an undesirable and unfit person to attend at the said school. On appeal from an order directing the issuance of an alternative writ of mandamus commanding the said school to reinstate the relator, held, on the petition and the answering affidavits, that the said faculty, in expelling the relator from the school, acted within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based on facts within its knowledge amply justifying its action, and that the alternative writ should not have been issued.</p> <p>It is not the office of an alternative writ of mandamus to effectuate a redetermination by a court of facts relating to the conduct of an expelled student when such facts have already been decided against the student by the faculty of a school having jurisdiction. Its only function is to determine the disputed facts upon which the rightful exercise of such jurisdiction may depend.</p>

<p>Appeal by the plaintiff, Ford Garage Co., Inc., from a judgment of the County. Court of Washington county in favor of the defendant, entered in the office of the clerk of said county on the 13th day of June, 1921, upon the dismissal of the complaint on the merits at the close of the case, and also from an order entered in said clerk’s office on or about the same day, setting aside the verdict of a jury in favor of the plaintiff rendered by direction of the court and dismissing the complaint.</p>

Appeal by the plaintiff, Ralph C. Jacobs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 7th day of February, 1921, upon the dismissal of the complaint on the merits at the close of plaintiff’s case, and also from an order entered in said clerk’s office on the same day directing the dismissal of the complaint upon the merits.

<p>Schools — certiorari to review action of board of education in refusing to audit claims by architects for plans and estimates for new school building — no adequate remedy at law — board of education of city of Utica had power to engage architects to plan new school building — Education Law, § 875, construed — board not required to advertise for estimates on professional services — board not required before engaging architects to pass resolution provided for by Education Law, § 875, subd. 3 — Education Law, § 877, subd. 10, limiting right to incur liability not applicable — board of education had power to audit claim — Second Class Cities Law, § 79, not applicable.</p> <p>The relators, professional architects, in pursuance of a resolution of the board of education of the city of Utica, prepared plans and drawings for a new school building together with a detailed estimate of the cost of erecting such building. After advertising for bids for the construction of said school building the said board abandoned the project and refused to audit the relators’ claim on the ground that it did not have the legal right so to do.</p> <p>Held, that the claim having been presented to the board and it having disallowed it, certiorari is the proper remedy; the relators have no adequate remedy at law.</p> <p>By virtue of section 875 of the Education Law the said board had the power and authority to build a new school building if in its judgment it was needed, upon passing a resolution specifying in detail the necessity therefor and estimating the funds necessary, and, having that power, it had the power to employ architects to draw the necessary plans and to make the necessary estimates and specifications.</p> <p>The requirement of subdivision 8 of section 875 of the Education Law that the said board shall advertise for estimates where the amount involved is over $1,000 does not apply to a situation involving professional services.</p> <p>It was not necessary for said board to pass a resolution, under subdivision 3 of section 875 of the Education Law, specifying in detail the necessity for a new school building and estimating the amount of funds necessary for such purpose, before engaging relators to prepare the plans, for the services of the relators were in their nature necessary, in part at least, to enable the board to pass the resolution, and furthermore the board cannot take advantage of its failure to do that which it should have done.</p> <p>The contract employing relators was not void under subdivision 10 of section 877 of the Education Law which prohibits the board from incurring a liability chargeable against the funds under its control in excess of the amount appropriated.</p> <p>The said board had the power to audit the claim of the relators, and if it allows the claim it has the power to put into its budget an item therefor to secure funds with which to pay it, and the fact that at the time the claim is presented there may not be funds available to pay the same does not reheve the board from passing on the claim on its merits.</p> <p>Section 79 of the Second Class Cities Law, prohibiting a board from expending any sum or entering into any contract therefor “ for any of the purposes for which provision is made in the annual estimate in excess of the amounts appropriated in said estimate,” is not applicable, since the contract in question did not involve the expenditure of money for any of the purposes for which provision was made in the annual estimate.</p>

<p>Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Livingston, entered in the office of said surrogate on the 4th day of December, 1920, modifying an order theretofore entered in said surrogate’s office on the 29th day of September, 1919, fixing and assessing a tax upon the transfers of property of the deceased, William Austin Wadsworth, under the law relating to taxable transfers of property.</p>

Appeal by the defendant, The State of New York, from an order and judgment of the Court of Claims in favor of the plaintiff, entered in the office of the clerk of said court on the 28th day of May, 1920, awarding damages to the claimant for appropriation of property by the State in the construction of the Barge canal.

<p>State — claim against State for loss suffered by depositor of bank from torts of bank officials and officials of State Banking Department — failure of enabling act (Laws of 1919, chap. 681), conferring jurisdiction on Court of Claims to hear claims of and make award to depositors of bank, to acknowledge or create liability, bars recovery.</p> <p>A claim against the State made by a depositor of the Union Bank and the Borough Bank of Brooklyn based on the tortious acts of the bank officials and of the officials of the State Banking Department is not enforcible under an enabling act (Laws of 1919, chap. 581) conferring jurisdiction on the Court of Claims to “ hear,” “ determine,” and “ make an award ” in the case of depositors of the Union Bank and the Borough Bank of Brooklyn “ for damages sustained through the failure of the said banks and each of them,” since the act fails to distinguish between the torts of the bank officials for which the State would not be hable and the torts of the officials of the State Banking Department for which it might make itself hable. Furthermore, the State, in the absence of special enactment, is never liable for the tortious acts of its officers, and it did not by said act recognize, create or assume any habihty, but it was distinctly provided “ that nothing in this act nor the passage of the same shah be deemed or construed to have acknowledged or created any habihty on the part of the State, nor shall the passage of this act be construed as debarring the State from interposing any legal or equitable defense which it would otherwise have against the alleged claims except the Statute of Limitations.”</p>

<p>Corporations — peremptory writ of mandamus for examination of general books and documents of corporation and appraisal of its assets will not issue where there is irreconcilable conflict between moving and opposing affidavits — demand by relator for peremptory writ equivalent to demurrer where moving and opposing affidavits conflict.</p> <p>A peremptory writ of mandamus will not issue directing an examination of all books and documents of a corporation and an appraisal of its assets by a stockholder, where there is an irreconcilable conflict between the moving and opposing affidavits, and where, if the opposing affidavits are to be credited, the petitioner already has had a full and complete examination of the books, papers and assets of the corporation.</p> <p>Where, upon a motion for a peremptory writ of mandamus, opposing affidavits are read which are in conflict with the averments in the affidavits of the relator and, notwithstanding this, the relator demands a peremptory writ, such demand is equivalent to a demurrer and the question as to the right to the writ must be determined upon the assumption that the averments of the opposing affidavits are true.</p>

Appeal by the defendants, Excelsior Shook and Lumber Co., Inc., and others, 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 26th day of July, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

<p>■ Appeal by the defendant, Albrecht Pagenstecher, Jr., 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 28th day of June, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in favor of the plaintiff.</p>

<p>Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 20th day of December, 1920, upon the verdict of a jury rendered by direction of the court.</p>

<p>Appeal by the defendant, Ike Buss, 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 11th day of October, 1920, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the plaintiff, Martha E. Gropper, 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 May, 1921, denying plaintiff’s motion for judgment on the pleadings, and sustaining defendants’ demurrer to the complaint.

Appeal by the defendant, Neumont Realty Corporation, and the purchaser, Forty-fifth Street Realty 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 27th day of September, 1921, denying a motion made by a bidder upon a mortgage foreclosure sale and also by the owner of the equity of redemption to set aside an alleged resale, to reinstate a bid, and to require the referee to…

<p>Wills — construction — provision in will for division of residuary estate — direction to sell real estate and pay over proceeds works equitable conversion — residuary clause providing for distribution among widow and other legatees — widow’s share if not distributed to her before her death to be divided among other residuary legatees — provision that estate should be settled within five years did not cut down contingent estate of residuary legatees in widow’s undistributed share — remaining residuary legatees entitled to undistributed portion of widow’s share though she did not die within five-year period — executor had power to sell after five-year period.</p> <p>The testator by the terms of his will after directing the sale of any or all of the real estate of which he died seized, authorized the executor to divide the residue of the estate into eight equal shares, two to his wife and one to each of six persons named therein. There was a proviso that if either of the said persons should predecease the testator, the share of the one so dying should go to his or her heirs or next of Mn. It was also provided that “ In case of the death of my wife * * * before the time when my executor may be able to pay in full these residuary shares, then such two shares or any portion of the two shares of this residuum hereunder above .designated for her in the hands of my executor shall be ■ distributed equally among the above six persons, on the same terms that each of said six persons takes his or her share aforesaid.” The will then provided: “ I direct that my estate shall be settled and the terms of my will fully carried out by my executor by the end of the fifth year after my decease, and sooner than that if possible.” The testator’s wife survived the five-year period by two months and four days and at her death there remained one parcel of real estate, a portion of the residuary estate, that had not been sold.</p> <p>Held, that the explicit direction to the executor to sell the real estate and pay over the proceeds worked an equitable conversion of the real estate into personalty, and subjected it to the rules of law governing the devolution of personal property.</p> <p>While it was apparently the intention of the testator that his real estate should be speedily sold, he, however, vested his executor with discretion as to time, terms and manner of sale, and the provision limiting the executor to five years in settling the estate, which provision was not a part of the clause conferring the power of sale, or the clause relating to the distribution of the residuary estate, was directory and not mandatory and did not have the effect of limiting the executor’s power of sale or of changing the provisions of the will for the distribution of the residue.</p> <p>Accordingly, at the end of the five-year period, the widow’s undistributed share did not pass to her absolutely, but remained in the executor and on her death thereafter the executor had the power to sell the real estate remaining in the residuary estate and distribute the undistributed share of the widow among the surviving residuary legatees and the personal representatives of the deceased legatees.</p>

Appeal by the defendants, Jessie Richards 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 13th day of April, 1921, resettling an order entered in said clerk’s office on the 19th day of March, 1921, denying defendants’ motion for an order vacating and setting aside sub-paragraphs (3), (4) and (5) of paragraph 6 of a judgment entered in said clerk’s office on the 6th day…

<p>Contracts — action for breach — complaint in action for commissions on sales made sets out cause of action on contract and not for fraud, although plaintiff alleges that defendants furnished false statements of business done as basis for plaintiff’s commissions.</p> <p>A complaint in an action for commissions due the plaintiff as a salesman states a cause of action on contract rather than for fraud, where under it he is required to prove only the rendition of his services, the amount of goods he sold or those which the defendants sold on renewal orders in his territory and the commissions earned, and where it contains nothing save such averments as are appropriate to a cause of action on contract.</p> <p>The further allegation in the complaint that the defendants furnished false statements of the amount of business done by them which was subject to plaintiff’s commissions does not change the action-to one for fraud, where there are no allegations of facts showing -damages by reason of the falsity of the statements and plaintiff’s reliance thereon.</p>

<p>Conversion — acts not constituting conversion — action against stockbroker for conversion of stock carried on margin — stock sold after possession had been taken by assignee for benefit of creditors — subsequent discharge of appellant in bankruptcy — claim against appellant not in conversion but on contract — complaint should have been dismissed on proof of discharge in bankruptcy — trial — failure to object to exhibit offered on trial as not being proper proof of discharge in bankruptcy bars consideration on appeal.</p> <p>In an action for the conversion of certain stock of the plaintiff carried by the appellant’s firm on margin, it appeared that the stock was purchased on March 26, 1907; that on May 24, 1907, the appellant’s firm failed and made a general assignment for the benefit of creditors and on the same day a creditor’s petition in bankruptcy was filed against the appellant, after which time neither the appellant nor any person connected with the firm had anything to do with the firm’s assets nor had they any stock belonging to it in their possession; that the appellant never saw plaintiff’s stock or disposed of it or received the proceeds thereof; and that whatever became of the stock it happened after the assignee for the benefit of creditors had taken possession of the assets of the appellant’s firm.</p> <p>Held, that there is no evidence of any conversion of the stock in question by the appellant and the claim which the plaintiff had against the appellant arising from the sale of stock carried by his firm was not excepted from the operation of appellant’s discharge in bankruptcy;</p> <p>That plaintiff’s claim is one founded upon contract, and that the appellant’s right to a dismissal of the complaint became complete upon proof of his discharge in bankruptcy, since the introduction of such proof made a prima facie defense.</p> <p>The failure of the plaintiff to object on the trial that the exhibit proffered as evidence of appellant’s discharge in bankruptcy was not in form and effect the order granting the discharge or that it was not proper proof of such order precludes urging such objection on appeal.</p>

Appeal by the defendants, John Scott Browning 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 July, 1921, granting plaintiff’s motion to discontinue the action upon payment of costs.

<p>Corporations — directors and officers — application to set aside election of officer and director — removal of officer and director void where by-laws contain no provision warranting same and there was failure to prefer charges justifying removal.</p> <p>Where the by-laws of a corporation contain no provision warranting the removal of any officer or director there can be no removal from office without cause.</p> <p>Accordingly, the removal of the petitioner as secretary and treasurer and as director of a corporation was without justification and was null and void, where it appears that he received no notice of any charges against him; that no cause was assigned why his offices should be declared vacant; that when the notice of the meeting was given and the meeting itself held he had been guilty of no act of misfeasance or non-feasance which would justify his removal from office, and, at most, he was in temporary financial difficulty in his own business which had no connection with the affairs of the corporation, and where nothing was disclosed save the desire upon the part of a codirector to obtain control of the corporation by taking advantage of the petitioner’s temporary business embarrassment and to secure to himself the control of the stock and the affairs of the corporation.</p>

<p>Appeal by the defendants, Douglas Barnes 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 6th day of October, 1921, granting plaintiffs’ motion for a preference and setting the cause down for hearing in Trial Term, Part III, for October 21, 1921.</p>

<p>Holidays — Sunday is legal holiday — Sunday excluded as “legal holiday ” in computing period under uniform bill of lading after which carrier’s liability terminated.</p> <p>Sunday, in this and most jurisdictions, always has been deemed a legal holiday and all work thereon, with certain exceptions, has been prohibited.</p> <p>Hence, an intervening Sunday will be excluded in the computation of time under section 5 of a uniform bill of lading which provides that freight not moved within forty-eight hours, exclusive of legal holidays, after due notice of its arrival, may be kept by the carrier as therein provided subject to its “ responsibility as warehouseman only.”</p>

Motion by the defendant, The Edison Portland Cement Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after the rendition of a verdict in plaintiff’s favor upon a trial before the court and jury at the New York Trial Term in March, 1921.

Appeal by the defendant, Guaranty Trust Company of New York, as executor, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5 th day of July, 1921, denying said defendant’s motion to set aside the service of a summons.

Appeal by the defendant, The City of New York, from a judgment of the Supreme -Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on or about the 5th day of May, 1920, upon the decision of the court rendered after a trial at the Kings Special Term, and also from an order, entered in said clerk’s office on or about the 19th day of April, 1920, denying defendant’s motion to amend its amended answer.

Appeal by the Methodist Episcopal Hospital in the City of Brooklyn, residuary legatee, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 19th day of April, 1921, which, as incidental to an accounting by the Brooklyn Trust Company, as executor of the last will and testament of Alfred L. Simonson, deceased, construed certain provisions of it and directed distribution accordingly.

<p>Appeal by the plaintiff, Irene Yates Shaffer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of August, 1921, upon the decision of the court, rendered after a trial at the Kings Special Term, dismissing the complaint.</p>

<p>Insurance — life insurance — action to recover on policy — defenses of breach of warranty and rescission on ground that insured was not in good health when first premium paid — elements of defense of. breach of warranty — breach based on chronic intestinal obstructions existing since birth but unknown to insured — warranty material as matter of law—-falsity of representation question for jury — representation not fraudulent as matter of law — whether insured was in good health when first premium paid question of fact — counsel for plaintiff did not consent to trial of issues of fact by court or waive jury trial—-complaint improperly dismissed.</p> <p>To establish the defense of breach of warranty in an action on a life insurance policy it must be shown that the representation made by the insured was material, that it was false, and if false, that it was fraudulent.</p> <p>The representations contained in the application by the insured that she was in sound condition mentally and physically, that she had never had any bodily or mental infirmity or deformity, and that she had not been disabled nor had she received any medical or surgical attention within five years from the date of the application, were, as a matter of law, material.</p> <p>The defense of a breach of warranty was based on the allegation that the insured had chronic intestinal obstructions with disease causing adhesions. It appeared that the insured went to a hospital for a minor operation to cure the effect of a laceration caused by child birth thirty years previously, which, up to the time when the application for the policy was made, had no appreciable effect upon her comfort, well-being or general health; that while under the influence of anaesthetics, the physician discovered an intestinal abnormality; that this condition had continued from the birth of the insured without any indication that it interfered with proper functioning; that insured did not know of that condition, and that the major operation performed to remedy it resulted fatally. Held, that it cannot be said, as a matter of law, that the insured’s representations were false, but on the contrary whether this condition was such as to render false her representations that she was in sound condition mentally and physically, was a question of fact to be determined by the jury.</p> <p>And even if said representations were false, they were not fraudulent for the condition was entirely unknown to the insured, and a representation which is true to the best of the knowledge of the insured is not fraudulent.</p> <p>Therefore, the defense of warranty failed and the complaint should not have been dismissed, for while said representations were material as a matter of law, it was a question of fact for the jury to determine whether they were false and as a matter of law they were not fraudulent.</p> <p>The clause in the policy prescribing as a condition to the validity thereof a state of good health at the time of the payment of the first premium, was meant to cover any substantial change between the date of the application and the payment of the first premium. If the representations as to the condition were true when made, and if the same condition continued to the time of the payment of the first premium, it follows that, for the purpose of giving validity to the policy, the assured was in good health at that time, but if the representations were false and the assured was not in good health when the first premium was paid, the defense was established, but their falsity was a question of fact for the jury, and the court should not have dismissed the complaint by ruling as matter of law that the assured was not in good health when the first premium was paid.</p> <p>Plaintiff’s counsel did not intend to submit the decision of this question of fact to the court and waive a jury trial, and from the record it appears that the court did not intend to decide any question of fact, for it plainly stated that it was deciding the case as a matter of law. It was not necessary, therefore, for the plaintiff’s counsel to request the submission of any facts to the jury in order to save its rights.</p>

Appeal by the defendant, Benjamin Skopp, 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 9th day of July, 1921, upon the verdict of a jury for $20,000, and also from an order, entered in said clerk’s office on the 30th day of June, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Crimes — particular crimes — keeping intoxicating liquors in violation of Penal Law, art. 113 — searches and seizures — motion to vacate search warrant procured under Code of Criminal Procedure, § 802b — complaint on which warrant is issued to search premises for intoxicating liquor must show grounds for belief that liquor is kept in violation of Penal Law, art. 113 — complaint cannot be aided by facts discovered on execution of warrant—• warrant is not sufficient which does not contain notice required by Code of Criminal Procedure, § 802b, as to time and place where claimant must show cause why liquor seized should not be forfeited — notice must be embodied in warrant.</p> <p>A complaint to obtain a search warrant under section 802b of the Code of Criminal Procedure must set forth facts which show grounds for belief that liquor is kept in violation of article 113 of the Penal Law or that there is probable cause for believing that liquor is so kept.</p> <p>Accordingly, a warrant to search defendant’s premises for intoxicating liquors, claimed to be possessed illegally, will be vacated, where the only facts shown in the complaint or affidavit are the arrest of a man, the search of his person and the finding of a bottle of whisky thereon and statements by said man to deponent that he obtained the liquor from the defendant.</p> <p>The allegations contained in the complaint cannot be helped out by facts discovered by means of the search warrant issued thereon.</p> <p>Under section 802b of the Code of Criminal Procedure, the defendant was entitled to at least ten days’ notice of the time and place, where he must appear and show cause why the liquor seized should not be forfeited, which notice must be embodied in the warrant, and for the purpose of giving the notice, the officer making the seizure is required to deliver a copy of the warrant to the person “ keeping ” the liquor. And so, a warrant issued on April 16, 1921, and executed on the same day, which did not contain said notice is void and should be vacated, though on April 23, 1921, the warrant was amended nunc pro tunc as of April sixteenth, by adding thereto the notice required by statute and made returnable on April thirtieth. The defendant was entitled as a matter of right under the statute to ten days’ actual notice served at the time of the seizure of the liquor and not at some subsequent time.</p>

<p>Schools — pupils and discipline — action for damages suffered by reason of plaintiff’s expulsion fr.om defendants’ military academy for insubordination — when‘suspension or expulsion is justifiable — future status of pupil respecting his relations with school lies with school authorities — erroneous instructions — complaint dismissed.</p> <p>In an action for damages claimed to have been suffered by reason of plaintiff’s expulsion from defendants’ military academy, it appeared that as the result of an order promulgated by the faculty of the institution respecting study, the' plaintiff, together with his brother officers of the cadet battalion, of which he was major, tendered their resignations in protest. At the next formation, the commissioned officers absented themselves and gathered in plaintiff’s room from whence shouts emanated when the formation resulted in confusion. A faculty meeting was held; the boys were given- an opportunity to withdraw their resignations and upon their refusal they were indefinitely suspended. The office of cadet major was abolished; the other boys were ultimately taken back and, because it was believed his presence at the institution would interfere with the discipline, the plaintiff was told he was not wanted.</p> <p>Held, that the plaintiff was justly and legally suspended, and that thereafter he stood in the same relation toward the school as if he had never been a pupil therein and the defendants could accept him as a pupil, if they saw fit, without any conditions, or, if they saw fit, they could impose conditions or decline to accept him at all.</p> <p>Where the trial court in its charge to the jury had already characterized the act of the plaintiff as an act of insubordination justifying suspension or expulsion, it was error to subsequently charge that the plaintiff must be treated the same as the other pupils who had been suspended or a good reason given for discrimination, since the charge permitted the plaintiff to recover upon a cause of action which he did not plead and which has no legal basis, and, therefore, the complaint should be dismissed.</p>

<p>Trusts — construction — deed by grandfather to himself in trust for named grandchildren creates passive trust under Real Property Law, § 93, and title passes to grandchildren — recording deed is presumptive evidence of delivery.</p> <p>A deed of certain premises by a grandfather to himself in trust for named grandchildren, all of whom were under fourteen years of age, and were living with the grantor, without any specifications of the terms of the trust, created a passive trust under section 93 of the Real Property Law and title passed at once to the grandchildren.</p> <p>A finding of delivery of the deed which was duly recorded was not against the weight of the evidence in view of the established rule that recording is presumptive evidence of delivery, though the deed was found among the grantor’s effects after his death.</p>

<p>Executors and administrators—nature of executor’s right to property before probate — right of husband who is executor and sole residuary legatee of wife — proceedings for discovery of personal property of wife transferred by husband may be dismissed where it is shown that property is not needed for debts, taxes and costs.</p> <p>An executor, before the probate of a will, has the right only to take possession of the property of the estate and preserve it for administration.</p> <p>A husband, who is executor and sole residuary legatee, gets no title except . as executor and that for purposes of conservation only, until the estate is administered or until moneys have been furnished in good faith adequate to pay all charges against the estate and the cost of the administration.</p> <p>In proceedings for discovery instituted by the co-executor of a will it appeared that the testatrix, after making one bequest, bequeathed the remainder of her property to her husband as residuary legatee and appointed him as a co-executor; that the husband paid the specific bequest and assumed to and did give to the respondent, whom he- had married, some personal property belonging to the estate, and that the will was not admitted to probate until after the husband’s death, Held, that the usual course of administration would require the return to the executor of all the personal property so given to the defendant; however, if the defendant can prove that the same is not required to pay the debts, taxes or administration expenses of the testatrix, then the proceeding may be dismissed.</p>

<p>Corporations — suit by judgment creditor to set aside chattel mortgage given in violation of Stock Corporation Law, § 66 — nature of action — ten-year Statute of Limitations applicable — res judicata — judgment in favor of defendants in action between same parties to set aside mortgage on ground of common-law fraud not res judicata.</p> <p>A suit by a judgment creditor against a corporation and a chattel mortgagee to set aside a chattel mortgage on the ground that it was given in violation of section 66 of the Stock Corporation" Law, is not one to recover upon a liability created by statute other than a penalty or forfeiture, but is a suit in equity for the establishment by proof of those elements set forth in said section which if established would decree. the invalidity of the chattel mortgage, and it is, therefore, governed by the ten-year Statute of Limitations.</p> <p>A judgment in favor of a corporation and a chattel mortgagee in an action brought against them by a judgment creditor of the corporation to have the chattel mortgage set aside on the ground of common-law fraud is not res judicata of the issues in a subsequent suit between the same parties to have the same mortgage set aside on the ground that it was given in violation of section 66 of the Stock Corporation Law, for the issues in the two actions are different. In the former action it was necessary for the plaintiff to show scienter on the part of the transferee, while in this suit knowledge by the transferee of an intended fraud is not an essential element and recovery may- be had though the transferee took the mortgage in good faith.</p> <p>Hubbs, J., dissents.</p>

Appeal, in the first above-entitled action, by the defendant, Pettebone-Cataract Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 14th day of July, 1920, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the plaintiff, James A. Trowbridge, from a judgment of the Supreme Court in favor of the defendant College Holding Co. Inc., entered in the office of the clerk of the county of New York on the 10th day of July, 1920, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, John Barton Payne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 14th day of October, 1920, on the verdict of a jury for $12,000, and also from an order, entered in said clerk’s office pn the 27th day of October, 1920, denying defendant’s motion for a new trial made upon the minutes, and because of the improper acts of the court officers and the jury during the…

Appeal by the defendant, William Spiegelman & Company, Inc., 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 Chautauqua on the 18th day of July, 1921, denying defendant's motion to set aside the service of the summons.

Appeal by the defendants, Howieson and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 24th day of November, 1920.

Appeal by the plaintiff, Anna Pallocco, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Ontario on the 25th day of February, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order, entered in said clerk’s office on the same day, directing that the complaint be dismissed.

<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 plaintiffs, Jacob Hackenheimer and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 6th day of May, 1921, upon the decision of the court rendered after a trial at the Erie Equity Term.

Appeal by the plaintiff, Columbia Overseas Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of August, 1921, denying plaintiff’s motion for judgment on the pleadings, and granting defendant’s motion for judgment on the pleadings, and dismissing plaintiff’s amended complaint.

Appeal by the defendants, Thompson J. S. Flint and another, from a judgment of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of September, 1921, upon the report of a referee to whom the issues were referred to hear and determine.

Appeal by the plaintiff, Lucy E. Doherty, 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 11th day of April, 1921, modifying a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Sixth District, in plaintiff’s favor.

Appeal by the defendants, David Franklin and another, from a judgment of the Court of Special Sessions of the City of New. York, entered in the office of the clerk of said court on the 26th day of July, 1920, convicting them of a violation of section 2354 of the Penal Law.

Appeal by the plaintiff, Adams-Flanigan Company, from a judgment and order of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of said court on the 10th day of March, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of The Bronx, Second District, in favor of the defendants.

Appeal by the plaintiff, Theodore Economu, from an order and determination of the Appellate Term of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 29th day of June, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, dismissing the plaintiff’s complaint on the merits.

Appeal by the petitioner, The Sergent Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of September, 1921, denying the petitioner’s motion for an order directing the Superintendent of Banks to pay over certain funds, as resettled by an order, entered in said clerk’s office on the 11th day of October, 1921.

<p>Vendor and purchaser — action for purchase money — sale of farm by agent of vendor to agent for undisclosed principal — action by vendor against agent of undisclosed principal — vendor is entitled to recover where agent did not disclose who his principal was and where vendor establishes that she was undisclosed principal of her agent and parted with real estate in question — agent of vendor not necessary party.</p> <p>In an action against the agent of an undisclosed principal to recover on a contract not under seal for the sale of a farm, the complaint should not have been dismissed at the close of the plaintiff’s case on the ground that she had not made her agent a party, where the evidence established that she was the undisclosed principal of the agent who effected the sale, that she parted with title to the real estate in question, and that the only-known party that she dealt with in parting with said title, so that he could control it, was the defendant, who legally bound himself to pay for the land, which was conveyed to his wife, by his direction, by third persons to whom it was conveyed by the plaintiff after the execution of the contract.</p>

<p>Workmen’s Compensation Law — award — award made under § 16, subd. 3, last paragraph, entitled “other cases,” where claimant suffered permanent injury to thorax nerve so that he could not raise his arms above horizontal position but was able to work — award improper which, together with wages, gives claimant income of thirty-three and one-third per cent more than he was earning before injury — claimant not bound to accept work at his former wage.</p> <p>Where a carpenter, earning sixty-eight cents per hour, fell, in the course of his employment, and permanently injured the thorax nerve so that he can only raise his arms to about a horizontal position, and it appears that there is no other injury to the arm, elbow, hand or fingers, and that he is earning fifty-one cents per hour, an award should be made under the last paragraph of subdivision 3 of section 15 of the Workmen’s Compensation Law, entitled “ Other eases,” which provides that “ the compensation shall be sixty-six and two-thirds per centum of the difference between his average weekly wages and his wage-earning capacity thereafter in the same employment or otherwise, payable during the continuance of such partial disability, but subject to reconsideration of the degree of such impairment by the Commission on its own motion or upon application of any party in interest.”</p> <p>It was improper to give the claimant an award which, together with his wages, provided an income of practically thirty-three and one-third per cent more than he was earning before the injury.</p> <p>The refusal of the claimant to accept work at his former wage was not a sufficient ground for the dismissal of his claim.</p>

Appeal by the plaintiff, Commercial Exchange Bank, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1921, denying plaintiff’s motion for judgment on the pleadings.

Appeal by the proponents, Augusta Levy and another, 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 5th day of November, 1921, modifying an order entered in the office of the clerk of said court on the 28th day of September, 1921,' directing the examination .before trial of Augusta Levy and others.

Appeal by the defendant, Alvin Lake, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1921, denying defendant’s motion for judgment on the pleadings consisting of the complaint and demurrer thereto, and overruling defendant’s demurrer to the complaint.

Appeal by the plaintiff, Norman Forbes Robertson, 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 12th day of April, 1921, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Charles Freeman, 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 February, 1921, affirming a judgment of the City Court of the City of New York in favor of the defendant.

<p>Appeal — order granting motion for judgment on pleadings resettled by striking from recital therein, designation of briefs of counsel as part of papers upon which order was made, where said, briefs were not filed and appeal was pending from said order and from judgment entered thereon — motion to compel defendant to accept plaintiff’s notice of appeal granted.</p> <p>Where an order granting defendant’s motion for judgment on the pleadings recited that it was made upon default upon certain papers and also upon the briefs of counsel, but said briefs were not filed, the plaintiff, on appealing from said order being unable to get the papers certified because they did not include said briefs, is entitled to have said order resettled by striking out from the recital therein the designation of the briefs of counsel as part of the papers upon which it was made, it appearing that an appeal was already pending taken in due time, both from the order and from the final judgment entered thereon, though the notice for resettlement was made after the time to appeal from the order had expired, for the plaintiff had the right to test upon appeal from the judgment the validity of the order upon which it was granted.</p> <p>Where both the final judgment on the pleadings and the order directing the same erroneously recited that they were made upon default, and this error was corrected by consent and a new order and judgment thereon entered, a motion to compel the defendant to accept plaintiff’s notice of appeal served within thirty days from the entry of the judgment after said correction should be granted, it being in proper form to review not only said judgment, but the intermediate orders which led up to the same.</p>

<p>Attachment — motion to vacate — affidavit in support of attachment must contain evidentiary facts tending to prove cause of action.</p> <p>A motion to vacate an attachment will be granted where the affidavit in support of the attachment fails to state evidentiary facts tending to prove the cause of action, since such an affidavit must contain evidence from which the court can determine that the ultimate facts stated in the pleading can be substantiated.</p>

<p>Appeal by the petitioner, Olivia Jettinghoff, 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 20th day of May, 1921, denying petitioner’s motion for a writ of mandamus.</p>

<p>Sales — contract for sale of goods to be shipped from foreign country construed — time of essence of contract — strike clause construed to mean that “ contract ” and not “ delivery ” was contingent on strikes — submission of controversy — court not permitted to find by inference facts in addition to those stipulated.</p> <p>Upon the submission of a controversy it appeared from the agreed statement of facts that the plaintiff had contracted in writing to sell and the defendant to buy certain goods to be shipped from the “ United Kingdom,” “ July-August, seller’s option,” and that the contract also contained the following clause: “ This contract is contingent upon strikes, fires, pestilence, riots, war, rebellion and other causes beyond our control.” Defendant wrote to the plaintiff on September first as follows: “ Any quantity called for by said contract not shipped by the end of August, 1920, is hereby cancelled,” and under said letter refused to accept any further goods under the contract. It appeared that the delay in further shipments in July and August and beyond the first of September was caused by strikes at the German works of plaintiff’s suppliers.</p> <p>Held, that the “ contract ” and not the “ delivery ” was contingent upon strikes, and that time was of the essence of the contract;</p> <p>That, therefore, the defendant had the right to cancel the contract on the first of September, so far as goods had not at that time been shipped, and was not obliged to accept any of the goods shipped after that date.</p> <p>A submission of a controversy is strictly limited to the consideration of questions of law arising upon an agreed statement of facts and the court is not permitted to find by inference any other facts in addition to those stipulated.</p>

<p>.Appeal by the plaintiff, Samuel Strasbourger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 16th day of April, 1921, upon the decision of the court rendered after a trial at the Bronx Special Term.</p>

Appeal by the defendant, The New York Consolidated Railroad 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 11th day of December, 1920, denying defendant’s motion for an order directing a separate and prior trial of the issues raised by the separate defense of general release, in an action to recover damages for injuries alleged to have been suffered by reason of the defendant’s…

Appeal .by the defendant, Tiffin Products, Inc., 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 6th day of October, 1921, denying defendant’s motion for a new trial, on the ground of newly-discovered evidence, in an action to recover for personal injuries.

<p>Sales — action for purchase price of cotton goods — defense of breach of warranty that goods delivered were of grade known as “ mercerized special ” and that goods were not shipped within time required—■ evidence — error to exclude buyer’s order for goods where it is referred to in order of seller — intent of parties was that two orders taken together should constitute contract — contract construed to require delivery of grade of goods known as “ mercerized special ” — evidence indicating rejection of goods within reasonable time and. representations as to shipment erroneously excluded.</p> <p>Where in an action for the purchase price of cotton goods to which a defense of breach of warranty was interposed that the goods delivered were not of the grade known as “ mercerized special ” as required by the contract and that the goods were not shipped within the time required, it appears that the buyer gave an order for the goods in writing designated “ Order No. A409;” that on the same day the seller sent to the buyer a subsequent order described as a copy of order No. 88 placed with the buyer which contained a reference to the buyer’s order as follows: “ Customer’s order, No. A409;” that the buyer’s order provided for deliveries in June and July, while that of the seller differed only in the notation “ Sooner if possible;” and that the orders were identical as to color, quantity and price save that the seller’s order described the goods as “ Favorite Repp ” and omitted the further description contained in buyer’s order, viz., “ Mere. Spec.,” meaning mercerized special, it was error for the trial court to exclude from the evidence the buyer’s order referred to in the copy order of the seller which was admitted, as it was apparently the intention of the parties that the two taken together should constitute the contract.</p> <p>Construing the two orders as one contract, it was the duty of the seller to deliver to the buyer goods of the grade known as “ mercerized special.”</p> <p>The action is based on an express contract of sale requiring delivery of “ mercerized special ” cotton goods, and, as the plaintiff did not show delivery of that grade of goods and the defendant was not permitted to present its evidence on which it claims to have rejected the goods after examination and within a reasonable time, the recovery cannot be sustained.</p> <p>The contract called for deliveries in June and July, but while the goods were invoiced on July thirtieth, they were not shipped till August tenth. One case was received on August thirty-first and the other on September twenty-fourth. On September fourteenth, after examination of the first case, the defendant objected to the quality of the goods. It cannot be said, therefore, on the evidence, that as a matter of law the defendant did not reject the goods within a reasonable time and offer to return them. Hence, it was error to exclude the evidence offered by the defendant to the effect that the assignor was notified within a reasonable time after the receipt of the first shipment and before a second shipment arrived, that the goods were not of the quality or grade required by the contract and that the defendant rejected and offered to return them.</p> <p>With respect to defendant’s claim that the goods were not shipped within the time stated in the contract, the trial court should have received evidence offered by the defendant concerning defendant’s representations as to when the goods were shipped, and as to when it ascertained that shipment was not made until after the expiration of the time stated in the contract.</p>

<p>Appeal by the plaintiff, R. Telfair Smith, 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 18th day of July, 1921, denying plaintiff’s motion to vacate an order entered in said clerk’s office on the 20th day of June, 1921, granting him leave to move at the Special Term for hearing contested motions to open his default in failing to reply to defendant’s counterclaim and to serve a reply thereto nunc pro tunc.</p>

<p>Appeal by the defendant, Archer Strauss Rubber 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 11th day of May, 1921, denying defendant’s motion to vacate a warrant of attachment.</p>

<p>Appeal in the first entitled action by the plaintiff, Everett I. Weaver, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Allegany on the 15th day of March, 1919, upon the decision of the court, rendered after a trial at the Chautauqua Special Term, dismissing plaintiff’s complaint upon the merits in a suit to declare a priority of certain receiver’s certificates. Plaintiff sued for himself as such holder and on behalf of all other holders of such certificates. He asked a decree to subordinate the lien of certain mortgage bonds (and the judgment recovered thereon) to the lien of such certificates outstanding, amounting to $3,100,000, and also for other relief.</p> <p>Appeal in the second entitled action by the plaintiff, Frank Sullivan Smith, individually and as receiver, etc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Allegany on the 15th day of March, 1919, upon the decision of the court rendered after a trial at the Chautauqua Special Term.</p> <p>Appeal in the third entitled action by Henry S. Hastings, as receiver, 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 Allegany on the 20th day of November, 1920, denying said receiver’s motion for a rehearing in the matter of the application for receiver’s certificates.</p> <p>The above appeals raise the questions of the rights of such certificate holders, arid the priorities thereof over the. first mortgage, given December 15, 1892, to secure bonds issued by the Central New York and Western Railroad Company, of which issue bonds to the sum of $733,000 are outstanding. Proceedings touching this question of priority have been considered in these suits in Central Trust Co. v. Pittsburgh, S. & N. R. R. Co. (174 App. Div. 800; affd., 220 N. Y. 690; 179 App. Div. 607; 223 N. Y. 347; 189 App. Div. 921; 229 N. Y. 68) and Smith v. Pacific Improvement Co. (104 Mise. Rep. 481).</p> <p>These appeals were transferred to this department from the Fourth Department of the Appellate Division. [See 193 App. Div. 968.]</p>

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

<p>Trial — action on promissory note — motion for dismissal of complaint for failure to serve reply to counterclaims properly denied where prayer for other or alternative relief was not made — order denying motion binding on Trial Term — motion for dismissal of defendants’ counterclaims properly granted where defendants offered no proof in support thereof — evidence establishing consideration for note.</p> <p>A motion for the dismissal of a complaint in an action on a promissory note for failure to reply to defendants’ counterclaims was properly denied where the motion failed to ask for other or alternative relief.</p> <p>It seems, that the order of the Special Term, denying the motion for dismissal of the complaint was binding on the Trial Term.</p> <p>Plaintiff’s motion for a dismissal of the counterclaims was properly granted, as the defendants offered no proof in support of the counterclaims, though the motion was made upon another ground.</p> <p>Consideration for the note was proved where on the trial the plaintiff showed that it was indorsed and delivered before maturity and it appeared that at the time of the transfer of the note to a bank its maker was not aware of any claimed breach of contract by the payee as alleged by the defendants.</p>

Appeal by the defendant, Ocean View Cemetery, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 28th day of June, 1920, upon the decision of the court, rendered after a trial at the Richmond Special Term, adjudging as due to the plaintiffs from said defendant $5,163.58, and establishing their hen therefor, with an order of sale against a certain part of defendant’s cemetery land in…

Appeal by the Comptroller of the City of New York and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of January, 1921, directing the comptroller of the city of New York on behalf of the city of New York to pay to the respondent interest on a certain award from the date of the commissioners’ report to the date of the confirmation thereof.

Appeal by the defendants, Jacques Roberto Cibrario 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 14th day of September, 1921, appointing a receiver pendente lite and granting an injunction, as resettled by an order entered in said clerk’s office on the 26th day of September, 1921.

Appeal by the defendant, Boyer Oil 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 New York on the 2d day of February, 1921, upon the report and award of an arbitrator appointed to hear, ascertain and determine the whole issues, and from an order, entered in said clerk’s office on the same day, denying defendant’s motion for a stay and to vacate, modify and correct the award of the arbitrator,…

Appeal by the defendant, William M. Sullivan, as executor, etc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th'day of July, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of July, 1921, denying defendant’s motion to set aside the verdict and to dismiss the complaint.

Appeal by the defendant, Virginia Iron, Coal and Coke Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1921, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Calvin N. Goldberg, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 10th day of December, 1920, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff.

entered upon a verdict for $7,627.73, and from an order denying a motion for a new trial in an action brought to recover damages for the death of Charles J. Bell by reason of the defendant’s negligence. Judgment and order affirmed, with costs.

<p>Wills — testamentary trusts — appointment of successor trustees — appointment of person whom testator did not want.</p>

<p>Appeal by defendant, Roscoe Crary, from a judgment of the Supreme Court, as amended, in favor of the plaintiffs and against him individually, entered in the New York county clerk’s office July 2, 1919, upon the verdict of a jury and upon a verdict directed for the defendant Dare Lumber Company, and upon a verdict rendered for the defendant East Lake Lumber Company, and also from an order entered July 23, 1919, denying defendant Crary’s motion for a new trial.</p> <p>Judgment and order affirmed, with costs.</p>

Judgment unanimously affirmed, with costs, on the opinion of Tuthill, J., at Trial Term. Kiley, J., not sitting. This court disapproves of findings contained in the defendant’s requests therefor, numbered three, nine, twenty-one, thirty, thirty-one-a, forty-seven, fifty-seven, fifty-eight and sixty, and finds that in respect to all the transactions of the plaintiff with Biden the latter was the authorized agent of the defendant and acted as such.

The action was brought to recover damages for personal .injuries sustained by the plaintiff while a passenger in an automobile owned and operated by the defendant, due to defendant’s alleged negligence and the turning over of said automobile, pinning plaintiff beneath it.

Submission of a controversy pursuant to section 1279 of the Code of Civil Procedure, between the above named parties, involving the authority ■and jurisdiction of Public Service Commission, Second District, of the State of New York, to order or permit the plaintiff to make a service charge of forty cents per consumer per month. Submission dismissed, without costs, on the authority of Woodruff v. People (193 N. Y. 560).