Volume 199 — New York Appellate Division Reports

<p>Appeal by the plaintiff, Pressprich & Son 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 18th day of May, 1921, denying plaintiff’s motion for judgment on the pleadings and sustaining defendant’s demurrer to the complaint herein.</p>

Appeal by the defendant, Gerhard & Hey, 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 9th day of April, 1921, granting plaintiffs’ motion for judgment on the pleadings and overruling defendant’s demurrer.

Appeal by the defendant, Guy LeRoy Stevick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of March, 1921, upon the decision of the court rendered after a trial at the New York Special Term adjudging (1) that plaintiff is the owner of 400 shares of the capital stock of defendant Rock River Petroleum Company, represented by certificate No. 4 issued to the appellant, and on deposit…

Re argument of an 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.

<p>Crimes — habeas corpus — questions reviewable under writ — conviction in Court of Special Sessions of City of New York for misdemeanor of impairing morals of child in violation of Penal Law, § 483 — indeterminate sentence for three years under Parole Commission Act valid — Parole Commission Act constitutional — purpose of act is moral reformation rather than punishment — discriminatory features of act within legislative authority</p> <p>In a proceeding by habeas corpus, instituted by a prisoner in custody under judgment of conviction, the sole inquiry permissible is whether the court pronouncing the judgment had jurisdiction of the offense and of the person of the defendant, and authority to render the judgment for the cause assigned, or whether the term for which the prisoner can be lawfully detained in custody for the offense has expired.</p> <p>The defendant, who was convicted in the Court of Special Sessions of the City of New York of the misdemeanor of impairing the morals of a child in violation of section 483 of the Penal Law, was properly sentenced under the Parole Commission Act to an indeterminate sentence, the maximum duration of which would be three years under said act.</p> <p>It was within the power of the Legislature to confer jurisdiction upon the Court of Special Sessions to impose a punishment of three years’ imprisonment under an indeterminate sentence and such power was not limited by section 2 of article 1 of the State Constitution.</p> <p>The plain purpose of the Parole Commission Act is to give every person who has been convicted of a crime in cities of the first class, punishable by imprisonment in the places specified in the act, an opportunity to benefit by the disciplinary, correctional and reformatory purposes of the institutions under the jurisdiction of the department of correction, unless the trial court deems the offender mentally or physically incapable of being substantially benefited thereby. The legislation has for its object moral reformation rather than punishment.</p> <p>Said act is not unconstitutional because it discriminates or may discriminate between persons convicted of misdemeanors in the city of New York or other first-class cities, and those convicted in other parts of the State for the same offense.</p>

<p>Arbitration — parties — arbitration clause in assignable contract may be enforced by receiver of one of parties — receiver is party to contract within meaning of Arbitration Law, § 2.</p> <p>Where a contract is assignable, an arbitration clause therein is an integral part thereof, and may be availed of by either party or his legal representatives or assigns.</p> <p>Accordingly, an arbitration clause in a contract for the sale of goods, which provides that “ Disputes or claims of whatsoever nature relating to this contract, shall be settled by arbitration by the Arbitration Committee, N. Y. Produce Exchange,” and is founded upon valuable considerations between the original parties, is enforeible by a receiver of the seller possessing power to institute suits at law or in equity to recover damages and demands existing in favor of the seller; such a receiver is a party to the contract, within the meaning of section 2 of the Arbitration Law.</p>

<p>Municipal corporations — contracts — proceedings for peremptory writ of mandamus directing comptroller of city of New York to draw warrant in favor of petitioner, assignee of contractor, under finding in arbitration award based on agreement of parties — delay in asking for payment not defense where city participated in all proceedings subsequent to award — Statute of Limitations not applicable — waiver — subsequent contract construed as not indicating waiver of any rights or obligations under award — car control device attached to subway express car falls within definition of word “ equipment ” as defined in contract — determination of Transit Construction Commissioner conclusive upon comptroller in absence of fraud, collusion or palpable error — duty of comptroller to issue warrants purely ministerial and not discretionary •— comptroller has no power to review acts of Public Service Commission or board of estimate and apportionment — peremptory writ of mandamus granted.</p> <p>In proceedings for a peremptory writ of mandamus directing the comptroller of the city of New York to draw a warrant in favor of the relator, a subway construction company, upon the voucher of the Transit Construction Commissioner, it appeared that in 1900 the city of New York entered into a contract for the construction, equipment, maintenance and operation of a certain rapid transit railroad in the city; that under the contract, described as contract No. 1, the city was to pay the contractor a certain sum for the construction of the road, plus additional amounts for real estate and terminals, the contractor to equip, maintain and operate the railroad at his own cost for a term of years specified in the leasing provision in the contract; that by its terms, the chief engineer of the board of rapid transit railroad commissioners was to determine, subject to review by arbitration, the reasonable value of any work done or materials additionally required and the amount of deduction to be made from the contract price because of work omitted; that the contractor presented claims for alleged additional work and materials and the city made claims for deductions by reason of the omission of certain work required to have been done under the contract; that the chief engineer of the Public Service Commission made his determination in respect to the conflicting claims which in view of its unsatisfactory nature was submitted to a board of arbitrators; that the arbitrators, after proceedings in progress for two and one-half years, agreed that there was due the contractor the sum of $2,260,534.58; that the parties, on December 30, 1911, entered into a final agreement of settlement based upon that amount, empowering the board of arbitrators to make the final award to the petitioner, as assignee, under contract No. 1 which was approved by the board of estimate and apportionment of the city of New York who directed the comptroller to issue corporate stock of the city required to pay the award; that the agreement providing for the award also provided for its payment in installments, for the construction of new subways, for additions to the system, or for new equipment where the additions were not permitted by the city as extras under existing contracts. It also appeared that the agreement provided that the use of the award or any part thereof should be subject to the approval of the Public Service Commission, and that the comptroller should make such payment or payments upon vouchers accompanied by a requisition of the construction company and the Interborough Company. An application was made by both companies to the then Transit Construction Commissioner, who had succeeded to the powers of the Public Service Commission of the First District, for a request for the payment of $1,750,000 for the purpose of installing a multiple unit car door control device upon cars of the subway express service which installation bad been approved by the Transit Construction Commissioner. The Commissioner subsequently approved the payment to the petitioner of the amount for the purpose of installing the multiple unit car door control device and ordered that the equipment should be provided as equipment under contract No. 1. A voucher for the amount approved of by the Transit Commissioner was transmitted to the comptroller of the city by the petitioner, duly certified and approved, and payment demanded. The comptroller refused to pay the award in spite of the certificate of the auditor of rapid transit costs of the office of the Transit Construction Commissioner to the effect that the amount of the voucher was to be employed for one of the uses specified in the agreement providing for the award. The comptroller contended that the petitioner was not entitled to the award since no claim had been made for payment during the period of nearly nine years from the execution of the agreement and because the first agreement had been merged in a subsequent contract, known as contract No. 3.</p> <p>"Held, that the delay in time in making the claim after the award had been concluded cannot be successfully urged in defeating the relator’s claim, since the defendant city knew of and participated in the proceedings in which reference was made to the award and no one questioned the existence of the arbitration award nor was there any suggestion that it was not available for the purpose proposed and since there was no claim that any Statute of Limitations barred the recovery;</p> <p>That there was nothing in contract No. 3 which would indicate that there had been a waiver of any of the rights or obligations of either of the parties arising under the contract here in question;</p> <p>That the contention of the comptroller that the agreement of December 30, 1911, is not an unqualified admission of indebtedness on the part of the city of New York and if the contractor believed that a liability existed judgment could have been procured, cannot defeat the right of petitioner to a peremptory mandamus, for an undisputed settlement of a controversy by agreement of the parties is entitled to the same force and effect as though a judgment had been entered in an action brought upon the claim; That a car control device attached to a car becomes a part of the rolling stock and falls within the definition of the word “ equipment,” defined in the contract “ to mean all equipment used or intended for use on the railroad, including all motors, cars, whether used for passengers, freight, express or any other purposes, and all other rolling stock;”</p> <p>That in the absence of any fraud or collusion or palpable error the determination of the Transit Construction Commissioner is final and conclusive upon the comptroller;</p> <p>That the duty of the comptroller to issue the warrants in question is purely ministerial and under the statutes he cannot exercise any discretion as to whether he will issue the warrant or not. Nor can he exercise a power of review over the acts of the Public Service Commission or the board of estimate and apportionment, and, therefore, the peremptory writ should have been granted.</p>

<p>Colleges — jurisdiction of Board of Regents under Laws of 1920, chapter 746, to remove trustees of corporation not originally created by Regents but subsequently brought under their jurisdiction where said corporation has no property and has been inoperative for more than two years — statute not given retroactive effect by Regents—-no conflict of jurisdiction between Regents and Supreme Court — not necessary that Regents have interest in proceeding since statute permits action by them of their own motion.</p> <p>The Regents of the University of the State of New York had jurisdiction, under chapter 745 of the Laws of 1920, which amended subdivision 4 of section 68 of the Education Law and provides that “ The Regents may remove any trustee of a corporation created by them for misconduct, incapacity, neglect of duty, or where it appeared to the satisfaction of the Regents that the corporation has failed or refuses to carry into effect its educational purposes,” to remove the trustees of the New York College and Hospital for Women, where it appears that, although said college was not originally created by the Regents, but by special act of the Legislature (Laws of 1863, chap. 123), it must be considered under subsequent acts of the Legislature as having all the advantages enjoyed by an educational institution organized by the Regents, and that the Regents in 1895 granted to said college a standard charter under which it has since exercised all its corporate functions and by reason of which it should thereafter be considered a corporation created by the Regents; and where it further appears that said college was a financial failure, had no property, and had been inactive for more than two years prior to the commencement of the proceeding by the Regents.</p> <p>Chapter 745 of the Laws of 1920 was not given a retroactive effect by the Regents, since the act went into effect in May, 1920, and the decision of the Regents was based upon the failure to maintain the institution after said date.</p> <p>There is no conflict of jurisdiction between the Board of Regents and the Supreme Court.</p> <p>It is not necessary to the validity of such a proceeding by the Regents that they should have some interest therein which gives them standing in court, for in such a matter they may take action of their own motion, and however the information is brought to their attention.</p>

Appeal by the defendant, Elias Heller, from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, entered in the office of the clerk of the said court on the 7th day of January, 1921, convicting defendant of a violation of section 2040 of the Penal Law.

Appeal by the defendants, St. Regis Paper Company and another, from an award of the State Industrial Board, entered in the office of said Board on the 25th day of March, 1921.

<p>Trial — action to recover for personal injury — physical examination of plaintiff — order may provide that examining physician take sample of blood for blood test — Code of Civil Procedure, § 873, applied.</p> <p>A judge or court has the power and jurisdiction under section 873 of the Code of Civil Procedure to provide, in an order for the physical examination of the plaintiff in an action to recover damages for personal injuries, that the examining physician may take a sample of the plaintiff’s blood for the purpose of examination and analysis, where a blood test is necessary to determine accurately the plaintiff’s condition.</p> <p>The fact that infection may be caused by the needle used in making the puncture required to draw blood sufficient for the test does not deprive the court of its power, for the statute gives to the court or judge granting the order full power to direct how the examination shall be made and, upon request of the plaintiff, may throw around the examination all known safeguards, and may require, if the plaintiff so desires, that the sample of blood be drawn by the plaintiff’s own physician.</p>

<p>Appeal by the defendants, Eugene B. Millard and another, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 14th day of November, 1921, denying defendants’ motion to change the place of trial from the county of Oneida to the county of Lewis for the convenience of witnesses.</p>

Appeal by the defendants, George H. Shickler and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 3d day of June, 1921, denying defendants’ motion to vacate and set aside the judgment by confession in favor of the plaintiff. The judgment was entered upon a statement verified by one of the plaintiff’s attorneys and pursuant to a power of attorney contained in an indemnity bond.

Appeal by the defendant, Edmund L. Day, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 10th day of December, 1920, upon the decision of the court rendered after a trial at the Clinton Trial Term without a jury.

Appeal by the plaintiff, W. Scott Root, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Otsego on the 5th day of January, 1920, upon the decision of the court, rendered after a trial without a jury at the Otsego Trial and Special Term, in a suit to establish an easement and for a permanent injunction restraining the defendant from interfering therewith.

<p>Appeal by the defendant, Leigh J. Fuller, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 31st day of October, 1921, denying defendant’s motion to vacate or modify an injunction issued ex parte.</p>

<p>Corporations — foreign corporations — service of summons on director temporarily within State set aside where cause of action did not arisé within State, defendant was not doing business within State and had no property here — when defendant not doing business within State.</p> <p>In an action against a foreign corporation, the service of a summons on a director, not an officer, while temporarily within the State, will be set aside where it appears that the cause of action did not arise within the State, and that the defendant was not doing business within the State, and had no property here.</p> <p>A foreign corporation is not doing business within this State within the jurisdictional sense, where it leases no office, employs no salesmen and has no resident manager or representative in this State, though, through the courtesy of another corporation, it is allowed to have its name on the office door of such other corporation and to have a listing in the telephone book at that address, and though a clerk of such other corporation receives telephone messages for the defendant’s agent who calls at the office occasionally.</p>

Appeal by the defendant, Firth & Foster Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of September, 1921, denying defendant’s motion to set aside the service of the summons and complaint herein.

<p>Appeal by Catherine Dodge Rogers, an infant, etc., from that portion of a decree of the Surrogate’s Court of the county of Orange, entered in said surrogate’s office on the 7th day of February, 1921, which .excludes said infant from participation in the estate of Lillian Stokes Gillespie, deceased.</p>

<p>Crimes — manslaughter in first degree — indictment under Penal Law, § 1050 — wood alcohol purchased in Kings county for sale as beverage and adulterated in New York county — death in Massachusetts of one who subsequently purchased and drank some of alcohol — County Court of Kings county had jurisdiction under Code of Criminal Procedure, § 134 — nuisance within meaning of Penal Law, § 1530 — construction and purpose of Code of Criminal Procedure, § 134.</p> <p>The County Court of Kings county had jurisdiction under section 134 of the Code of Criminal Procedure of an indictment under section 1050 of the Penal Law, for the crime of manslaughter in the first degree alleged to have been committed by the defendant while engaged in committing a misdemeanor, a public nuisance, under section 1530 of the Penal Law, where it appears that the defendant purchased, in the county of Kings, a large quantity of wood alcohol, a deadly poison; that he made the purchase for the express purpose, and with the intention of selling it to the public as a beverage; that he made the purchase personally from a person who had stolen the alcohol and attended to all the details of delivery; that he had full and personal knowledge of the dangerous' character of the alcohol; that he took the alcohol to his store in New York county, there adulterated it and sold and delivered a part thereof to a customer in Connecticut, and that a part thereof was subsequently purchased and drunk by the deceased in the State of Massachusetts.</p> <p>When the defendant purchased and received in the county of Kings the alcohol in question he was then engaged in committing or attempting to commit a misdemeanor, a public nuisance, wdthin the meaning of section 1530 of the Penal Law, for his wrongful act was a nuisance when he purchased the liquor, for the purpose of selling it as a beverage, because his purchase was an important act or step in a crime of a continuous nature.</p> <p>Preparation is always an essential part of a crime, especially where the offense is completed, even though the final stage of the crime is consummated in a different place from where the preparation was made.</p> <p>To give to the County Court of Kings county jurisdiction of the crime it was not essential, under section 134 of the Code of Criminal Procedure, that the effect of the crime must have occurred in that county.</p> <p>Section 134 of the Code of Criminal Procedure is remedial in its character and its object was to extend the lines of jurisdiction beyond the limits prescribed by the common law, and thus prevent a miscarriage of justice.</p>

Appeal by the plaintiff, Dennis Ryan, from a judgment of the County Court of the county of Clinton in favor of the defendant, entered in the office of the clerk of Clinton county on the 6th day of June, 1921, upon the verdict of a jury of no cause of action,

Appeal by the defendant, Charles F. Kivlin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 9th day of March, 1921, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 21st day of March, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes,

Appeal by the defendants, James Butler, Inc., and another, from an award of the State Industrial Commission, entered in the office of said Commission on the 29th day of December, 1920, for the proportionate loss of the use of the left hand.

Appeal by the defendants, Rock Plaster Corporation and another, from an award of the State Industrial Board, entered in the office of said Board on the 19th day of May, 1921.

Appeal by the defendant, Charles Dullea, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of St. Lawrence on the 24th day of January, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th 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 plaintiffs, William N. Cary and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 15th day of December, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiffs’ case.

Appeal by the plaintiff, Clara E. Friederang, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 16th day of June, 1921, upon the decision of the court rendered after a trial at the Queens Special Term on dismissal of her complaint for specific performance of an option to purchase, contained in a lease of residence property, situate in Richmond Hill, fourth ward of the borough of Queens.

<p>Appeal by the plaintiff, Frank A. Wagar, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bensselaer on the 15th day of April, 1921, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case, and also from an order, entered in said clerk’s office on the 13th day of May, 1921, denying plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, John W. Flanagan, from a judgment of the County Court of Queens county, entered in the office of the clerk of the county of Queens on the 16th day of June, 1919, convicting him of the crime of perjury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion to set aside the verdict and in arrest of judgment.

Appeal by the defendant, Adirondack Power and Light Corporation, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 7th day of July, 1921, upon the verdict of a jury for $25,000, which was reduced by order of the court to $15,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion to set aside the verdict and for a.new trial made upon the minutes.

Appeal by the defendant, Walter J. Hickey, from a judgment of the County Court of the county of Rensselaer, rendered on the 27th day of January, 1921, convicting him of the crimes of burglary in the first degree and grand larceny in the first degree, also from an order denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes, and also from an order denying his motion in arrest of judgment.

<p>Appeal by the defendants, E. W. Bliss Company and another, from an award of the State Industrial Board, entered in the office of said Board on April 16, 1921.</p>

<p>Appeal by the defendant, Edward C. Klapp, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 12th day of September, 1921, upon the report of a referee appointed to take and state an account pursuant to an interlocutory judgment, also from said interlocutory judgment entered in said clerk’s office on the 31st day of August, 1921, on default, and also from an order entered in said clerk’s office on the 9th day of August, 1921, granting plaintiff’s motion for judgment on the pleadings.</p> <p>On October 28, 1920, the parties entered into a contract for the sale by the plaintiff to the defendant of certain real estate. The defendant agreed to pay $5,000 at the time of the execution of said agreement and $35,500 on or before March 1,1921. On the latter date the deed was to be delivered and the defendant was to secure the balance of the purchase price, which was $100,000, by executing a purchase-money mortgage for that amount on the said premises with an accompanying bond on terms specified in said agreement. Possession of the premises was to be given on said March 1, 1921, but the defendant was to be at liberty to enter the premises at any time for the purpose of making reasonable repairs. After other provisions not here material the contract concludes as follows: “ In case either party fail to perform this agreement the party so failing shall and will pay to the other party the sum of Five thousand ($5,000.00) Dollars which said sum is hereby fixed as liquidated damages for such failure and said sum shall in no event be considered a penalty.” On March 3, 1921, the parties made a supplemental contract as follows: “ The above contract is extended on the following terms,— Payment of $15000.00 on or before April 1st, 1921. Second party collects rents, pays water taxes and premiums on expiring insurance, and interest at six per cent on unpaid balance of purchase price. Will make final payment and take title on or before July 1st, 1921.”</p> <p>The defendant paid to the plaintiff the initial payment of $5,000 at the time of the execution of the original contract. He defaulted in the payment of $15,000 which by the terms of the supplemental contract was to be made April 1, 1921. In May, 1921, this action was commenced. The complaint, after alleging said two contracts, further alleges that the defendant entered into possession of the property March 1, 1921, and since that time has continued in its possession, collecting rents and income therefrom; that he has failed to pay water rents and the said sum of $15,000 on account of the purchase price and has otherwise failed in the performance of the conditions of his said agreements. The answer denies that the defendant entered into possession. It also puts in' issue the failure of the defendant to perform the conditions of his contracts in all respects except as to the payment of the $15,000.</p> <p>The answer also contains an affirmative defense in which it is alleged that the plaintiff has an adequate remedy at law, and after setting forth the provision in the contract in respect to liquidated damages above quoted, it is further alleged that the said clause was inserted in the agreement “ for the sole purpose of providing relief for the parties to such agreement in the event of a breach by either of them and that an action for the liquidated damages stipulated in said agreement is the sole and exclusive remedy of either party thereto; that at the time of the execution of such agreement this defendant paid to the plaintiff the sum of five thousand ($5,000) Dollars; ” that under and pursuant to the terms of the agreement the defendant paid the said sum of $5,000 in full satisfaction of any damages sustained by her and that she “ accepted said amount in full settlement; ” that such provision in the contract was inserted “ for the sole purpose of giving to either party an option to perform such contract or pay the damages agreed upon and that in such respect said contract was an optional contract, and that by reason of such provision and because of the payment of said sum of five thousand ($5,000) Dollars by the defendant to the plaintiff and because of the receipt and retention of said sum by plaintiff in full of her alleged damages this plaintiff is prohibited from instituting, prosecuting or maintaining this action.”</p> <p>The plaintiff moved for judgment on- the pleadings, which motion was granted, and the said judgment requires the defendant to execute his contracts in all respects as therein specified.</p>

Appeal by the defendant, Aluminum Company of America, from an award and decision of the State Industrial Commission, entered in the office of said Commission on the 14th day of December, 1920.

Appeal by the plaintiffs, Marjorie F. Warner and others, as administrators, etc., from certain portions of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Suffolk on the 29th day of March, 1921, upon the decision of the court rendered after a trial at the Suffolk Special Term, in an action to impress a trust upon certain lands and premises, title to which stood in the name of John B. Warner, the deceased father of Terry M.…

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 Kings on the 20th day of September, 1921, upon the dismissal of the complaint on a motion for judgment on the pleadings, and also from the order, entered in said clerk’s office on the 9th day of September, 1921, granting defendant’s motion for judgment on the pleadings, and also from an order, entered in said…

Appeal by the defendant, William De Goode, from a judgment of the County Court of the county of Kings in favor of the plaintiff, entered in the office of the clerk of said county on the 26th day of October, 1920, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Elizabeth Day, from a judgment of the Supreme Court in favor of the defendant Brooklyn City Railroad Company, entered in the office of the clerk of the county of Kings on the 26th day of February, 1921, upon the verdict of a jury, and also from an order, entered in said clerk’s office oh the 1st day of March, 1921, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, Louis P. Goldberg, from a judgment of the County Court of Bangs county in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of October, 1920, upon the dismissal of the complaint by direction of the court at the opening of the case.

<p>Gas and electricity — action to restrain gas company from making service charge — injunction pendente lite properly denied where Public Service Commission had authorized particular charge — decision of Public Service Commission cannot be attacked collaterally.</p> <p>In an action to restrain the defendant, a gas company, from making a “ service charge ” on the ground that it constituted a violation of section 66 of the Transportation Corporations Law prohibiting a rental charge for meters, either directly or indirectly, an injunction pendente lite was properly denied, where it appears that the Public Service Commission had authorized the charge after deciding that it did not constitute a rental in violation of the statute.</p> <p>The decision of the Public Service Commission cannot be attacked collaterally unless its order was without the scope of its jurisdiction, and it cannot be said as a matter of law, without evidence of the identity of the two charges, that the service charge is equivalent to a meter rental.</p> <p>Putnam and Kelly, JJ., dissent.</p>

<p>Appeal by the defendant, National Civil Service Endowment Association, from an order and determination of the Appellate Term of the Supreme Court, Second Department, entered in the office of the clerk of said court on the 1st day of July, 1921, reversing a judgment of the Municipal Court of the City of New York, Borough of Brooklyn, First District, in favor of the defendant.</p>

Appeal by the defendant, Endicott-Johnson Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 23d day of July, 1921, upon the decision of the court rendered after a trial without a jury at the Broome Trial Term.

Appeal by the plaintiff, Jacob Dold Packing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cler.k of the county of Saratoga on the 13th day of June, 1921, upon the decision of the cour't, rendered after a trial at the Saratoga Trial Term, a-jury having been waived by stipulation of the parties.

<p>Appeal by the plaintiff, William B. MacDonald, from an order of the Supreme Court, made at the Erie SpeciaJ Term and entered in the office of the clerk of the county of Erie on the 3d day of November, 1921, setting aside and vacating a notice and subpoena issued under section 290 of the Civil Practice Act in an action commenced before October 1, 1921.</p>

Appeal by the defendant, United Traction Company, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 7th day of April, 1921, affirming a judgment of the City Court of the city of Troy in favor of the plaintiff, and also from an order entered in said clerk’s office on the same day affirming an order of the City Court of the city of Troy denying defendant’s motion to set…

Appeal by the defendant, L. Gerald King, from a, judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 6th day of May, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of August, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendants, John F. Hylan and others, constituting the board of estimate and apportionment of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on or about the 31st- day of October, 1921, granting a peremptory order of mandamus requiring them to alter and amend the proposed or tentative budget of the city for the year 1922 as prepared by them, and to…

Appeal by the defendant, Federal Casualty Company of Detroit, Michigan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 12th day of May, 1921, upon the verdict of a jury for $840, and also from an order, entered in said clerk’s office on the 11th day of May, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Samuel J. Boardman and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 6th day of May, 1920, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 1st day of June, 1920, denying defendants’ motion for a new trial made upon the minutes.

Certiorari order granted by the Monroe Special Term on the 15th day of October, 1921, directed to William J. Callister and others, members of and composing the board of supervisors of Monroe county, N. Y., commanding them to certify and return to the office of the clerk of the county of Monroe all and singular their proceedings had in disallowing on October 3,1921, the claim of the petitioner for compensation for services as special county judge and acting surrogate of…

Appeal by the defendants, Sophie Friberg and another, from a final order of the County Court of the county of Queens, made in summary proceedings to dispossess, and entered in the office of the clerk of said county on the 24th day of June, 1921, awarding to the landlord possession of the property in question, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion to set aside the verdict and for a new trial made upon the…

Appeal by the defendants, Sophie Friberg and another, from a final order of the County Court of the county of Queens, made in summary proceedings to dispossess, and entered in the office of the clerk of the county of Queens on the 28th day of June, 1921, awarding to the landlord possession of the property in question, and also from an order entered in said clerk’s office on or about the same day denying defendants’ motion to set aside the verdict and for a new trial made…

<p>Cross-appeals from a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of said court on the 21st day of July, 1921.</p> <p>Said decree determined the amount due to Herbert T. Ketcham, attorney and counselor at law, for services rendered to the estate of the decedent, as trial counsel upon the contested probate of the will of Martha M. Brasher, deceased. The surrogate allowed the sum of $60,000. The executors appeal from the decree, claiming that the allowance is excessive, and the petitioner appeals, alleging that the sum is insufficient.</p>

Appeal by the defendant, City of Syracuse, 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 11th day of November, 1920, upon the report of a referee appointed on stipulation of the parties to hear and determine the issues.

<p>Municipal corporations — action to recover for injuries received by being thrown from bicycle ridden into hole in pavement — city had both constructive and actual notice of existence of depression — question of fact as to depth of depression — question ,as to negligence of city and contributory negligence of plaintiff were properly submitted to jury.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff by being thrown from his bicycle when he rode into a hole in the pavement in a public street in the defendant city, it appeared that the depression had existed for several months; that the principal question of fact at issue was the depth of the depression in the pavement; that several of the plaintiff’s witnesses, who lived in the vicinity of the place and had seen the hole in the pavement frequently, estimated the depth of the depression at from six to eight inches, while on the other hand the city engineer of the defendant testified that he stretched a steel tape over the depression and measured the depression from that tape, and that from such measurement the greatest depth of the depression was three inches.</p> <p>Held, that by reason of the fact that the depression had existed for a long time, the defendant was chargeable with constructive notice of its existence, and furthermore, the city manager of defendant had actual notice of the existence of the depression at least ten days prior to the accident.</p> <p>Inasmuch as it was conceded that there was some sagging in the steel tape used by the city engineer, the measurements made by him could not have been absolutely correct and, therefore, the estimates by the witnesses for the plaintiff as to the size and depth of the depression based upon their observations raised a question of fact which was properly submitted to the jury.</p> <p>The evidence clearly presented a question of fact as to whether or not the city was negligent in permitting a hole of the size and depth of the one in question to exist for many months in one of the principal streets without attempting to repair it, and the court was justified in submitting to the jury the question of defendant’s negligence and plaintiff’s freedom from negligence.</p>

Appeal by the relator, The Schenectady Odd Fellows Temple Association, 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 or about the 5th day of August, 1921, upon the decision of the court rendered after a trial at the Schenectady Special Term, dismissing a writ of certiorari.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Essex on the 9th day of March, 1921, upon the decision of the court rendered after a trial at the Essex Trial Term without a jury.

Appeal by the plaintiff, William J. Beauley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1921, granting defendant’s motion for counsel fee, and by defendant, Harriet W. Beauley, from so much/of said order as fixes the amount of counsel fees of the defendant herein at $2,000 less the previous payment of $450.

Appeal by the plaintiff, William J. Beauley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1921, denying plaintiff’s motion for leave to amend the complaint herein.

Appeal by Walter G. Herbert, as administrator, 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 June, 1921, denying a motion to vacate and set aside an order directing the payment of certain moneys by the chamberlain of the city of New York.

<p>Appeal by the plaintiff, Isidor Goldberg, 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 20th day of January, 1921, reversing the final order of the Municipal Court of the City of New York, Borough of Manhattan, Second District, in favor of the plaintiff, and dismissing the petition in summary proceedings to dispossess.</p>

Appeal by the defendant, Cornelius F. Quinn, from a judgment of the County Court of Bronx county in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on or about the 20th day of May, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the defendant, The People of the State of New York, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Hamilton on the 13th day of July, 1921, upon the decision of the court rendered after a trial by the court without a jury in an action for partition.

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 Westchester on the 18th day of April, 1921, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the plaintiffs, Joel Herbert Seaverns 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 21st day of July, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of July, 1920, denying plaintiffs’ motion for a new trial made upon the minutes.

<p>Trial — use of part of single counterclaim in Municipal Court action bar to use of balance of counterclaim subsequently in Supreme Court action — Appellate Division may not grant final judgment where plaintiffs failed to move for direction of verdict.</p> <p>Where the defendant in an action in the Municipal Court of the City of New York to recover the balance due on the second of four contracts for the sale of goods used part of a single counterclaim based on a parol agreement affecting all four contracts where, although the amount was greater than the jurisdiction to award judgment, said defendant might have interposed its entire counterclaim and have established the same, it is barred from interposing the balance of its counterclaim subsequently in an action in the Supreme Court on the first of the four contracts, and the plaintiffs’ motion at the close of the evidence for the dismissal of the counterclaim should have been granted.</p> <p>The Appellate Division may not grant final judgment for the plaintiffs, under Code of Civil Procedure, section 1317, as they made no motion at the trial for the direction of a verdict in their favor.</p>

<p>Appeal by the plaintiffs, Simon Fassy and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of November, 1920, upon the report of a referee appointed to take and state the account raised by defendant’s counterclaim, and also from an order entered in said clerk’s office on the 11th day of November, 1920, confirming the report of the referee herein.</p>

<p>Vendor and purchaser—’Specific performance — contract by plaintiff, individually, and as executrix to convey — tender of conveyance individually — devise of property to plaintiff for life with power of appointment by will of persons to receive proceeds of sale by executors — proceeds of sale of remainder on failure of designation to go to devisee’s children or in absence of children to brother of devisee — title by plaintiff, individually, not marketable — purchaser not required to take title depending on doubtful question of law.</p> <p>The plaintiff could not convey a good and marketable title, individually, to the defendant and could not compel him to accept the title under a contract of purchase executed by her individually and as life tenant and executrix, where it appeared that she acquired what interest she had in the property under a will devising the property to her “ for and during the full period and term of her natural Hfe; and at her death, I hereby give, grant and devise to my executors * * * full power and authority to sell said premises, * * * and to pay over the proceeds of such sale to such person or persons as may be designated in any last Will and Testament duly made and executed by my said daughter,” and providing further that in case the daughter died intestate, then the proceeds should be divided among her children and, in case she left no children her surviving, that the proceeds should go to a son of the testator.</p> <p>Where all the parties having a possible interest are not before the court, a purchaser will not be required to take title depending upon a doubtful question of law, since the decision thereof would not be binding upon those who are not parties to the action and might thereafter assert a claim of title.</p> <p>Accordingly, the defendant will not be compelled to accept title from the plaintiff, .individually, as it is doubtful whether or not her title under the will, which gives her the power of appointment by will of the disposition of the proceeds of the sale of the real property by the executors, is to be governed by the rule that where a life tenant is given a general or beneficial power unaffected by any trust to dispose of the remainder by appointment, that becomes an absolute power of disposition under the provisions of the statutes relating to powers, and changes the life estate into absolute fee, and since it is not shown that all the persons who aro or might be interested in the property are before the court.</p>

<p>Appeal by the defendant, Grand Concourse Service Co., Inc., in each action, from an order and determination of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of Bronx on the 28th day of April, 1921, affirming a judgment of the Municipal Court- of the City of New York, borough of The Bronx, Second District, in favor of the plaintiff in each of the actions.</p>

Appeal by the plaintiff, Russian Symphony Society, Inc., from an order and determination of the Appellate Term of the Supreme Court, First Department, in favor of the defendant, entered in the office of the clerk of the county of New York on the 15th day of November, 1920, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff.

<p>Taxation — transfer tax — value of property to be determined ordinarily at date of death — interest in partnership where surviving partner has three years to account—• value of testator’s interest ascertainable only after liquidation — amount for which surviving partner accountable to be taken as basis — value of securities deposited by testator as collateral for obligation of third party determinable at maturity of obligation.</p> <p>Transfer tax accrues immediately upon the death of a testator or intestate and, therefore, the value of the property transferred by will or by operation of law on the death intestate of the owner is to be determined in all eases as of the date of the death of the owner, for the purpose of fixing the tax on the transfer thereof, and ordinarily it is presently so determinable; but in some instances neither can the property so transferred nor its value be determined immediately after the death of the testator or intestate.</p> <p>Accordingly, where, under the terms of a partnership agreement between the testator and his partner, the surviving partner was given three years within which to liquidate the business, the value of the interest of the testator in the firm business, which passed under his will, could for the purpose of fixing the transfer tax, be determined only after such liquidation by the surviving partner.</p> <p>It seems, that in such case the amount for which the surviving partner accounts or is held to be accountable to the estate of the deceased partner must be taken as a basis, and, possibly where practicable, may be increased or diminished according to whether the partnership assets depreciated or appreciated after the death of the testator, in order to determine the value of his interest at the time of his death; but when that is not practicable, the amount so accounted for should be deemed such value. The value of the interest of the testator in securities pledged as collateral for the obligation of a third party, which did not mature until after testator’s death, could only be determined by awaiting the maturity of the obligations of said third person, when only it could be known whether said obligations would be paid and whether and to what extent resort might be had to the collateral, the securities of the testator, for the payment thereof.</p>

Appeal by the plaintiff, Ritchey Lithographing 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 22d day of September, 1921, granting defendant’s motion to vacate a judgment entered herein against the defendant by default.

Appeal by the defendant, Standard Oil Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1921, granting plaintiff’s motion for judgment on the pleadings, consisting of a complaint and answer thereto.

Appeal by the plaintiff, General Motors 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 4th day of October, 1921, granting defendant’s motion to vacate and set aside a warrant of attachment, an attempted levy by the plaintiff under a warrant of attachment and an order for the service of the summons herein upon said defendant by publication.

Appeal by the defendants, “ George” Prescetti and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of July, 1921, denying defendants’ motion to vacate and set aside a warrant of attachment and an order for the service of the summons by publication granted herein.

Appeal by Bankers’ Trust Company of the City of New York, as executor, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 5th day of March, 1921, affirming a prior order fixing the transfer tax on the estate of Lena McMullen, deceased.

Appeal by the defendants, Adams, Evans & Co., Inc., and others, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 14th day of September, 1921, granting plaintiff’s motion for the appointment of a receiver of the assets of Adams, Evans & Co., Inc., and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a change of venue from the county of…

Appeal by Fannie N. Brown and another from a decree of the Surrogate’s Court of the county of Clinton, entered in said Surrogate’s Court on the 10th day of December, 1920, admitting to probate the last will and testament of Eliza A. Carter, deceased.

Appeal by William H. Corbusier from a decree of the Surrogate’s Court of the county of Chemung, entered in said Surrogate’s Court on the 20th day of April, 1921, admitting to probate the last will and testament of Henry B. Jones, deceased, and also from an order entered in said Surrogate’s .Court on the 26th day of April, 1921, directing that letters testamentary issue to Johnson Beers, the executor named in the will.

Appeal by the plaintiff, Harriet E. Ostrander, 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 14th day of June, 1921, upon the verdict of a jury of no cause of action, and also from an order, entered in said clerk’s office on the 13th day of June, 1921, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, National 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 31st day of May, 1921, granting plaintiffs’ motion for judgment on the pleadings, consisting of an amended complaint and defendant’s demurrers thereto, and overruling defendant’s demurrers with leave to serve an answer to the amended complaint.

Appeal by the defendant, Ellis Jackson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1921, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 31st day of January, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Sales — action for goods sold and delivered — evidence — erroneous admission of offer of compromise.</p> <p>In an action for goods sold and delivered in which there was a dispute as to the price agreed to be paid by the defendant, it was reversible error to admit testimony over the defendant’s objection tending to show an offer of settlement by the defendant by paying a price for the goods higher than that which he maintained upon the trial was the true contract price, where said testimony contained no admission of fact by the defendant, and the trial judge, although he stated that he received the testimony upon the theory that it was for the jury to determine whether the defendant had offered to compromise or simply sought to get a reduction in price, failed to instruct the jury in reference to it.</p>

Appeal by the plaintiff, N. A. Berwin & Co., Inc., from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 3d day of May, 1921, vacating the verdict of a jury and dismissing the complaint, and also from an order entered in said clerk’s office on the 28th day of April, 1921, setting aside the verdict of a jury and dismissing the complaint.

<p>Appeal by the plaintiffs, Harry Breslow and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of January, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on or about the same day denying plaintiffs’ motion to set aside the verdict and for a new trial made upon the minutes.</p>

<p>Sales — action for goods sold and delivered — defense that goods were defective — evidence — question of fact as to whether buyer notified seller of defects within reasonable time — evidence of difference in market value of goods delivered and contracted for admissible — evidence not within pleadings admissible if not objected to — right of buyer under Personal Property Law to counterclaim for damages in case goods delivered are defective.</p> <p>Upon the trial of an action to recover a balance due for goods sold and delivered where the defense was that the plaintiff had failed to deliver the merchandise agreed to be delivered, it appeared that the goods were to be delivered during a period of four months, commencing in January, 1920; that during such period defendant became seriously ill and that the defendant’s brother conferred with a certain representative of the plaintiff in reference to the shipment of the said goods. The defendant’s brother testified, in substance, that the plaintiff’s representative said that the defendant might inspect the goods when he returned from the hospital and that the plaintiff would make good anything wrong and would allow exchanges in case of any imperfections. This testimony, however, was denied in respect to allowing exchanges. Deliveries were made at various times and the last lot of goods was delivered on May 3, 1920, and about three weeks later the defendant, having left the hospital, examined the goods and claimed to have found some of them imperfect. On May 28, 1920, the defendant personally called the attention of one of plaintiff’s representatives to the imperfections and on June 4,1920, the defendant advised the plaintiff by letter that the goods were imperfect and asked plaintiff’s representative to call and examine them. Plaintiff replied that it would not have a representative call because the goods had been in defendant’s possession for five months or more. It further demanded a payment and the defendant then paid $500 on account. The answer contained no allegation of an extension of time for inspection for any purpose and no allegation that notice of defect was given within a reasonable time, but it was not demurred to nor was any objection made that any of the proof was not within the pleadings. However, when evidence was offered as to the difference in value of the goods contracted for and the goods delivered, under an objection that the evidence was incompetent, the court excluded the evidence, stating that the sickness of the defendant was no excuse for failure to inspect the goods.</p> <p>Held, that a question of fact for the jury was presented as to whether the defendant notified the plaintiff of the defects within a reasonable time, and that evidence of the difference in the market value of the goods as delivered and of the goods contracted for should have been received. Evidence not within the pleadings becomes evidence in the case if admitted without objection.</p> <p>Under the Personal Property Law a buyer has the right to counterclaim for his damages arising from defects in the goods delivered, whether or not he has accepted the goods, but he must give notice of the defects to the seller within a reasonable time and so allege in his answer.</p>

<p>Wills — probate — devise by aged testator, leaving widow, of savings bank deposits to niece pursuant to previously expressed intention— lack of testamentary capacity not shown.</p> <p>A will should not be refused probate for lack of testamentary capacity where it appears that the testator died at the age of seventy-eight years, .fifteen months after the execution of the will, leaving a widow seventy-six years of age but no children; that the testator at the time of his death had savings bank deposits to the amount of $6,000 and his widow had deposits of twice that amount; that for five years before his death the testator left his bank books with his niece and on several occasions during said period expressed an intention to leave his savings bank deposits to her which he did; that at the time of the execution of the will he stated that his wife had more than enough to support herself and he wanted his money to go to the niece; that the sole testimony for the widow, who is contesting the will, was furnished by the family physician who testified that two or three days before the execution of the will the testator had delusions but there was no evidence that they were of such a nature as to affect his testamentary capacity, and that on the part of the proponent there were ten witnesses, including a doctor who had attended the testator and a priest who had visited him, all of whom testified that his acts and words impressed them as rational.</p>

Appeal by the defendant, Northern and Western Finance and Trading Corporation, 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 11th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of March, 1921, denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Contracts — agreement between parties to organize new corporation and by plaintiffs to transfer all of stock of old corporation to new — provision in agreement that if plaintiffs could not acquire minority interest and minority stockholders would not take stock in new corporation, defendant would advance money to purchase minority stock for new corporation — minority stock eventually purchased by plaintiffs and transferred to new eorpora- . tion under alleged oral agreement by defendant to reimburse plaintiffs — defendant not liable.</p> <p>The plaintiffs and the defendant and a third party entered into an agreement to organize a new corporation whereby the plaintiffs agreed to transfer to the new corporation all of the stock of an old corporation of which they were the principal stockholders, in consideration of the issuance to them of all of the stock of the new corporation and its obligation for $40,000. It was contemplated at the time of the agreement that the plaintiffs would have possession of certain minority stock of the old corporation, but it was provided that in case they could not possess themselves of it, the minority stockholders would have the option of coming into the new corporation on the ratio of five shares of stock in the new corporation for one of the old, and that in case they refused to take advantage of that option, the defendant would advance the money necessary to buy the minority stock and would be relieved to the extent of the amount so paid on his obligation under the agreement to transfer to the new corporation certain property and at the same time the $40,000 obligation of the new corporation to the plaintiffs would be reduced by a like amount. The new corporation was organized and pursuant to the terms of the agreement all of the stock was issued to the plaintiffs and they returned to the treasury of the corporation a certain portion thereof agreed upon and assigned an agreed portion to the defendant and to the said third party. Thereafter, the plaintiffs purchased the minority stock and delivered it to the new corporation under an agreement, as they alleged, with the defendant that he would reimburse them for the amount so paid. Held, that the contract by the defendant to purchase the minority stock was simply a contract in behalf of the new corporation under which he, as its agent, was to advance the money for the purchase of the stock for which he would have the liability of the corporation.</p> <p>Furthermore, if the purchase of the stock by the plaintiffs was for the defendant, as they alleged, on his agreement to reimburse them, no cause of action existed against the defendant, since the plaintiffs purchased and delivered the stock to the new corporation.</p> <p>Since the plaintiffs were under an obligation to deliver all of the capital stock of the old corporation in consideration of the capital stock and the $40,000 obligation of the new corporation, and since the plaintiffs have been paid in full on the $40,000 obligation by the transfer of stock in the new corporation to them, the minority stock which they purchased and delivered to the new corporation has, by that transaction, been fully paid for, and the payment to the plaintiffs by the corporation for the minority stock discharged any liability which the defendant may have incurred in ' favor of the plaintiffs on the purchase of said stock.</p>

<p>Sales — action to recover purchase price of goods shipped on bill of lading consigned to seller or order not maintainable under Personal Property Law, § 144, subd. 1 — title remained in seller under Personal Property Law, § 101, subd. 2 — seller’s remedy is action for damages for refusal of buyer to accept — measure of damages — point of destination not specified in contract — tender of bill of lading of goods shipped to buyer’s place of business not good in absence of refusal of buyer to designate point of shipment — agent of defendant had power to make contract — rejection on ground that agent had no authority to make contract not waiver of objection that goods were shipped without instructions.</p> <p>A seller of goods cannot maintain an action under section 144, subdivision 1, of the Personal Property Law, to recover the purchase price of goods where it appears that the goods, which were readily resalable, were shipped on a bill of lading consigned to the seller or order and were rejected by the buyer, since, by virtue of subdivision 2 of section 101 of the Personal Property Law, the title to goods so shipped remains in the seller and does not pass to the buyer.</p> <p>It seems, that the seller’s remedy in such a case is an action to recover damages for failure to accept the goods, in which case the measure of damages would be the difference between the contract price and the market price.</p> <p>As the contract of purchase did not specify the point of destination but clearly contemplated that the buyer was to designate the route and the carriers, with the exception of the initial carrier, the shipment of the goods to New York city, the buyer’s general place of business, without instructions from the buyer and the tender of the bill of lading on said shipment, wa’, not a good tender of the goods.</p> <p>The evidence fully sustains the finding of the jury that the agent of‘the defendent, the buyer, had authority to make the contract and the goods were not properly rejected on that ground.</p> <p>The fact that the goods were rejected on the ground that the agent had no authority to make the contract did not waive the objection that ■ the goods were shipped to New York without instructions, as the defendant had no knowledge at the time the goods were rejected of the terms of the contract, and a waiver can only be found from an act done with intention to waive.</p>

<p>Taxation — transfer tax — both maximum and minimum rate should be fixed by surrogate where interest of transferees dependent on contingencies or conditions — Laws of 1911, chapter 800, amending Tax Law, § 241, construed and applied — said statute applicable though testator died before statute enacted — executrix had right to deposit securities with Comptroller to secure difference between minimum and maximum tax.</p> <p>Proceedings commenced after the amendment of section 241 of the Tax Law by chapter 800 of the Laws of 1911 became effective, to fix the transfer tax on property transferred in trust for the benefit of the testator’s wife during life and on her death for the benefit of her daughter and then to go to her issue, or in ease of failure of issue to such persons as she might appoint by will, and, on failure of appointment, to the testator’s heirs at law, are governed by said section as amended, though the testator died before the amendment became effective.</p> <p>The original order, therefore, should have fixed both the minimum and the maximum rate applicable to any of the contingencies or successions under the will.</p> <p>Furthermore, the executrix had the right to deposit with the Comptroller securities of the estate approved by him, to secure the payment of the difference between the tax on said remainder at the highest rate and the tax upon said remainder which would be due if the contingencies or conditions had happened at the date of the appraisal of said estate, and cash for the balance of said tax assessed. And this right was not defeated by the fact that the executrix had already paid to the Comptroller the highest rate and said sum had been turned over to the State Treasurer.</p>

<p>Appeal by Emanuel Ritsos 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 defendant’s motion to compel the property clerk of the police department of New York city to return to him forty-six barrels of wine.</p>

Appeal by the Attorney-General of the State 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 or about the 7th day of March, 1921, appointing a receiver of the assets and property of the Knickerbocker Life Insurance Company, and a referee to take proofs, and also from an order entered in said clerk’s office on or about the 28th day of April, 1921, denying the…

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

<p>Sales — action to recover purchase price of goods not accepted — conflicting evidence as to cancellation of contract — verdict in favor of plaintiff against weight of evidence — complaint should have been dismissed — plaintiff cannot recover purchase price and remedy, if any, is action for non-acceptance.</p> <p>In an action to recover the purchase price of a portion of goods not accepted by the defendant, it appeared that the plaintiff held up shipments because of the delay on the part of the defendant in making payments on goods already delivered, and that the evidence was conflicting as to whether or not the contract for the sale of the goods was canceled.</p> <p>Held, that the verdict of the jury in favor of the plaintiff was against the weight of the evidence;</p> <p>That the motion by the defendant made at the close of the plaintiff’s ease to dismiss the complaint and renewed after both sides had rested, should have been granted, for even though the orders were not canceled as claimed by the defendant, still the plaintiff neither alleged nor proved a cause of action for the recovery of the purchase price.</p> <p>The property in the goods had not passed to the defendant, for when the contract was made the goods were not in a deliverable state and the plaintiff did not allege or prove that any specific goods were unconditionally appropriated to the contract, and the price was not payable on a day certain, irrespective of delivery, but by the terms of the contract was payable seventy days after delivery and was contingent on the cost of manufacture.</p> <p>The goods were readily resalable for a reasonable price on the date when the defendant definitely notified the plaintiff that it would refuse to receive the goods and the fact that several months later the goods were not resalable for a reasonable price did not bring the case within subdivision 3 of section 144 of the Personal Property Law and authorize the plaintiff to maintain an action for the purchase price. Plaintiff’s cause of action, if any, was for damages for non-acceptance of the goods.</p>

<p>Trial — opening and closing — right to -open and close is with defendant where affirmative defenses and counterclaims only interposed — verdict — verdict should not be directed till both sides have rested — when plaintiff may be assumed to have rested — contracts — action to recover deposit made on contract for purchase of vessel — purchaser relieved if performance made impossible by act of government — conditional refusal of government to perrhit transfer does not establish impossibility — clause in contract not available where plaintiff misrepresented that it was American corporation.</p> <p>The defendant has the right to open' and close where the cause of action set out in the complaint is not denied in the answer but affirmative defenses and counterclaims only are interposed by the defendant.</p> <p>While the practice is that a verdict may not be directed until all the parties have rested, it may be assumed that the plaintiff had rested where after the defendant had introduced its evidence and rested, the plaintiff moved for a directed verdict.</p> <p>The complaint in an action to recover a deposit made on the purchase price of a vessel sold under a contract which provided that the sum deposited should be repaid if the contract should become impossible of performance by reason of any restraints or acts of the government, does not state a cause of action, where it is alleged that the capital stock of the plaintiff was held by a foreign corporation and that the United States Shipping Board, after an investigation, declined to consent to the transfer of the vessel to the plaintiff “ unless and until the said United States Shipping Board should be satisfied that the said Shapiro, an American citizen, [the alleged owner of the plaintiff], had obtained the controlling interest in said capital stock.”</p> <p>It was incumbent on the plaintiff to allege and prove that its failure to perform its contract was due to one or more of the causes mentioned therein which would relieve it from liability, and that it was beyond its control or power to do anything which would entitle it to purchase the vessel in question.</p> <p>The provisional restraint on the part of the government did not show that it was impossible, for the plaintiff to perform, as it was within its power to remove the cause for the restraint by the principal owner of the plaintiff settling his differences with said foreign corporation and acquiring the stock of the plaintiff.</p> <p>It was not the duty of the defendant to obtain the consent of the United States Shipping Board to the transfer.</p> <p>Furthermore, the misrepresentations of the plaintiff, as to the ownership of its stock being in American citizens and as to the plaintiff being under the control of American citizens before the contract was executed, presented a question for the jury upon the question of fraud in respect of defendant’s counterclaim for damages and of plaintiff’s right to cancel the contract.</p> <p>The plaintiff cannot escape its responsibilities of performing the contract on the plea that it was unable to perform owing to the restraint of the government if it induced the defendant by misrepresentations to enter into the contract, which were made with a full understanding that the government would not give its consent to an alien ownership of the vessel.</p>

<p>Appeal by the defendant, John Farson, 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 January, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, entered in the office of the clerk of said court on the 20th day of April, 1920, in favor of the plaintiff.</p>

<p>Appeal by the plaintiffs, Charles Beadall and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of .New York on the 25th day of July, 1921, as denies plaintiffs’ motion for judgment on the pleadings, as to the first cause of action set out in plaintiffs’ complaint.</p>

Appeal by the plaintiffs, J. C. Turner Lumber Company and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of December, 1921, upon an order granting defendants’ motion for judgment on the pleadings, and also from an order entered in said clerk’s office on the 26th day of September, 1921, granting defendants’ motion for judgment on the pleadings and directing judgment in…

Cross-appeals by the plaintiffs, Edgar S. Appleby and another, and by the defendants, The City of New York and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on or about the 25th day of July, 1917, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Waters and watercourses —• peremptory writ of mandamus allowed compelling commissioner of docks of city of New York to permit petitioners to build bulkhead in Hudson river on line decided by this court to govern petitioners — issue of writ delayed to allow condemnation proceedings to acquire petitioner’s property, if necessary to construct bulkhead on new line not affecting their rights.</p> <p>A peremptory writ of mandamus should be allowed compelling the commissioner of docks of the city of New York to issue a permit to the petitioners to construct a bulkhead in the Hudson river on their premises on the bulkhead line approved by the Secretary of War in 1890, where it appears that the only objection by the commissioner to the alternative plans proposed by the petitioners was that they were not in accordance with a new bulkhead line established in 1916, that this court is to decide in an equity action herewith that the bulkhead line approved by the Secretary of War is the line which governs the petitioners, and that their rights are not affected by the line established in 1916.</p> <p>However, if the commissioner deems it necessary that the bulkhead be built on the line established in 1916, the issuance of the writ will be delayed sufficiently to allow the city to acquire the petitioners’ property by condemnation proceedings.</p>

<p>Insurance — warehouses — owner of goods destroyed in warehouse may sue on policy secured by warehouseman for such owner’s benefit — Code of Civil Procedure, § 449, authorizing trustee of express trust to bring suit is permissive only — principal and agent — trusts — warehouseman insuring property of patron acts as agent and is also trustee of express trust — complaint sufficient — warehouseman could have brought action.</p> <p>The owners of warehouse receipts representing a quantity of whisky, which was destroyed by fire while in a warehouse, are proper plaintiffs and the warehouse corporation is not a necessary party plaintiff in an action against an insurance company to recover the insurance on the destroyed property, in the absence of some clause in the policies to the contrary, where the warehouse corporation had agreed with the holders of the receipts to keep the said whisky insured for the benefit of the owners while it remained in the warehouse and had taken out a policy which provided that the insurance covered not only the property of the warehouse corporation but also the property of others held by it, and the complaint states that the insurance so procured was ratified and adopted by the holders of the warehouse receipts, and it does not appear upon the face of the complaint that any one else has any substantial interest in the policies.</p> <p>It seems, that the provisions of section 449 of the Code of Civil Procedure are permissive, and simply authorize the trustee of an express trust to bring suit without making the beneficiary of the trust a party.</p> <p>It seems, that the general rule is that where a warehouseman takes out insurance for the benefit of third parties whose goods may be from time to time in his warehouse, he acts, in the first instance, as an agent for the owners of such goods, and is also deemed to be a trustee of an express trust.</p> <p>The complaint states facts sufficient to constitute a cause of action.</p> <p>Although the warehouse corporation could properly have brought the action, if the plaintiffs had made such a request, the question whether or not they made the request is not material.</p> <p>Greenbatjm, J., dissents, with opinion.</p>

<p>Sales — title does not pass to buyer on signing contract by virtue of Personal Property Law, § 100, rule 1, where it was not intention of parties — contract governed by Personal Property Law, § 100, rule 6 — delivery necessary to pass title — seller not entitled to recover purchase price but remedy is for failure of buyer to accept delivery or to resell and bring action for loss sustained— common-law right of action for purchase price based upon tender and refusal of buyer to accept changed by Sales of Goods Act — that complaint may state cause of action at common law immaterial.</p> <p>The title did not pass to the buyer immediately on the signing of a contract of sale, by virtue of rule 1 of section 100 of the Personal Property Law, where said contract provided that “ this merchandise is now in transit, * * * and is to be delivered to you if and when received by us,”</p> <p>for there was not an unconditional contract of sale and the contract shows that it was not the intention of the parties that title should pass. Such a contract comes under rule 5 of section 100 of the Personal Property Law and in order for property in the goods to pass to the buyer there must be delivery and acceptance.</p> <p>Therefore, the seller is not entitled under such contract to recover the' purchase price based upon a tender of the goods, and refusal of the buyer to accept them, for the common-law rule has been changed by the Sales of Goods Act and the seller’s remedy is an action for damages by reason of failure of the buyer to accept delivery, or a resale and an action for the loss sustained; but sufficient facts are not alleged in the complaint to sustain either of these causes of action.</p> <p>It is immaterial that the complaint may state a cause of action at common law, for the common-law rule no longer applies.</p>

<p>Executors and administrators — one of two executors not removed for misconduct where it is impossible to determine which is more at fault —• appeal — when entire record brought before appellate court.</p> <p>Where a testator, leaving a large estate, appointed a son and a daughter executors and trustees and the two were in continual disagreement in regard to handling the estate to such an extent that property of the estate was wasted, but an examination of the evidence fails to disclose which one of the executors is the more blameworthy, a decree of the Surrogate’s Court refusing to remove the son as executor and denying his application to resign will be affirmed on appeal, where it also appears that the widow of the testator and three other children joined the daughter in the petition for the son’s removal but that the said daughter is the only one who appealed from the decree of the Surrogate’s Court.</p> <p>If a referee appointed by a Surrogate’s Court to take proof but not to hear and determine makes findings, the findings, so far as adopted, become the findings of the surrogate and an appeal from a decree of the Surrogate’s Court brings up the entire record.</p>

<p>Executors and administrators — accounting — coexecutors are an entity and property in custody of one is deemed held for all and decree should provide for performance by all — taxation ■—taxes which are not lien on decedent’s realty at his death should be paid out of income of estate — Greater New York charter, § 892, fixing taxable status of property assessable on certain date not applicable — expenditure benefiting only part of heirs not chargeable against estate — disbursements for legal services allowed on accounting to extent of value found by surrogate notwithstanding referee held to contrary — mortgages — mortgages of decedent properly paid out of principal of estate.</p> <p>poexecutors constitute an entity and are regarded in law as an individual person, They all have a joint and entire authority over the entire property, and if the property is in the custody of one, he is deemed to hold it, not for himself, but for all. Accordingly, where, pending an application to resign, and proceeding for his removal, one coexecutor allowed the other full control of the estate and they properly made separate accounts of their individual receipts and disbursements of the estate funds, nevertheless, the said executor not having been allowed to resign and not having been removed, the decree on the accounting looking to future administration of the estate should provide for performance by both.</p> <p>Taxes on a decedent’s real estate which were not due and payable at the time of his death and hence had not at that time become a lien on the property, were not a debt of the decedent to be paid out of the principal of his estate, but were properly a charge against the income of the year in which they were payable.</p> <p>The provision of section 892 of the Greater New York charter that “ The taxable status of all persons and property assessable for taxation in the city of New York shall be fixed for each year on the day of October in the preceding year provided by law for the opening of the books,” so far as it relates to real property, means that the condition of the property as to improvement shall be fixed for the purpose of determining its assessed valuation, and nothing more.</p> <p>Without the consent of all the heirs, an expenditure to build a mausoleum for the burial of the testator and only a part of his family was not a proper charge against the estate.</p> <p>A finding of the surrogate that legal services of the value of $3,000 had been proved to have been rendered the estate, and allowing the executrix credit for that amount should not be disturbed, where it appears that she actually paid her counsel $6,000, although the referee surcharged the account with the entire $6,000.</p> <p>Payments on account of mortgages of the decedent were properly made out of the principal of his estate.</p>

<p>Wills — trusts — petition by children of testator under Code of Civil Procedure, §§ 2689 or 2687, for distribution to them of portion of estate denied where they are not entitled thereto by terms of will and it has not been judicially determined that they are entitled thereto —• proper procedure is for executors to make final accounting and therein ask for construction of will.</p> <p>A petition by children of a testator under section 2689 or section 2687 of the Code of Civil Procedure for a distribution to them of a portion of the estate cannot be allowed, where they are not entitled thereto “ by the terms of the will ” within the meaning of section 2689, and it has not been determined that they are entitled to the “ distributive share of an estate ” within the meaning of section 2687, although in an action by one of the heirs of the estate to partition the realty on the ground that the trust provisions in the will were void, it was determined that one of the trusts was valid and that while the other was void it could be separated so that the entire trust was not destroyed and the complaint was dismissed, as all that was adjudicated in the action was that the testator did not die intestate as to his real estate.</p> <p>It seems, that the proper procedure is for the executors to make their final accounting and in that proceeding ask for a construction of the will. The decree entered therein may direct a disposition of any income accumulated under a void provision of the will and provide for the valid trusts.</p>

Appeal by the defendants, Arthur H. Lamborn 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 19th day of July, 1921, overruling defendants’ demurrer to the complaint and granting plaintiff’s motion for judgment on the pleadings with leave to defendants to withdraw the demurrer and serve an answer.

Appeal by the plaintiffs, Thomas H. Hall and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of October, 1921, confirming the report of a referee appointed to take proofs and report and granting plaintiffs’ motion to set aside the service of the summons herein.

Appeal by the defendant, Walker D. Hines, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1920, granting plaintiff’s motion to set aside the verdict of the jury and for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, William Willard Howard and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 1920, denying plaintiffs’ motion for judgment on the pleadings, and granting defendant’s motion for judgment on the pleadings and sustaining defendant’s demurrer to the complaint herein.</p>

<p>Appeal by the defendant, Transportes Marítimos Do Estado, 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 or about the 31st day of May, 1921, sustaining plaintiff’s demurrer to each of the separate defenses contained in defendant’s answer.</p>

<p>Appeal by the defendant, Max Schwarz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of January, 1921, granting plaintiffs’ motion for judgment on the pleadings, consisting of a complaint and demurrer thereto.</p>

<p>Appeal by the plaintiff, Charles J. Hyman, 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 August, 1921, denying plaintiff’s motion for judgment on the pleadings and sustaining defendant’s demurrer to the complaint.</p>

<p>Corporations — foreign corporation not maintaining place of business in this State and not having obtained leave to do business here — service of summons on officer temporarily sojourning in this State gives no jurisdiction, although he assumed to conduct negotiations but made no purchase for joint account of himself and his corporation.</p> <p>Service of a summons on one of the vice-presidents of a foreign corporation having no office or place of business in this State and never having applied for or obtained leave to do business here, while said officer was temporarily sojourning here, does not give the court jurisdiction of the corporation in an action on contract, where, taking the testimony in the light most favorable to the plaintiff, it may be inferred that the vice-president was in this State with an understanding with the defendant corporation that, in, his discretion, he was to purchase or to negotiate for the purchase of produce for their joint account and that, although on this occasion he made no such purchase, he assumed to conduct negotiations therefor and represented that he was conducting them for the defendant.</p>

Appeal by Daniel Rheinauer from an order of the Supreme Court, made at the .New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of July, 1921, denying defendant’s motion to confirm an award of arbitrators and granting plaintiff’s motion to set aside said award.

Appeal by the plaintiff, Franklin A. Regan, 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 November, 1921, limiting to the sum of $50,000 the security required to stay execution pending appeal from a judgment for $125,156.90.

Appeal by the defendant, Poels & Brewster, 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 4th day of May, 1921, granting plaintiff’s motion directing the defendant to serve a bill of particulars.

<p>Replevin — action by buyer against seller to obtain possession of goods to be paid for on arrival at specified place — complaint must show right to immediate possession .in plaintiff and wrongful withholding by defendant.</p> <p>A complaint in a replevin action to recover possession of certain goods, which the defendant had contracted to sell the plaintiff and deliver at a specified place, cash to be paid upon arrival, which does not allege such delivery and payment, fails to show that the property in the goods had passed to the plaintiff; and without allegations of ownership and right to immediate possession in plaintiff and wrongful withholding by the defendant, does not state a cause of action.</p>

Appeal by the defendant, Atlantic Stevedoring Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1921, upon the verdict of a jury for $35,000, and also from an order entered in said clerk’s office on the same day denying defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, Julius Brody, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 19th day of December, 1921, denying plaintiff’s motion to remove to the Supreme Court and to consolidate with this action an action pending in the City Court of the City of New York, entitled “ Edwin Gower, Plaintiff, against Julius Brody, Defendant.”

<p>Appeal by the defendants, Isaac E. Ferguson and another, from a judgment of the Supreme Court, New York county, rendered against them on the 29th day of October, 1920, convicting them of the crime of criminal anarchy under sections 160 and 161 of the Penal Law.</p>

Appeal by the defendants, Corrine Bailey 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 May, 1921, denying defendants’ motion for judgment on the pleadings dismissing the complaint herein, and also from an order entered in said clerk’s office on the same day overruling the demurrer interposed by the defendants to the complaint herein.

Appeal by the defendant, New York Dock Railway, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of January, 1921, upon the verdict of a jury for $35,000, and also from an order entered in said clerk’s office on the 28th day of January, 1921, denying defendant’s motion made upon the minutes to set aside the verdict and for a new trial.

Appeal by the defendant, Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 23d day of March, 1918, upon the verdict of a jury for $4,000, 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>Attorney and client — disbarment — attorney convicted in New Jersey of assault with intent to carnally abuse woman child under age of sixteen, characterized there as “high misdemeanor,” disbarred on ground that he had been convicted of felony within Judiciary Law, § 477, and name stricken from roll under Judiciary Law, § 88, subd. 3.</p> <p>An attorney should be disbarred under section 477 of the Judiciary Law and his name stricken from the roll of attorneys under subdivision 3 of section 88 thereof on the ground that he has been convicted of a felony, where it appears that he was convicted in New Jersey of the crime of assault with intent to carnally abuse a woman child under the age of sixteen, characterized there as a “ high misdemeanor ” and punishable by a fine of not exceeding $3,000, or by imprisonment at hard labor for not exceeding twelve years, or both.</p>

Appeal by the defendant, Michigan Central Railroad Company, from an order of the Supreme Court, made at the Steuben Trial Term and entered in the office of the clerk of the county of Steuben on the 15th day of November, 1921, denying defendant’s motion for judgment on the pleadings.

Appeal by Stanislaw Dybalski and another from a decree of the Surrogate's Court of the county of Erie, entered in the office of said Surrogate’s Court on or about the 7th day of April, 1920, admitting to probate the instrument offered by the petitioner as the last will and testament of Mi chalina, Dybalski, deceased.

Appeal by the defendant, Schmitt Brothers, Incorporated, 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 11th day of June, 1921, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 29th day of June, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Christian H. Hines and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of July, 1921, upon' the decision of the court rendered after a trial at the Kings Special Term in an action to obtain a decree declaring a certain deed to defendant Christian H. Hines to be a mortgage, and for an accounting.

• Appeal by the plaintiff, The John F. Trainor Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of January, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of January, 1921, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Appeal by the defendant, The Mechanics and Metals National Bank of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of June, 1921, denying its motion to have its demurrer to the avoidances and partial avoidances pleaded in a second amended reply to its pleas of the Statutes of Limitations as defenses to the action sustained.</p>

<p>Appeal by the defendants, Edmond Weil and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of December, 1920, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

Appeal by the defendant, Dock Contractor Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of June, 1920, upon the verdict of a jury.

<p>Husband and wife — divorce — application by defendant wife for expense money must show meritorious defense and lack of funds — counter allegation of adultery good defense — need for additional funds not shown — allowance cannot be made for past expenses.</p> <p>On an application by the wife, the defendant in a divorce action, for an allowance to cover future expenses of the action the burden is upon her to show that she has a meritorious defense and that she is not possessed of sufficient funds to defray the expenses.</p> <p>In determining whether the defense interposed is meritorious the court is not required to decide the merits of the controversy and the wife sustains the burden if it appears that she has a substantial defense to the cause of action alleged against her, and, on such application, a meritorious defense is shown where it appears that, although she does not deny the charge of adultery made against her, she does make counter charges against her husband.</p> <p>The fact that a prior allowance to the wife for expenses is exhausted is not conclusive as to the necessity for an additional allowance, but it must be made to appear also that she has not in hand sufficient funds to meet further expenses.</p> <p>Furthermore, the allowance made by the court of $7,500 was improper inasmuch as the affidavits upon which the order was made show that $2,000 only is required; the court cannot make an allowance for past expenses.</p>

<p>Appeal by John H. Delaney 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 Kings on the 12th day of August, 1920, confirming the eighth separate report of the commissioners of appraisal, which awarded $21,000 to respondents for damages alleged to have been sustained by reason of the destruction of vaults in the bed of the street in front of premises 503-513 Fulton street, borough of Brooklyn.</p>

Appeal by the plaintiff, Robert M. Thomson, as executor, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 26th day of January, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of February, 1921, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Mary A. Allen, as administratrix, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 21st day of February, 1921, upon the dismissal of the complaint by direction of the court at the close of the case after a trial before the court and jury, and also from an order entered in said clerk’s office on the 23d day of February, 1921, denying plaintiff’s motion to set aside said dismissal and for a new trial made upon the minutes.</p>

<p>Appeal by Stockbridge Apartments, Inc., the purchaser at a foreclosure sale in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term andr entered in the office of the clerk of the county of New York on the 6th day of July, 1921, denying its application for an order in the nature of a writ of assistance directing the sheriff to put the purchaser in possession of the mortgaged premises and to punish the occupants thereof for their refusal to yield up such possession, and also an appeal from an order entered in said clerk’s office ón the 19th day of October, 1921, denying its motion to punish the respondents as and for a contempt of court for their failure to deliver possession of the apartments in the said mortgaged premises occupied by them.</p>

Appeal by the plaintiff, Marguerite A. Blackwell, from an order of the Supreme Court, made at the New York Special Term and entered in -the office of the .clerk of the county of New York on the 29th day of November, 1921, denying plaintiff’s motion to strike out denials in paragraph “ fifteenth ” of the first separate and distinct defense, and in paragraph “ twenty-second ” of the'second separate and distinct defense contained in the answer herein.

<p>Appeal by the defendant, Nelson Z. Graves, 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 October, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of November, 1920, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Bills and notes — certificate agreeing to deliver government bond to bearer when bond should be issued not negotiable instrument — action by assignee of certificate to compel delivery of bond and for damages — complaint alleging that plaintiff is lawful owner and holder — motion to make definite and certain denied.</p> <p>A certificate issued by the defendants certifying that the bearer was entitled to receive a bond of the Kingdom of Belgium when, “ as and if delivered to them in definitive form by the obligor, and upon surrender of and in exchange for the certificate,” and which further provided that every taker and holder agreed that the defendants might treat the bearer of the certificate as the absolute owner thereof for all purposes, and that the defendants should not be affected by any notice to the contrary, is not a negotiable instrument.</p> <p>But said certificate approximates a negotiable instrument and in some respects the same rules apply.</p> <p>The allegation in the complaint, in an action by an assignee by delivery of the certificate to compel delivery of the bonds and for damages, that the plaintiff became “ and still is the lawful owner and holder thereof ” is not a mere statement of a conclusion of law, but is an allegation of an ultimate fact predicated on the other facts alleged that the certificate for value in the regular course of business came into the possession of the plaintiff; it was not necessary for the plaintiff to trace the sources of his title and set them out in the complaint.</p> <p>And, therefore, since under a general denial of the allegations of ownership the defendant could show any defect in the plaintiff’s title, or by way of defense could set up a bar to the right of action, a motion to make the complaint definite and certain in that respect should have been denied.</p>

<p>Appeal by the plaintiffs, Frank C. Woodruff and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of December, 1920, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of January, 1921, denying plaintiffs’ motion for a new trial made upon the minutes.</p>

<p>Pleadings — complaint — substantial amendment of complaint on trial and adjournment granted after motion to dismiss for insufficiency, although action commenced prior to taking effect of Civil Practice Act—Civil Practice Act, §§ 106, 1669, and Rules of Civil Practice, rules 106, 166, applied — court did not abuse discretion in granting amendment and adjourning trial — purpose of Civil Practice Act and Rules of Civil Practice.</p> <p>In an action commenced prior to the taking effect of the Civil Practice Act, but which came to trial thereafter, the trial court had the power by virtue of sections 105 and 1569 of the Civil Practice Act and rule 166 of the Rules of Civil Practice, to grant plaintiff’s motion, made after defendant had moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action, to amend his complaint in a substantial manner and to adjourn the trial of the case for two months.</p> <p>The obvious intention of rule 166 of the Rules of Civil Practice, which provides in part, “1. If a pleading be defective, whether for failure to state a cause of action * * * and objection thereto has not been raised before the trial, the judge may permit it to be amended * * *.</p> <p>In granting any amendment hereinbefore provided for, the judge may adjourn the trial or direct a new trial, and impose terms and conditions in his discretion,” is to give to the judge presiding at the trial the full power of the court to grant amendments to pleadings, and, therefore, any amendment that might have been granted by a judge at Special Term may be allowed by the judge presiding at the trial.</p> <p>The exercise of this power is safeguarded by giving to such judge full power to “ adjourn the trial, or grant a new trial and impose terms and conditions in his discretion,” and unless it shall appear that the discretion has been abused and the rights of the adverse party substantially impaired, the Appellate Division will not interfere with the action of the trial court.</p> <p>Furthermore, the defendant could have made the motion to dismiss based on the insufficiency of the complaint within twenty days after the service of the complaint under rule 106 of the Rules of Civil Practice, and it cannot now complain that the time that it might have secured by prompt action is lost through its own dilatory tactics.</p> <p>As it does not appear that the time allowed by the trial court was not ample to enable the defendant to prepare to meet the issues tendered by the amendment to the complaint, the Appellate Division will not interfere with the exercise of the discretion of the trial justice.</p> <p>The object of the Civil Practice Act and the Rules of Civil Practice was to simplify the practice, do away with many technical requirements, and avoid unnecessary and vexatious delays.</p>

Appeal by the plaintiff, Frances Gumbrell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 21st day of June, 1921, upon the dismissal of the complaint upon the merits at the end of the entire case, and also from an order entered in said clerk’s office on the 14th day of June, 1921, granting defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and dismissing the…

Appeal by the plaintiff, Louis Van Brink, from a judgment of the County Court of the county of Westchester in favor of the defendant, entered in the office of the clerk of said county on the 17th day of. June, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of July, 1921, denying plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, John Wilks, 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 11th day of May, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of May, 1921, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Newburgh Shipyards, Inc., and another, from an award of the State Industrial Board, entered in the office of the said Board op. or about the 18th day of July, 1921.

<p>Motion by the defendant, Kaltenbach & Stephens, Inc., for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division, First Department, in the first instance after the direction of a verdict in favor of the plaintiff at the close of the case upon a trial before the court and a jury at the New York Trial Term in May, 1921.</p>

Appeal by the defendant, Henry C. Zaro, 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 6th day of May, 1921, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 2d day of May, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frank Love 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 1st day of December, 1921, granting relator’s motion for a peremptory order of mandamus for his reinstatement as a member of Local Union No. 184 of the International Union of Steam and Operating Engineers, and also from an order entered in said clerk’s office on the same day granting…

<p>Appeal by the defendant, Frank S. Douglass, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of April, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Herman S. Johannsen, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of June, 1921, upon the decision of the court rendered after a trial at the New York Special Term requiring defendant to account and appointing a referee to take and state the account.

<p>Municipal corporations — city of New York — negligence — action against city for injuries caused plaintiff by falling from sidewalk into areaway on southerly side of City Court House — verdict against weight of evidence — new trial ordered — city in maintaining areaway performed governmental function and is not liable for negligence — negligence in maintaining sidewalk is only theory on which city can be held liable — prejudicial to show that fence had been erected since accident, especially as jury visited premises although court instructed them to disregard it — Code of Ordinances of City of New York, chap. 23, § 161, not applicable to open areas on public grounds.</p> <p>The plaintiff while walking along a sidewalk in the City Hall Park, borough of Manhattan, New York, was jostled by another pedestrian and fell into an areaway on the southerly side of the City Court House and sustained injuries for which he recovered a verdict'. The areaway is about six feet, eight inches wide and two feet, eight inches deep and is for the purpose of giving light and air to the basement of the building. Between the areaway and the sidewalk from which the plaintiff fell is a . stone coping twelve inches wide and varying from one and one-half inches to seven and one-half inches in height. A stairway in front of the building projects out a considerable distance beyond the line of the coping which would tend to guide pedestrians away from the areaway. The sidewalks in the City Hall Park are extensively used and at times congested. There was evidence that the sidewalk, areaway and coping had been in the same condition for at least twenty-six years, and probably nearly seventy years, but no similar accident had occurred. The theory upon which the plaintiff recovered was that the defendant was negligent in so maintaining or in failing to guard the areaway.</p> <p>Held, that the verdict was against the weight of evidence and a new trial must be had.</p> <p>The defendant in maintaining the areaway and coping, which were appurtenances to the court house, was performing a governmental function, as distinguished from its corporate functions, and cannot be held liable for any negligence in respect thereto. The only possible theory on which the city can he held liable is for negligence in maintaining the sidewalk.</p> <p>It was prejudicial to the defendant to have_ the fact brought out on the trial that a fence had been erected on the coping after the accident, especially as the jury inspected the premises, although the court instructed the jury that they should not be influenced because of the erection of a fence.</p> <p>Section 161 of chapter 23 of the Code of Ordinances of the City of New York, which provides for inclosing open areas with railings, does not apply to areas on public grounds and, hence, is not applicable here.</p> <p>Dowling and Page, JJ., dissent.</p>

<p>Appeal by the defendant, Charles L. Craig, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1921, granting relator’s motion for a peremptory writ of mandamus commanding the comptroller of the city of New York to pay to relator the sum of $248, overpayment made for taxes for the year 1920 on lot 59, block 1055, section 4, on land map of borough of Manhattan, city of New York.</p>

Appeal by the defendant, Charles L. Craig, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1921, granting relator’s motion for a peremptory writ of mandamus commanding the comptroller of the city of New York to pay to relator the sum of $2,576.10, overpayment made for taxes for year 1920 on lot 1, block 1055, section 4, on land map of borough of Manhattan, city of…

Appeal in the first above-entitled action by the defendant, Interborough Rapid Transit Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of January, 1921, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 20th day of January, 1921, denying defendant’s motion for a new trial made upon the minutes.

<p>Sales — action for purchase price of goods — counterclaim for defective quality sustained — implied warranty that goods were merchantable and fit for purpose for which purchased — objection that evidence is not within pleadings cannot be raised for first time on appeal — parol evidence rule not violated by admitting proof that seller knew purpose of purchase — sale not one of specified article under trade name — Personal Property Law, § 96, subd. 1, and § 130, applied — implied warranties may be drawn from facts outside contract.</p> <p>In an action for the purchase price of a quantity of cotton yarn, where the contract of sale was silent as to any warranties but simply specified “ Combed Sea Island Cotton Yarn on Cones. Regular twist — 22 turns,” the answer alleged as a counterclaim a warranty by the seller that the cotton was to be good and merchantable and of the first grade but that the cotton was in fact full of slugs and nits, unevenly spun and not merchantable, that the defendant had duly notified the plaintiffs of the condition of the cotton, and that the defendant had suffered damages because of said breach of warranty in a sum specified.</p> <p>Held, on all the evidence, that the verdict for the defendant should be sustained, and that there was an implied warranty both that the goods were merchantable and that they were fit for the purpose for which they were purchased.</p> <p>The failure to object upon the trial to evidence upon the ground that it is inadmissible under the pleadings is a waiver of insufficiency of the pleading and the objection cannot be raised for the first time on appeal.</p> <p>It was not a violation of the rule that parol evidence may not be used to vary the terms of a written contract to allow proof that the seller knew the purpose for which the yarn was purchased, in order to show the implied warranty.</p> <p>The sale in question was not a sale of a specified article under its trade name; and, if the seller had knowledge of the purpose for which the purchase was made, there was an implied warranty under Personal Property Law, section 96, subdivision 1, that the article furnished was reasonably fit for such purpose, and hence evidence of such knowledge on the part of the seller was properly admitted; and, it seems, that, if the contract should be construed to be one for the sale of a specified article under its trade name, then the evidence would not be objectionable as the buyer would have a right of offset for failure to deliver that article under Personal Property Law, section 130.</p> <p>Nor was such evidence inadmissible on the ground that there were no facts in the contract from which the implied warranties could be drawn as such warranties may be found from facts outside the contract.</p>

<p>Elections — canvass of ballots — failure of canvassing inspectors to fill out triplicate returns and keep tally sheets — peremptory mandamus to compel production of ballot boxes and canvass of ballots will not lie on application of chairman of board of county canvassers — proper remedy is for board of county canvassers to secure statement filed with police department showing result of election and require election officers to complete return therefrom.</p> <p>Where the inspectors of election properly canvass the vote in the manner provided by law and deliver to the police officer on duty a written statement of the result of the canvass, subscribed by the inspectors, correctly stating the number of votes received by each candidate for office at the election, but fail to fill out the official triplicate returns or to keep an official tally sheet, peremptory mandamus will not lie, on the application of the chairman of the board of county canvassers, to compel the production of the ballot boxes and envelopes containing the ballots and all void or protested ballots of the election district and to compel the inspectors to appear before the board of elections and proceed properly to canvass the ballots in the ballot boxes and envelopes and to file a return and tally sheet in accordance with the provisions of the Election Law.</p> <p>There is no inherent power in the court to entertain a proceeding of this character and authorization therefor must be found in the express provisions of the Election Law, and the Election Law does not give any power to the court to order a recanvass of the ballots by the inspectors of election.</p> <p>The tally sheet is not absolutely essential to the canvass of the vote, and so the proper remedy under the circumstances would seem to be for the board of county canvassers to send for the statement of the canvass of the vote of said election district, filed with, the police department, and summon the election officers whose names are subscribed thereto and direct them forthwith to meet and fill in the matters omitted from the return filed with the county clerk, in accordance with the canvass of said votes, as it appears upon the statement made by them and filed with the said police department, and to certify to the said return in the manner provided by law. Said return shall then be and constitute the official return of the votes cast at the election and shall be canvassed as such by the board of county canvassers.</p>

<p>Workmen’s Compensation Law — injury not arising out of and in course of employment — elevator operator injured by fall caused by attack of epilepsy or apoplexy — accidental injury not presumed.</p> <p>The claimant, an elevator operator, did not receive an injury arising out of and in the course of his employment, where it appears that as he started the elevator down from the sixth floor of the building, he lost consciousness; that when found his body was partially in the elevator and partially out through open doors in the elevator shaft in the basement; that the elevator and its equipment were intact in every particular and apparently in perfect working order; that there was.no evidence that he struck his head against anything in the elevator or that anything fell upon him; that when examined at the hospital he had a very high blood pressure; that the testimony of physicians was to the effect that the claimant either suffered a stroke of apoplexy or a fit of epilepsy at the moment he pulled the elevator cable, and that there was no other evidence as to what caused claimant’s injuries. „</p> <p>The claimant is entitled to no statutory presumption to establish an accidental injury.</p> <p>John M. Kellogg, P. J., and Woodward, J., dissent.</p>

Appeal by the plaintiff, Allan Dwan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of December, 1921, denying plaintiff’s motion to strike out the answer and for a summary judgment under rule 113 of the Rules of Civil Practice.

Appeal by the defendants, George L. Rickard 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 8th day of December, 1921, appointing, pendente lite, two receivers of the property of an alleged copartnership claimed by plaintiff to have existed between himself and the individual defendant, George L. Rickard, and restraining the defendants, and each of them, from interfering…

Appeal by the defendants, George L. Rickard 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 3d day of December, 1921, denying the motion of the defendants Madison Square Garden Corporation and Madison Square Garden Sporting Club, Inc., for an order suppressing certain affidavits filed subsequently to and in support of an application for the appointment of receivers in…

<p>Application for an order to stay proceedings before commissioners of estimate and assessment pending an appeal from an order denying confirmation of the report of commissioners and returning report to new commissioners to make a new report.</p>

<p>Attorney and client—attorney disbarred because convicted of felony.</p> <p>An attorney, upon being convicted of a felony, ceases to be an attorney or to be competent to practice law as such, by virtue of section 477 of the Judiciary Law, and must be disbarred.</p>

<p>Pleadings — motion by plaintiff for judgment on pleadings — order denying motion should not state that demurrer to complaint was sustained where defendant makes no counter-motion.</p>

<p>Certiorari order dated October 21, 1921, to review a final determination of the Motion Picture Commission of the State of New York.</p>

<p>Depositions — examination of defendant before trial — order modified.</p>

<p>Appeal from a judgment of conviction rendered on the 23d day of November, 1920, by the Court of Special Sessions, Municipal Term, Part II.</p> <p>Judgment of conviction of the Court of Special Sessions, Municipal Term, Part II, affirmed. No opinion. Blaekmar, P. J., Mills, Putnam and Manning, JJ., concur.</p>

<p>Appeal by the defendant from a judgment of the Supremo Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 9th day of May, 1921, and also from an order entered in said clerk’s office on the same day, denying a motion to set aside the verdict and for a new trial.</p>

<p>Appeal from an award of the State Industrial Commission, entered in the office of said Commission on the 26th day of February, 1921.</p>

<p>Appeal from an interlocutory judgment of the Supreme Court, entered in the Erie county clerk’s office November 23, 1920.</p>

<p> Appeal dismissed where judgment dismissing complaint on merits has no decision on which it is based. </p>

Appeal by defendant from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office June 27, 1921, denying its motion to vacate an order of attachment.

<p>Appeal — amount of verdict — defendant cannot base demand for reduction of verdict on absence of evidence which was rejected by court on defendant’s objection.</p>