Volume 200 — New York Appellate Division Reports

Appeal by the defendant, Central Union Trust Company 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 Bronx on the 26th day of March, 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 22d day of March, 1921, setting aside a verdict in favor of the defendant and directing a verdict in favor of the plaintiff.

<p>Appeal by the plaintiff, Crownshield Trading 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 7th day of September, 1921, as resettled by an order entered in said clerk’s office on the 17th day of September, 1921, sustaining defendant’s demurrer to the complaint for insufficiency and granting his motion for judgment on the pleadings with leave to plaintiff to plead over, and denying plaintiff’s motion for judgment on the pleadings.</p>

Appeal by the defendant, Nathan J. Kleinberg, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1921, granting plaintiff’s motion for leave to serve an amended complaint.

Appeal by the defendant, Anna M. Dallas, 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, 1922, denying defendant’s motion to sequester property of the plaintiff and to appoint a receiver thereof.

Appeal by the plaintiff, Elihu B. Frost, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 27th day of November, 1920, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, Jesse Winburn, 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 August, 1921] denying defendant’s motion for judgment on the pleadings, consisting of a complaint and a demurrer, and also from an order entered in said clerk’s office on or about the same day granting plaintiffs’ motion for judgment on the pleadings.

Appeal by the defendants, Producers’ Development Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1921, denying their motion for judgment on the pleadings.

Appeal by the defendant, John Barton Payne, 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 21st day of October, 1921, directing, on a motion by the defendant to change the place of trial from New York county to Sullivan county, that the place of trial be changed from New York county to Kings county, and also from an order entered in said clerk’s office on or about the 6th…

Appeal by the defendants, Amos D. Carver and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of November, 1920, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the same day denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Bay Dornfeld, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of October, 1921, denying plaintiff’s motion for an order amending the final judgment of divorce by adding thereto a direction that the defendant pay to the plaintiff thirty dollars weekly as and for the support and maintenance of the two sons of the parties.

Appeal by the plaintiff, Louis Binder, 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 12th day of June, 1920, upon the dismissal of the complaint at the close of plaintiff’s case. '

Appeal by the defendant, Public Service Corporation of Long Island, from a judgment of the Supreme Court in.favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 6th day of June, 1921, upon the decision of the court rendered after a trial at the Nassau Trial Term, a jury having been waived.

Appeal by the defendants, National Gravure Circuit, Inc., 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 30th day of June, 1921, overruling their demurrers to the amended complaint and denying their motions for judgment on the pleadings.

<p>Appeal by the plaintiff, Percy Kent 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 22d day of January, 1921, upon the dismissal of the complaint upon the merits at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 14th day of February, 1921, denying plaintiff’s motion to resettle said judgment.</p>

Appeal by the defendant, Payne Whitney, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of October, 1920, upon the verdict of a jury for $40,000; also from an order entered in said clerk’s office on the 29th day of December, 1920, denying defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the same day denying…

<p>Landlord and tenant — leases — tenant may remove own movable office partitions under lease allowing removal of “ movable office furniture.”</p> <p>A tenant of offices under leases which provide that “ all alterations, additions or improvements which may be made by either of the parties hereto upon the premises, except movable office furniture put in at the expense of the tenant, shall be the property of the landlord,” may remove from the premises sectional movable partitions put in by him, though in order to erect them it was necessary to drill holes in the cement floors and in the walls and ceilings, where he, by repairing, at his own expense, leaves the premises undamaged.</p>

<p>Appeal by the plaintiff, The A. C. & H. M. Hall Realty Company, from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 9th day of June, 1921, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Fifth District, in favor of the plaintiff, and directing a new trial. (See 115 Mise. Rep. 506.)</p>

Appeal by the plaintiff, Julia Mabs, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 14th day of May, 1921, upon the dismissal of the complaint by direction of the court at the close of the entire case.

<p>Sales — action for purchase price of goods — evidence of appropriation of goods to contract by seller with consent of buyer not admissible under complaint alleging sale and delivery — appropriate allegations for complaint in action for purchase price based on appropriation of goods to contract by seller with consent of buyer — tender of delivery and refusal to accept not equivalent to actual delivery and does not authorize recovery of purchase price under Personal Property Law, § 132.</p> <p>In an action for the purchase price of goods, under a contract which provided for delivery at a particular place, wherein the complaint alleges sale and delivery, but the goods were not actually delivered, it is reversible error to admit, over defendant’s objection that the evidence was not within the pleadings, evidence offered by plaintiff to the effect that the goods were set aside by plaintiff at its place of business, and there retained at the request of defendant on its representation that it was not ready to receive them.</p> <p>It seems, that if plaintiff had alleged that the goods, in a deliverable state, had been unconditionally appropriated to the contract, with defendant’s assent, a recovery might be sustained under subdivision 1 of rule 4 of section 100 of the Personal Property Law.</p> <p>It seems, that a tender of delivery and refusal to accept the goods would not be equivalent to an actual delivery as alleged, nor would it authorize a recovery of the purchase price under section 132 of the Personal Property Law.</p>

<p>Motion for reargument of an 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>

Appeal by defendant, New York Herald Company, from an order of the Supreme Court, made at the Queens Special Term and entered in the office of the clerk of the county of Queens on the 10th day of December, 1921, granting plaintiff’s motion for judgment on the pleadings.

Appeal by defendant, Alexander H. Figge, 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 15th day of April, 1921, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 16th day of April, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Gabriel J. Cohen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of January, 1922, granting plaintiffs’ motion for an injunction pendente lite restraining the defendant from using the name “ Frances,” and also restraining the defendant from using the name “ Madame Frances.”

Appeal by the plaintiff, 440 West End Avenue, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of August, 1921, upon an order granting defendant’s motion for judgment on the pleadings and dismissing the complaint.

Appeal by the defendant, Sol H. Strober, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of November, 1921, upon the verdict of a jury rendered by direction of the court.

Appeal by .the defendant, George B. Herzig 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 16th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of February, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Stayton Realty Corporation, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of November, 1921, denying the plaintiff’s motion for judgment upon the pleadings consisting of a complaint and answer, and a demurrer to the counterclaim in the answer.

<p>Appeal by the plaintiff, 103 Park Avenue 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 23d day of November, 1921, granting the motion of the defendant Exchange Buffet Corporation to dismiss the complaint.</p>

<p>Appeal by the defendants, Edward G. Meyer and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 26th day of July, 1921, upon 'the decision of the court rendered after a trial at the Bronx Special Term.</p>

Appeal by the defendant, Harden, Orth & Hastings Co., Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of March, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of April, 1921, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Alfred Wolff, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of November, 1921, granting the defendant’s motion for a bill of particulars.</p>

Appeal by the plaintiff, William S. Leeds, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of January, 1922, denying the plaintiff’s motion to amend or resettle the case on appeal from a final judgment.

Appeal by the plaintiff, A. H. Woods Theatre Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of January, 1922, denying plaintiff’s motion for an injunction pendente lite restraining the commissioner of licenses of the city of New York from revoking the license of the Eltinge Theatre in the city of New York.

Appeal by the plaintiff, A. H. Woods Theatre Company, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of January, 1922, denying plaintiff’s motion for reargument of motion for injunction pendente lite.

Appeal by plaintiff, Rubel Bros., Inc., 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 24th day of November, 1920, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the plaintiff, 507 Madison Avenue Realty Co., Inc., from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 9th day of June, 1921, affirming a final order of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in summary proceedings dismissing the petition of the plaintiff and awarding the tenant possession.

Appeals by the plaintiff, L. Francis Ray, from orders 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, sustaining several demurrers to the complaint, and from judgments of the Supreme Court in favor of the defendants Harry L. Powers, individually and as surviving executor and trustee of Jesse W. Powers, deceased, and Elizabeth H. Powers, entered in the office of the…

Appeal.by the plaintiff, The Fitzgerald Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of July, 1921, vacating and setting aside a judgment by default in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of December, 1920, and permitting the defendant to interpose an answer and defend.

<p>Appeal by the defendant, William Wallack, 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 December 1, 1921, granting a' temporary injunction pending the trial of the action restraining defendant from using a trade name.</p>

<p>Appeal by the defendant in the first entitled action, The State of New York, and by the claimant in the second entitled action, The City of New York, from an order and judgment of the Court of Claims, entered in the office of the clerk of said court on the 16th day of March, 1921.</p>

Appeal by George R. Lunn from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Schenectady on the 5th day of November, 1921, granting relator’s motion for a peremptory mandamus order requiring the. appellant to allow and permit the relator to make an examination and inspection of certain books, bills, etc., relating to the moneys or license moneys paid to him by the exhibitors of Sunday motion pictures…

Appeal by defendant, Bryant C. Winchell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 7th day of January, 1921, upon the decision of the court rendered after a trial without a jury at the Erie Trial Term. This appeal was transferred to this department from the Fourth . Department of the Appellate Division. (See 199 App. Div. 909.)

Appeal by the defendants, Buena Vista Oil Company and another, from a decision and award of the State Industrial Board, entered in the office of said Board on the 16th day of April, 1921.

Appeal by the defendant, Thomas M. Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 14th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of February, 1921, denying defendant’s motion for a new trial made upon the minutes.

<p>Workmen’s Compensation Law — admiralty and maritime employment — employee injured while repairing compressor boat in East river, used by employer in construction of pier, was engaged in maritime employment — defective vision which can be corrected by glasses no basis for award — depreciated earnings due to defective vision might in proper case warrant award.</p> <p>An employee, who was injured while repairing a boiler on a compressor boat used by his employer in the construction of a pier in the East river at Brooklyn, was at the time engaged in work of a maritime nature and within admiralty jurisdiction, and, therefore, is not entitled to an award under the Workmen’s Compensation Law.</p> <p>Defective vision which can be corrected to normal by glasses cannot form the basis of an award.</p> <p>It seems, that if because of the nature of his employment, the claimant cannot wear glasses at all times, he might be entitled to an award based on depreciated earnings.</p>

<p>Appeal by the defendant, iEtna Life Insurance Company, ‘from a decision and award of the State Industrial Board, entered in the office of said Board on the 29th day of June, 1921.</p>

<p>Real property — Drainage Acts — action to cancel certificate of sale given under Drainage Acts and to determine ownership of award — proceedings resulting in certificate examined — no jurisdictional defects found — certificate held valid — adverse possession cannot be based on tax lease — constructive possession of plaintifis sufficient to maintain action — mere acquiescence will not create estoppel — no question of title involved in condemnation proceeding — right to bring action to remove cloud on title never barred by Statute of Limitations — certificate presumptive evidence of facts stated — when order presumed to be court order — owner need not join in petition — not necessary to give names of landowners benefited — want of venue in commissioners’ oath mere irregularity — any irregularity in connection with treasurer’s bond waived — map and survey sufficient — description of land sufficient — not necessary that certificate in terms authorise purchaser to take possession — certificate not invalidated by void provision therein for lease — award — defendant Considine Investing Company entitled to income of award for remainder of term, then corpus goes to plaintiffs’ successors.</p> <p>In an action to cancel a certificate of sale given under the Drainage Acts (Laws of 1869, chap. 888, as amd.) as a cloud on the title to certain lands and to determine the ownership of an award for a portion of such lands condemned by the State, an examination of the proceedings discloses no jurisdictional defects and the certificate is valid.</p> <p>Adverse possession under claim of title could not be founded upon the certificate of sale.</p> <p>The constructive possession following the legal title in plaintiffs was sufficient to enable them to maintain this action.</p> <p>Mere acquiescence will not create an estoppel in pais and prevent' plaintiffs from assailing der. ndants’ title or interest under the certificate.</p> <p>The final order in thu condemnation proceeding presents no bar to plaintiffs’ right to maintain this action, for no question of title was or could be involved in said proceeding.</p> <p>The right of an owner in possession to invoke the aid of a court of equity to remove a cloud on his title is never barred by the Statute of Limitations while he remains such owner in possession.</p> <p>The certificate is made by statute presumptive evidence of the facts stated and it will not avail onr attacking it that the record does not show that certain requirements of the statute were not complied with. He must prove that they were not so complied ivith.</p> <p>Regardless of the form of the papers, it will be presumed in the absence of proof to the contrary, that the proceeding was a court proceeding and the order a court order, if at the time of the application there was a term of County Court in session.</p> <p>The owner of the land is not by the statute required to join in the petition as the statute provides “ and any person or persons who shall deem it necessary for the public health that such lands be drained may present the petition. If necessary, the word “ and ” may be construed “ or ” in order to give a reasonable construction to the statute.</p> <p>It is unnecessary to state the names of the owners who will be benefited by the drainage. The word “ affected ” as used in the statute applies to the lands necessary to be acquired for the drainage.</p> <p>The want of a venue in the commissioners’ official oath is merely an irregularity which was waived by failure to object.</p> <p>Any irregularities in filing the treasurer’s bond were waived as the parties all proceeded to a final order with full knowledge concerning said bond without objection.</p> <p>The map and survey was sufficient for it was approved by the County Court, and its determination was affirmed by the General Term on appeal. Any defect in the map was a mere irregularity, and if not then pointed out was waived.</p> <p>The description of the land in the certificate is adequate as it refers to the map approved and filed and the land may be readily located from it.</p> <p>The statute did not require that the certificate of sale in terms authorize the purchasers to take possession, hence the objection based on the omission of such authorization was not well taken.</p> <p>The fact that the commissioners exceeded their authority and undertook to provide in the certificate of sale for a lease and thereafter executed such lease does not invalidate the entire certificate.</p> <p>The defendant ponsidine Investing Company is entitled to the income from the award for the remainder of the term named in the certificate of sale, and then the corpus of the award passes to plaintiffs’ successors in interest.</p>

<p>Depositions — examination of defendants before trial under Civil Practice Act, § 290, in action commenced before act took effect — not necessary to first obtain order of court or judge that interest of justice requires application of act — such question may be determined on motion by defendants to stay examination — theory of act in respect to depositions — practice not to be assimilated to practice under Code of uivil Procedure — purpose of act in respect to depositions.</p> <p>Section 290 of the Civil Practice Act, relating to the examination of a party before trial, is a remedial provision within the meaning of section 1569 of said act, and so an examination may be instituted thereunder in an action commenced before the Civil Practice Act took effect. It is not necessary to the validity of the proceeding to procure an order of a court or judge that the interest of justice requires that the provisions of said section apply. If the party to be examined objects he may move to stay the examination and the court can then determine whether the interest of justice requires that the examination be conducted under the act.</p> <p>As compared with the Code of Civil Procedure, the Civil Practice Act proceeds upon an entirely new theory as to examinations before trial. It was assumed under the Code that parties ordinarily were not subject to examination, and a party desiring to examine his adversary was required to prove circumstances authorizing such examination. Under the Civil Practice Act all parties are subject to examination, and the burden of applying to the court is cast upon the party who objects to such examination.</p> <p>The practice.under the Civil Practice Act is not to be assimilated to the practice under the Code of Civil Procedure.</p> <p>The intent and purpose of the Civil Practice Act is to remove from proceedings of this character all procedural trammels and to permit examinations of adverse parties with as few restrictions as possible.</p>

Appeal by the defendant, United States Fidelity and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 13th day of July, 1921, upon the decision of an official referee appointed to hear and determine the issues.

Appeal by the plaintiff, Hartford Accident and Indemnity Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 11th day of July, 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 same day denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, George EHs and another, from two awards of the State Industrial Board, entered in the office of said Board on the 28th day of April, 1921, and the 15th day of September, 1921, respectively.

<p>Railroads — action to recover for death of driver of motor truck caused by street car colliding with truck — contributory negligence — failure to look at point where view unobstructed constitutes contributory negligence — failure of driver of truck, which was moving slowly, to observe approaching car, which was visible for three hundred feet, was contributory negligence.</p> <p>A person about to pass over a railroad crossing is under a duty to look for approaching trains at the point where his vision is unobstructed, and, in case he fails so to do, he is guilty of contributory negligence.</p> <p>In an action to recover for the death of the driver of a motor truck who was killed in a collision between an interurban electric car and a truck which he was driving, it was contributory negligence on his part, as a matter of law, to fail to observe the approaching car, where it appeared that his truck was moving slowly; that his vision in the direction from which the car came was unobstructed for some twenty feet before he reached the crossing, and that if he had looked and observed he could have seen the car approaching at a distance of at least three hundred and fifty feet.</p> <p>Cochrane, P. J., dissents.</p>

Appeal by the defendants, Charles Neff and another, from a decision and award of the State Industrial Board, made on the 31st- day of May, 1921, affirming a prior award of the State Industrial Commission, made on the 8th day of February, 1921.

Appeal by the defendants, Jacob Hoffman Brewing Company and another, from a decision and award of the State Industrial Board, entered in the office of said Commission on the 31st day of March, 1921.

<p>Railroads — action for death of plaintiff’s intestate killed while crossing on private railroad bridge — evidence — question for jury not raised by negative evidence that signal was not heard — intestate was trespasser — willful injury not shown — use of bridge by other people did not make intestate licensee — error to admit expert testimony as to time in which train should have been stopped where hypothetical question not based on actual conditions — instructions — error to refuse to charge that if engineer sounded whistle and applied brakes as soon as he discovered intestate might not get off track in time he was not guilty of willful act — error to refuse to charge that engineer had right to assume in first instance that intestate would get off track.</p> <p>In an action to recover for the death of plaintiff’s intestate, who was struck by one of defendant’s engines while she was on a bridge of the defendant, which was not a public crossing, a question of fact as to whether a warning signal was given was not raised by purely negative testimony to the effect that the witnesses did not hear a warning signal given, where there was positive evidence on the part of defendant’s witnesses that a warning was given.</p> <p>At the time of the accident plaintiff’s intestate was a trespasser on defendant’s bridge and the defendant owed no duty except not to wantonly or willfully injure her. There is no evidence in the record that the defendant’s engineer evinced a reckless disregard for the life or limb of the deceased.</p> <p>Though there was some evidence that for a long period of time the railroad bridge in question had been used by the people in the neighborhood thereof as a means of foot passage, this did not constitute plaintiff’s intestate a licensee.</p> <p>It was error for the court to permit expert witnesses to testify as to the time within which the engineer should have stopped the train, as the hypothetical questions put to the witnesses were based upon conditions and equipment not obtaining on defendant’s road at the time and place of the accident.</p> <p>It was error for the court to refuse to charge the jury that “ if the jury find that immediately upon discovering that this girl was on the track and not likely to get off in time, the engineer did sound his whistle and apply his brakes, he was not guilty of any wanton, or willful, or reckless act,” for the charge was correct as requested and the court had not so charged before in words or effect.</p> <p>It was error, also, for the court to refuse to charge that “ the engineer was not bound to try to stop this train the instant that he saw the deceased upon the bridge, but that he had the right, in broad daylight, if his train was perfectly visible and its approach apparently heard and known, to assume, at least in the first instance, that this girl would get off the track.”</p>

<p>Appeal by the defendants, Max Canno and another, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 16th day of May, 1921, upon the decision of the court rendered after a trial at the Sullivan Trial Term before the court without a jury.</p>

<p>Appeal by the petitioner, Edward J. Quinn, from a final order of the County Court of Rensselaer county, entered in the office of the clerk of said county on the 16th day of November, 1920, dismissing the petition in summary proceedings to disposses.</p>

<p>Taxation — transfer tax — no tax due under Tax Law, § 220, where decedent during lifetime assigns insurance policy on his life to trustee to provide trust fund for benefit of family after his death accompanied by trust deed containing right of revocation and proceeds of policy are paid to trustee on death of insured.</p> <p>No tax is due under section 220 of the Tax Law, as it existed on May 1, 1915, relating to taxable transfers of property, where one during his lifetime, by an assignment containing no reservations or conditions, assigns an insurance policy on his life to a trustee to provide a trust fund for the benefit of his wife, his son and others after his death, accompanying such assignment with a deed of trust which provides that the premiums on the policy shall be paid by the insured, reserves to the insured the right to receive all distributive shares of surplus of the insurance company issuing the policy and also reserves power of revocation providing that upon revocation the trustee shall release all right to said policy which it may have acquired by virtue of the deed or any assignment made in order to effectuate the deed; and the policy is delivered forthwith to the trustee and, after the death of the insured, the proceeds of the policy are paid to the trustee.</p> <p>The transfer of the policy and its proceeds was not made in contemplation of death, nor made to take effect in possession or enjoyment upon death only, within the meaning of the statute, and furthermore the proceeds of the policy, which came rightfully into the hands of the trustee, never became part of the estate of the insured, and so there has not been and cannot be a transfer of the proceeds of the policy under the will of the deceased or the intestate laws of the State.</p>

Appeal by the defendants, Charles P. Molla and another, from a decision and award of the State Industrial Board, entered in the office of said Board on the 11th day of May, 1921.

Certiorari issued out of the Supreme Court and attested on the 23d day of April, 1921, directed to the Public Service Commission of the State of New York, Second District, commanding it to certify and return to the office of the clerk of the county of Albany all and singular its proceedings had in requiring the relator to amend its schedules of rates for gas and to file new schedules, and denying a rehearing.

<p>Principal and agent — stockbroker maintaining office in Kingston appearing to be branch office of New York firm of brokers but conducting business under private agreement not to act as agent for said firm held to have acted as such agent in reference to transactions with plaintiff — firm liable for conversion of securities deposited by plaintiff as collateral and sold by firm without notice.</p> <p>One Kline and the defendants, constituting the firm of C. H. Van Burén & Co., one or more of whom were members of the Consolidated Stock Exchange, entered into an agreement whereby Kline, not a member of the Exchange, should conduct an office" for dealing in stocks at Kingston, N. Y. Under the agreement Kline was to pay the expenses of the office, hire the employees, keep his own bank account, and deal with customers in his own name and not as the agent of defendants, but was to buy and sell securities for his clients through the defendant firm. The account to be kept by said firm was to be an omnibus account, in which should be entered and carried in Kline’s name all the items of purchases and sales through the Kingston office; no account was to be carried in the name of a client, and where securities were purchased on margin the margin of each client was to be deposited without distinction as collateral for this omnibus account.</p> <p>The office was opened and business conducted pursuant to the agreement. On the door were the words: “ John D. Kline, Broker. Correspondent C. H. Van Burén & Company, Member of the Consolidated Stock Exchange.” Plaintiff was a client of the office and had with it a margin account to cover which he had delivered to Kline his collateral, consisting in part of securities assigned in blank. After a time the margin deposited by Kline to protect the omnibus account became insufficient and Kline failing to increase the deposit, the securities held in the omnibus account, including those of plaintiff, were sold by defendants, without notice to plaintiff, although plaintiff, apparently, had on deposit sufficient collateral to protect his own account.</p> <p>In an action for the conversion of the securities, held, upon all the evidence, that the jury were justified in finding not only that the defendants by their acts knowingly held out Kline as authorized to act on their behalf in conducting the business or knowingly permitted Kline to so hold himself out, so that plaintiff could and did rely on such apparent authority, but also that Kline actually acted as defendants’ agent in his transactions with plaintiff, and hence a recovery should be allowed.</p>

<p>Appeal by the defendants, Solomon Heller and another, from a decision and award of the State Industrial Board, entered in the office of said Board on the 9th day of May, 1921.</p>

Certiorari issued out of the Supreme Court and attested on the 15th day of July, 1921, directed to the State Tax Commission, of the State of New York, commanding it to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had by its predecessor, the Comptroller of the State of New York, in adjusting an account for income taxes of the relator for the taxable year 1919 under article 16 of the Tax Law, and in revising said…

Appeal by the defendants, William H. Rowe, Jr., 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 Washington on the 10th day of May, 1921, upon the decision of the court rendered after a trial before the court without a jury, adjudging a legacy of $2,000 bequeathed by Truman Waller, deceased, to be a lien upon the premises described in said judgment owned by the defendants, and directing the sale…

<p>Appeal by the defendants, P. Nathan & Company and another, from a decision and award of the State Industrial Commission, entered in the office of said Commission on the 29th day of March, 1921.</p>

Appeal by the defendant, F. R. Phillips & Sons Company, from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 9th day of June, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in favor of the plaintiff.

<p>Pleadings —■ complaint —■ conspiracy to commit actionable wrong not actionable — wrongful acts of conspirators alone give rise to cause of action —• causes of action for separate torts though committed through conspiracy must be separately alleged.</p> <p>A conspiracy to commit an actionable wrong is not in itself a cause of action. Wrongful acts committed by conspirators resulting in injury alone give rise to a cause of action.</p> <p>Where several separate and distinct torts are committed in the carrying out of a conspiracy, each tortious act resulting in damages creates an independent, separate cause of action against one or more of the conspirators, and must be separately alleged in the complaint.</p>

Appeal by the defendant, Duffy Malt Whiskey Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of June, 1921, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived and the case having been submitted on stipulated facts.

Appeal by the defendant, Richard E. Enright, from a judgment of the Supreme Court in favor of plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1921, upon an order made at the New York Special Term granting plaintiff's motion for judgment on the pleadings, declaring chapter 651 of the Laws of 1918, adding section 355-a to the Greater New York charter (Laws of 1901, chap. 466), inapplicable to defendant as police commissioner and…

Appeal by the defendant, L. R. Mack, Inc., 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 2d day of July, 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.

Appeal by the plaintiff, Delaware Mills, Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 6th day of August, 1921, upon the decision of the court rendered after a trial without a jury at the Broome Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the plaintiff, Jesse S. Phillips, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 13th day of July, 1921, upon the report of an official referee appointed to hear and determine the issues, in so far only as the judgment refuses and omits to give plaintiff judgment for an additional sum of $50,000.

<p>Appeal by the defendant, The Globe and Rutgers Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 25th day of June, 1921, upon the verdict of a jury.</p>

Appeal by Frederick P. Hudson from a decree of the Surrogate’s Court of the county of Suffolk, entered in the office of said Surrogate’s Court on the 19th day of April, 1920, judicially settling the accounts of the executors of the last will and testament of Henry T. Carey, deceased.

<p>Appeal by William J. Amend and others from a decree of the Surrogate’s Court of the county of Queens, entered in the office of said Surrogate’s Court on the 16th day of May, 1921, after a trial by a jury, denying probate to the paper writing propounded as the last will and testament of Julia F. Meade, and also from an order entered in said office on the same day denying the appellants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, John L. Klages, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of October, 1921, upon the decision of the court rendered after a trial at the Queens Special Term.</p> <p>Appeal by the plaintiff, The Jacob Hoffmann Brewing Company, from so much of said judgment as adjudges that the defendant Frank Wuttge has not and did not have at the time of the commencement of this action any interest in the premises described in the complaint, and also from an order entered in said clerk’s office on the 2d.day of November, 1921, resettling and amending the decision upon which said judgment was entered.</p> <p>The judgment decreed that the tenant, defendant Wuttge, had at the time of the commencement of the action no interest in the premises described in the complaint, and then directed foreclosure of the mortgage against the interest of the tenant only, and barred and foreclosed the interests of all the defendants “ in and to the mortgage lease.”</p> <p>Defendant Wuttge, having a lease of the premises No. 422 Jackson avenue, borough of Queens, for a term of twenty-one years from the 1st day of June, 1913, mortgaged the same to plaintiff to secure a loan of $10,000, with interest at six per cent from June 19, 1914. The tenant, Wuttge, being in arrears for rent on the 16th of February, 1920, the landlord, defendant Klages, began dispossess proceedings in the Municipal Court. On February twentieth, the tenant not appearing, a final order awarding possession to the landlord was granted, but no warrant was ever issued thereon. When the precept was served on Wuttge he delivered the keys to the landlord, who re-entered. On February twenty-eighth the landlord leased the premises to Samuel Harwood for ten years at a greatly increased rental, with the privilege of renewal for five years more at a still greater rental.</p> <p>The plaintiff knew that the rent was in arrears, but learned of the dispossess proceedings only after service of the precept on Wuttge, and the landlord, when he accepted the surrender of the premises from the tenant, knew of the plaintiff’s interest as mortgagee. On May seventh the plaintiff filed with the Municipal Court justice a notice of its intention to redeem pursuant to section 2257 of the Code of Civil Procedure, but on June fourth the landlord, without the knowledge of plaintiff, obtained an order discontinuing the dispossess proceedings. The lease to Harwood recites that it is subject to the right of the plaintiff as mortgagee.</p> <p>Action was brought on April 5, 1921, to foreclose the mortgage. The court granted judgment of foreclosure, limiting it to the interest of defendant Wuttge in the leasehold, although finding that Wuttge had no interest remaining after the surrender. Both sides appeal.</p>

Appeal by the defendants, Merritt & Chapman Derrick and Wrecking Company and another, from a decision of the State Industrial Board, dated the 2d day of November, 1921, denying an application for a rehearing and confirming an award made the 3d day of February, 1919.

<p>Contracts — action for breach of contract to deliver milk to factory —• contract signed by several parties each agreeing to furnish milk from number of cows set opposite signatures — complaint against one of parties states cause of action at law — measure of damages is loss of profits — loss or depreciation on plant not element of damages — loss of future profits allowable — party cannot object to reference as to damages where he acquiesced at trial in statement by court that parties had agreed to refer question of damages — order of reference directing referee to take and report evidence as to damages with recommendation improper — direction to report on damages accruing from violation of contract by other parties improper.</p> <p>The plaintiff, a manufacturer of butter and cheese, signed a contract with the defendant and several other milk producers whereby the plaintiff agreed to erect and equip a factory and the defendant and other producers agreed to deliver to the plaintiff’s factory the milk produced by the number of cows set opposite their respective signatures to the contract. Under the contract the defendant agreed to deliver the milk of eighteen cows. The complaint alleged that the defendant failed to deliver the milk of eighteen cows or any cows for a stated time and demanded judgment that the defendant account for the proceeds from the milk of eighteen cows during the time he failed to deliver it and for judgment against the defendant for the amount found due to the plaintiff upon said accounting.</p> <p>Held, that the complaint states a cause of action at law to recover damages for breach of contract.</p> <p>The plaintiff has by his complaint fixed the measure of damages which must be, thereunder, the loss of profits which he has sustained and will sustain because of the failure on the part of the defendant to deliver to him the milk of eighteen cows.</p> <p>Loss or depreciation on the building and equipment cannot be an element of the damages, as the plant and equipment may be used to serve all who may become patrons irrespective of whether they signed the contract or not.</p> <p>While loss of future profits is allowable as a part of the damages those profits must be limited to the milk of eighteen cows.</p> <p>The defendant cannot claim that the order referring the question as to the amount of damages to a referee for determination, after the verdict of the jury had established the fact of defendant’s liability, was made without his consent, since he must be deemed to have acquiesced in the making of the order, as it appeared that the court stated at the trial that it had been agreed between the court and the attorneys to submit to the jury only the question of liability and that if the jury found the defendant liable the ease would be finished before a referee, and that the defendant did not object to that statement.</p> <p>But the order of reference which directed the referee to take and report the evidence as to damages with his recommendation was improper, for it should have directed him to hear and determine the question of damages.</p> <p>Furthermore, it was improper to direct the referee, in effect, to take proof of the damages accruing to the plaintiff by reason of the violation of the contract by the other subscribers thereto, for their liability was not involved in the present action.</p>

• Appeal by the plaintiff, Guy W. Beardsley, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 14th day of October, 1916, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, Lehigh and Hudson River Railway Company, from a decision and award of the State Industrial Board, entered in the office of said Board on the 26th day of August, 1921.

Certiorari issued out of the Supreme Court and attested on the 8th day of April, 1921, directed to James A. Wendell, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had relating to his adjustment of an account for income taxes for the taxable year 1919 against the relator, under article 16 of the Tax Law, and in revising said account.

Appeal by the defendant, Harry Cooper, from a judgment of the Court of Special Sessions of the City of New York, Borough of Brooklyn, rendered on the 13th day of June, 1921, convicting him of the crime of maintaining a public nuisance, and also from an order of said court made on the 17th day of June, 1921, directing him to abate the nuisance in thirty days, and further directing that, in case of his default, the sheriff of the county of Kings abate the nuisance forthwith..

Appeal by the defendant, Lawrence Messenger, from a judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Kings on the 13th day of December, 1921, upon the decision of the court rendered after a trial at the Kings Special Term, a jury having been waived.

Application by the Hon. Selah B. Strong, a justice of the Supreme Court, for leave to appeal to the Court of Appeals from the order of this court entered February 21, 1922, and for a stay of execution of the order pending such appeal. (200 App. Div. 918.) No opinion was written by this court upon granting the order; but in view of the application to appeal to the Court of Appeals, we think that we should set forth the grounds and the reasons upon which we acted.

<p>Municipal corporations — water rates — city of Yonkers had power to assess water rates against unimproved lots belonging to city of New York— Second Class Cities Law, §§94 and 95, and supplemental charter of city of Yonkers (Laws of 1908, chap. 452), art. 8, § 8, construed and applied —■ opportunity for hearing on assessment not denied.</p> <p>Under section 94 of the Second Class Cities Law (Laws of 1906, chap. 473), the city of Yonkers had power to assess water rates against unimproved lots belonging to the city of New York, and section 8 of article 8 of the supplemental charter of the city of Yonkers (Laws of 1908, chap. 453), which provides a more detailed method of establishing a scale of rents for the use and supply of water bo buildings in the city than is contained in the Second Class Cities Law, does not limit the power of the city of Yonkers to establish water rates for unimproved property to compensate for the benefits indirectly conferred upon such property.</p> <p>The city of New York was not denied an opportunity for hearing on the assessment of water rates against its property, for under section 95 of the Second Class Cities Law water rates are to be included in the general assessment rolls, upon which ample opportunity is given for a hearing.</p>

Appeal by the defendant, John F. Hylan, from an order of the Supreme Court, made at the Queens Special Term a.nd entered in the office of the clerk of the county of Queens on or about the 29th day of August, 1921, granting a peremptory writ of mandamus commanding him “ to forthwith prevent the operation of the Bus line of the Rockaway Auto Bus Company from operating on the streets of the City of New York, particularly in Rockaway Park, Belle Harbor, Neponsit, Roxbury and…

<p>Executors and administrators — diversion of funds of estate by executor to pay individual debt — action maintainable against person receiving funds if he had actual or constructive notice —■ deposit in bank of certificate of deposit payable to executor as such — payment to bank on same day of individual note of executor —• bank had constructive notice of diversion of funds —■ bank liable for difierence between individual funds of executor on deposit in bank and amount paid on note — not error to exclude evidence by defendant that balance in executor’s personal account had been paid to his estate.</p> <p>Where the funds of an estate are diverted by an executor and used for the payment of his individual debt under such circumstances that the creditor has actual or constructive notice of the diversion, a suit may be maintained in equity to trace the funds or, in a proper case, an action at law for conversion.</p> <p>The deposit by an executor in his personal account of a certificate of deposit issued by another bank, which shows on its face that it represents funds deposited by him as executor in the bank issuing the certificate, and the payment by him on the same day of a note due to the bank in which the certificate is deposited, by a check drawn against his individual account, is constructive notice to the bank that the executor is using the funds of the estate to pay his own debt.</p> <p>But since the executor had a balance in his personal account on the date the certificate of deposit was deposited, the bank cannot be held liable for any more than the difference between the executor’s personal funds then on deposit and the amount paid by him on the note, for it is an established principle of equity that when a depositor draws his check upon an account, in which trust funds are mingled 'with his own, and uses the money for his own purposes, it must be held that he used his own funds as far as possible, and that whatever balance remained in the account was impressed with a trust.</p> <p>It was not error for the court to exclude evidence on the part of the bank as to whom it paid the balance in the executor’s personal account at the time of his death, as it would not help the bank’s case to show that with notice of the diversion, it voluntarily paid the balance to the executor’s estate.</p>

<p>Appeal by Francis Rooney, as executor, etc., and others from so much of a decree of the Surrogate's Court of the county of Orange, entered in the office of said Surrogate's Court on the 28th day of March, 1921, as adjudges that the provisions of the 9th clause of said will creating a trust are invalid, and that the 10th clause of said will is invalid.</p>

Appeal by the defendant, Morris S. Sehoenbaum, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of-the clerk of the county of Queens on the 3d day of November, 1921, upon the report of a referee appointed by an interlocutory judgment to take and state an account, with notice of an intention to bring up for review the said interlocutory judgment entered in said clerk’s office on the 24th day of November, 1920, and also from an order…

Appeal by the defendant, Procter & Gamble Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February, 1922, denying its motion to vacate and set aside the service of the summons.

<p>Principal and agent — action for commissions due upon premiums paid on renewal of bonds — evidence — testimony as to meaning of terms of contract as customarily understood properly rejected — testimony as to consideration paid by plaintiff for his partner’s interest in claim properly rejected — accord and satisfaction — payment made on undisputed claim not accord and satisfaction as to disputed claim — verdict in favor of plaintiff supported by evidence —■ limitation of actions — commissions on premium paid on each renewal gives rise to separate cause of action — statute is bar only to commissions on premiums collected more than six years before action commenced — plaintiff entitled to commissions on annual fidelity bonds renewed by new bonds or renewal certificates — plaintiff not entitled to commissions on renewal of bond given prior to commencement of agency — plaintiff not entitled to commissions on bond changed to conform to regulations of United States government — plaintiff not chargeable with commissions paid on reinsurance premiums.</p> <p>In an action to recover certain commissions alleged to be due on premiums on renewal of bonds written by plaintiff and his assignor during the period of their agency with the defendant, in which the court rejected evidence offered by the plaintiff to show the meaning of the term “ business written,” it was proper for the court to reject similar evidence offered by the defendant solely to disprove that the plaintiff was qualified to testify as to the custom in the business by giving a different version.</p> <p>Inasmuch as the defendant did not on the trial take the position that the term “ business written ” was a well-understood term in the surety insurance business, but that the words as used were to be determined in accordance with the contract, and in view of the surrounding. circumstances, and not by reference to a custom of the business, evidence tending to show the meaning of the words as customarily used was properly rejected.</p> <p>It was not error for the court to exclude evidence offered on the part of the defendant as to the consideration which the plaintiff paid to his partner for an assignment of the partner’s interest in the claim against the defendant.</p> <p>Checks sent by the defendant to the plaintiff and his assignor in payment of outstanding premiums collected after the termination of the agency, the liability for the payment of which was not disputed, did not amount to an accord and satisfaction of the plaintiff’s entire claim, for, by accepting payment of a valid and subsisting claim, the plaintiff could not be held to have accepted the same in accord and satisfaction of the claim in suit which was a distinct, disputed claim.</p> <p>The verdict in favor of the plaintiff was supported by the evidence and was not contrary to the law.</p> <p>Each item of premium paid on the renewals gave rise to a separate cause of action and the plaintiff’s right to commissions on said premiums was barred as to all premiums collected prior to six years before the action was commenced, but it was not barred as to premiums collected within the six-year period.</p> <p>The cause of action for commissions on premiums collected within the six-year period was not barred by an account stated followed by an accord and satisfaction, for the account that was rendered was for the collection of premiums outstanding at the termination of the agency, which was an admitted indebtedness and the payments that were made were on account of that admitted indebtedness and did not embrace in any way the disputed items.</p> <p>The plaintiff was entitled to commissions on the premiums paid upon the renewal of annual fidelity bonds, whether said renewals were effected by the issuance of new bonds or by the giving of renewal certificates, providing the terms and conditions thereof were the same.</p> <p>The plaintiff was not entitled to commissions on a premium on a renewal of a fidelity bond executed prior to the commencement of the agency and renewed by a new bond written by the plaintiff’s firm.</p> <p>The plaintiff was not entitled to commissions on the cancellation of certain revenue bonds on the demand of the United States government and the issuance of other bonds in a different form in conformity with the requirements of the government, for these bonds being issued on a different form, were not renewals of the old bonds, but were new contracts.</p> <p>The plaintiff was not chargeable with commissions paid on the reinsurance premiums, where the defendant had paid full commissions to the plaintiff during the continuance of the agency as to those policies, for by so doing the defendant waived its claim to a refund of the amount of the commissions, and, as to the premiums collected during the period that the claim for commissions was held to be barred by the Statute of Limitations, the plaintiff cannot be required to pay back a portion of that for which he is not credited.</p>

Appeal by the defendant, Sachs Manufacturing Co., Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of November, 1921, denying defendant’s motion to set aside the service of the summons.

Appeal by the defendant, Russo-Asiatic Bank, from a judgment of the Supreme Court in favor of the plaintiff,- entered in the office of the clerk of the county of New York on the 1st day of July, 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 11th day of July, 1921, denying defendant’s motions to reopen the case, to be allowed to introduce further proof, and to amend the amended answer.

<p>Ships and shipping — action for injury to passenger — carrier cannot exempt itself from liability for negligence without consideration — limitations of actions — limitation which required passenger to give notice of claim within forty days after debarkation unreasonable, especially where limitation not in contract signed and retained by passenger.</p> <p>A passenger on a steamship may debar himself by a contract, founded upon a sufficient consideration, from any claim for damages for injuries to his person occasioned by the negligence of the carrier during the course of transportation, but in the absence of any consideration moving to the passenger for his agreement to release the carrier, and to assume the risk of injury from the negligence of the carrier, said agreement is invalid and unenforcible, and the carrier is not relieved of its common-law liability for negligence.</p> <p>In the instant case there was no evidence offered of any consideration moving to the passenger; it is not stated that the ticket was sold at a reduced rate, nor was it shown that there was a higher rate which the passenger could have paid and secured the full protection of the carrier’s liability. Without an alternative between rates which the passenger could elect, the exemption of the carrier from liability is the arbitrary and unreasonable demand of the carrier to be relieved of its common-law liability, to which, as there was no alternative to demur, the passenger was not required, and will not be deemed, to have consented.</p> <p>The mere statement in the ticket that “ the price of passage hereunder has been fixed partly with reference to the liability assumed by the company as defined by this contract ” is not of itself sufficient to show any consideration for an exemption from liability for the carrier’s negligence.</p> <p>The limitation in the ticket to the effect that no action could be maintained for any injury to a passenger unless written notice of the claim be delivered to the company within forty days after debarkation, was an unreasonable limitation as to time, especially in view of the fact that the contract was not signed by both parties nor was it delivered to and retained in the possession of the passenger, who was not discharged from a hospital in a foreign country until after the time limited had expired.</p> <p>Smith and Greenbaum, JJ., dissent.</p>

Appeal by the defendant, McQuade Stevedoring 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 2d day of December, 1920, upon the verdict of a jury; also from an order entered in said clerk’s office on the 26th day of November, 1920, adding interest to the verdict, and also from an order entered in said clerk’s office on the 9th day of December, 1920, denying defendant’s motion for a…

Appeal by the defendants, Aaron Katz 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 14th day of March, 1921, upon the verdict of a jury rendered by direction of the court after a verdict in favor of the defendants had been set aside.

Appeal by the defendant, Margaret I. Hoyt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of June, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Arthur E. Grannis, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of January, 1922, denying his motion to declare as null and void and to vacate and set aside so much of the judgment entered herein as refers to said Grannis and to amend said judgment by striking therefrom said defendant’s name and the phrase “ copartners trading under the firm name…

<p>Bills of lading — action against carrier on straight bill of lading delivered to plaintiffs, named as consignees, on payment of draft — carrier liable where it struck out name of consignees in way bills and substituted name of shipper without return of original bill of lading — carrier estopped from denying representations in bill of lading.</p> <p>A carrier of freight is liable to the consignees named in a straight bill of lading, where it appears that the shipper of the goods sent the original bill of lading, with a draft attached, through the banks and the consignees. paid the draft and received the bill of lading, but that before the goods were actually shipped by the carrier, the latter, at the instance of the shipper and without the return of the original bill of lading struck out the name of the original consignees from the way bills and substituted the name of the shipper as consignee and rebilled the goods to another point of destination and there delivered them to the shipper, and the consignees have not been reimbursed by the shipper for the payment of the draft.</p> <p>When the original consignees received the bill of lading they had the right to rely upon the representations on the part of the defendant expressed therein that the goods had been shipped to them, and it was upon the strength of such representations that they paid the draft drawn against them, and under the principle of law that where one of two innocent parties must suffer, the loss should fall upon the party who was originally responsible for causing it, the carrier should be held liable for the loss.</p> <p>Moreover, the carrier is estopped from denying the representations contained in the bill of lading and is answerable in damages for the consequences which resulted from its own act.</p>

<p>Depositions — examination of defendant before trial — action on contract — merits of defense of substituted contract not considered on application for examination of defendant before trial — order too indefinite which directs examination into “ all other details of the said transaction ” — under Code of Civil Procedure production of books and papers by individual cannot be ordered on examination before trial — books may be procured on subpoena duces tecum — interest of justice does not require application of Civil Practice Act, § 296.</p> <p>On. an application to vacate an order for the examination of the defendant before trial, the court will not adjudicate upon the merits of a defense, and, therefore, in an action on a contract in which the defense set up is that the original contract was abrogated and another substituted, it is not a valid objection by the defendant to the granting of an order for examination before trial as to the original contract, that that contract had been superseded by the one set up in the defense, for the plaintiff will be required to prove his cause of action as set forth and he is entitled to the examination of the defendant in relation thereto.</p> <p>The order for the examination of the defendant before trial was too indefinite, however, in that it required an examination as to “ all other details of the said transaction within the personal knowledge of the defendant; ” this might lead to an examination into the defendant’s defense and counterclaim.</p> <p>It was improper for the court in the order for the examination which was made pursuant to the provisions of the Code of Civil Procedure, to direct the defendant to produce his original books of account and other books and records, for at that time there was no authority for requiring an individual or copartner to produce books and papers.</p> <p>If it shall become necessary on the examination to use any books or papers of the defendant, they can be produced under a suhpcena duces tecum.</p> <p>The interest of justice does not require the application of section 296 of the Civil Practice Act to this action.</p>

Appeal by the plaintiff, Joseph Levine, 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 August, 1921, denying his motion to sustain a demurrer to the counterclaim in defendant’s answer.

Appeal by the defendant, Christian H. Hilbert, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of February, 1922, granting plaintiff’s motion for leave to amend the complaint.

Appeal by the defendants, Sidney Hillman and others, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1921, as denies defendants’ motion for leave to open their default in serving an amended answer, and to vacate and set aside a judgment dismissing their counterclaim and for leave to serve an amended answer.

Appeal by the plaintiff, Mischa Elman, 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, granting defendant’s motion for a bill of particulars in so far as it requires plaintiff to annex to the bill of particulars ordered a copy of the music which he claims to have tendered to the defendant and a copy of the complete score and orchestration which he claims…

Appeal by the plaintiff, Max Rosen, from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the City Court of the City of New York on the 20th day of January, 1921, reversing a judgment of the City Court of the City of New York in favor of the plaintiff, and an order denying defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, City Investing Company, from a judgment of the Supreme Court in favor of the defendants Gerken and others, entered in the office of the clerk of the county of New York on the 26th day of July, 1920, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits as to said defendants.

Appeal by the defendant, States Marine & Commercial Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of April, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of May, 1921, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Ida L. DuVal 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 15th day of June, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1921, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, United States Fastener Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of June, 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.

Appeal by the defendant, Charles Scribner’s Sons, 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 January, 1922, granting plaintiff’s motion to strike out the first and second defenses of the amended answer.

Appeal by the plaintiff, Railroad Service and Advertising Company, from a judgment of the County Court of the county of Orange in favor of the defendant, entered in the office of the clerk of said county on the 26th day of May, 1921, upon an order granting defendant’s motion for judgment on the pleadings dismissing the complaint.

Remittitur from the Court of Appeals of an appeal by the relator, Frank E. Dawley, from an order of the Appellate Division, Third Department, entered on the 13th day of July, 1921, reversing an order entered upon an appeal by the defendants, Charles S. Wilson and others, from an order of the Supreme Court, made at the Albany Special Term on the 21st day of August, 1920, except that part of said order which disallowed one claim of the relator, and also from an order, entered…

<p>Appeal by the defendant, Universal Film Manufacturing 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 12th day of May, 1921, denying defendant’s motion for judgment on the pleadings consisting of a complaint and a demurrer thereto, and also from an order entered in said clerk’s office on the same day overruling the defendant’s demurrer to the complaint herein.</p> <p>The pleadings consist of the complaint and a demurrer thereto on the grounds, (1) that the court has not jurisdiction of the person of the defendant; (2) that the court has not jurisdiction of the subject of the action; (3) that there is a defect of parties plaintiff in that one Fernando Poli is a necessary party plaintiff; (4) that said Poli is a necessary party defendant, and (5) that the facts stated are insufficient to constitute a cause of action.</p> <p>This is a suit in equity to have it adjudged that the plaintiff and defendant were copartners or joint adventurers in the ownership and management of a theatrical and motion picture business conducted in the Teatro Campoamor, a theatre in Havana, Cuba, subject to assignments to said Poli by each of them of a ten per cent interest, and entitled to share equally in the profits over and above fifty per cent thereof, to which the defendant was entitled for furnishing film services and conducting the business, and ten per cent to which the said Poli was entitled for services rendered by him; and that defendant be required to account and for other and further relief. The complaint shows that the defendant is a domestic corporation, and exhibits annexed thereto contain recitals to the effect that at the dates thereof the plaintiff was a citizen of the United States but resided in Havana, Cuba. Plaintiff alleges that on the 31st day of August, 1916, he obtained from an association known as the Centro Asturiano de la Habana a lease of the theatre for the exhibition of motion pictures for the term of three years commencing September first of that year at a rental of $1,800 per month; that pursuant to the terms of the lease he deposited with the lessor $7,200 as a guaranty for the fulfillment of his obligations thereunder and paid the rent for one month in advance; that, in contemplation of his taking the lease, he and the defendant entered into a copartnership agreement or joint adventure for conducting the motion picture business in the theatre for the period of the lease, which agreement was reduced to writing on the fifteenth of September, and a copy thereof marked Exhibit A forms part of the complaint; that the effect of the agreement was that the lease, although taken in the name of the plaintiff, •was to belong to the parties in equal shares, and defendant assumed fifty per cent of plaintiff’s obligations thereunder, and plaintiff was to sublet to the copartnership, and defendant was to reimburse him, as therein provided, to the extent of one-half of the amount so deposited with the lessor and paid on account of rent, and that the box office receipts were to be deposited as therein provided, and on the last day of each month $1,800 was to be set aside therefrom for rent for the succeeding month, and the other expenses of operation were to be deducted, and the balance was to be divided between the parties in the proportion of twenty-five per cent to the plaintiff and seventy-five per cent to the defendant, and defendant was to bear the advertising expenses. Plaintiff further alleges that he was so reimbursed by the defendant and that the parties commenced business under the agreement on the 1st of September, 1916, and conducted it continuously thereafter until on or about the 24th of October, 1918, when the theatre was destroyed by fire; that during that period, in accordance with the mutual understanding of the parties, not, however, definitely expressed in the agreement, defendant was intrusted with the supervision and management of the business including the books of account and box receipts; that part of the profits realized from the business was invested from time to time in furniture, fixtures and other assets needed by the enterprise, in all of which the plaintiff by virtue of the provisions of the agreement has an undivided one-half interest; that at the time the parties commenced business under the agreement they each agreed to give Fernando Poli, in consideration of the performance by him of certain services for the copartnership, five per cent of the net profits of the business, which amount was to be paid by defendant from the profits; that the distribution of profits under the agreement was to be made by defendant in the proportions of seventy per cent to defendant, twenty per cent to plaintiff and ten per cent to Poli; and that down to the 19th of October, 1918, the defendant accounted and paid over to the plaintiff twenty per cent and to Poli ten per cent of such net profits. It is further alleged that on or about May 29, 1917, the interests of the parties hereto required that the then existing lease be terminated, and that a new lease of the theatre containing modifications and different terms increasing the rent to $25,000 per annum and extending the term to a period of three years from September 1, 1917, should be taken, but that it was understood and agreed that the then existing agreement between the parties for conducting the business should apply for the period of the new lease; that plaintiff accordingly procured in his name from the lessor a new lease, a copy of which marked Exhibit B is made part of the complaint; that on July 31, 1917, the parties agreed to modify their agreement with respect to the lease standing in plaintiff’s name and his subletting to the copartnership by providing that he should assign to the defendant a one-half interest in the lease, and that they should become joint lessees, and should allow the theatre to be used by the copartnership pursuant to all of the other terms and conditions of their agreement ; and that pursuant thereto plaintiff on that date assigned to the defendant a one-half interest in the leáse, and a copy of the assignment marked Exhibit C is made part of the complaint. That assignment recites that it was made in consideration of the payment to plaintiff by defendant of $5,000; but plaintiff alleges that the payment was not made and that the assignment was made solely to carry out the modification of Exhibit A as agreed to by the parties, and that he received no consideration therefor. It is then alleged that the parties conducted the business under the new lease in the same manner as under the former lease until the fire; and that on account of the fire their business was discontinued until on or about the 10th of May, 1919; that on request of defendant, plaintiff paid on account of rent for the months of November and December, 1918, $400 per month, which it was mutually agreed was his share of the rental, being approximately twenty per cent thereof; and it was also agreed that the defendant’s share was seventy per cent and that Poli’s share was ten per cent; and that in those proportions they advanced the money for the rent, it having been mutually agreed that they were to be reimbursed therefor out of the first profits thereafter derived from the operation of the business; that on the 25th of January, 1919, by an instrument in writing in the Spanish language, plaintiff assigned his remaining interest in the lease to the defendant. A copy of the translation thereof into English is annexed to the complaint as Exhibit D. It is recited therein that plaintiff received from defendant $10,000 as consideration therefor, but plaintiff alleges that said consideration was not paid and that he received no consideration except the execution of another agreement, in writing, between him and defendant made simultaneously with the execution of said assignment and as consideration to plaintiff therefor, which agreement was approved and signed by Poli, and a copy thereof marked Exhibit E is made part of the complaint, to the effect that said assignment of plaintiff’s remaining interest in the lease was not to affect his rights, ownership or interest in the profits, proceeds or operation of the theatrical business conducted in the theatre; and that his said rights, ownership and interest were to remain the same as theretofore, as was also his ownership of one-half the deposit of $7,200, and of the assets of the partnership under Exhibit A; and that therein the terms of the partnership or joint adventure, evidenced by Exhibit A, under which the business had been conducted and was to continue, “ were more fully set forth, and the term of said partnership was increased and specifically fixed so that it should continue until the termination ” of the lease of the theatre dated May 29, 1917, “ or any novation or extension thereof which should be granted to the defendant; ” that said agreement specifically recognized and confirmed the assignment to Poli of five per cent by the plaintiff and of five per cent by defendant of the net profits of the business and provided that the profits were to be divided in the proportions of seventy per cent to the defendant, twenty per cent to the plaintiff, and ten per cent to Poli and recognized and confirmed the previous assignment by plaintiff and defendant to Poli of ten per cent of their respective interests in the assets of the partnership other than profits; that on the 18th of February, 1919, defendant, with the consent of Poli and the plaintiff, entered into a novation of the lease with the lessor by an instrument in writing in the Spanish language, a copy of which translated into English is annexed as Exhibit F; that the novation lease canceled the former lease and substituted therefor a new lease of substantially the same character but containing certain modifications and changes and extending the leasehold period until October 31, 1920, and from that time on from month to month and was intended by the parties to constitute a novation of the prior lease and that it was also intended that all of the provisions of the agreement, Exhibit E, relating to the copartnership between the plaintiff and defendant and to their respective interests in the profits, assets and money so deposited with the lessor should continue and remain in full force and effect for the term of the novated lease; that plaintiff offered to advance his proportion of the additional guaranty required by the novated lease but the defendant preferred, on account of its relations with the lessor, to make the additional deposit itself and did so by mutual agreement of the parties; that during the months of February, March and April, 1919, the theatre not having been fully repaired and restored so as to enable the resumption of the motion picture business, defendant requested plaintiff to furnish and pay as a proportionate share of the rental the sum of $400 per month and he did so; that on or about May 10, 1919, the motion picture business was resumed as before and yielded sufficient revenues to pay the rent and all expenses and to leave net profits for which the defendant was obligated to account to the plaintiff under Exhibit E, and that in the operation of the business defendant recognized plaintiff’s rights as a partner or joint adventurer the same as theretofore and frequently consulted him with regard to various matters arising in the conduct of the business; that on or about the 1st of July, 1919, plaintiff requested defendant to render an account of his share of the profits since the resumption of business and to pay the same, but this was not done and defendant assigned as the reason for not complying with the request, the illness of its bookkeeper, and a few days thereafter, defendant having reimbursed itself and Poli out of the net profits for advances made for rent, paid plaintiff $2,000 as a repayment of the advances made by him on account of rent and the further sum of $3,600 on account of his share of the profits for which no accounting had been rendered but that his share of the profits at that time greatly exceeded that amount, and that about two months after making such payments to the plaintiff defendant informed him that since it had become the sole lessee and the amount of plaintiff’s share of the profits had not yet been determined because the accounts had not been made up, it desired, for bookkeeping purposes, to treat the payment to the plaintiff of the $3,600 as a return of one-half of the $7,200 deposited by him under the prior lease as a guaranty and he thereupon, at defendant’s request, executed a receipt for said amount dated July 19, 1919, a copy of which is annexed as Exhibit G; that plaintiff again requested an accounting of his share of the profits and defendant again assigned the illness of the bookkeeper as an excuse for not complying with the request and further stated that if plaintiff needed money he could procure a loan from the bank and that defendant’s agent would indorse his note for that purpose and accordingly defendant, through one King, its agent, indorsed plaintiff’s note for $6,000 payable in ninety days, on an agreement by the plaintiff that defendant might hold as security for such indorsement his share of the profits for which no account had been rendered by defendant, and that on the 31st of October, 1919, when the note became due, defendant paid it and reimbursed itself by deducting the amount thereof from the plaintiff’s share of the profits; that during the months of August and September, 1919, plaintiff continued to request the defendant to account for his share of the profits but it delayed so doing on various pretexts and on or about the beginning of November, that year, wholly repudiated and denied the right of the plaintiff to any accounting in the premises and excluded him from any participation in the management of the business and claimed that he was no longer a partner in the enterprise; that ever since May, 1919, defendant conducted and still conducts the theatre under the novated lease and has derived large net profits from the enterprise over and above all losses and expenses and is obligated to account to the plaintiff for twenty per cent thereof as provided in Exhibit E and that plaintiff’s share in such profits is greatly in excess of the $6,000 already paid by the defendant, and defendant, although repeatedly requested to render an accounting to plaintiff therefor, has failed and refused so to do excepting to the extent of paying the $6,000, and has appropriated to its own use the entire net profits derived from the business during said' period with the exception of said $6,000 paid to the plaintiff and of ten per cent of the net profits paid to Poli and that ever since about the 1st of November, 1919, defendant has maintained and still maintains exclusive control over the books and assets of the partnership or joint adventure and has denied and still denies to plaintiff all access to the books and any control over the assets; that plaintiff has duly performed all of the terms and conditions on his part to be performed under the copartnership agreements, Exhibits A and E; that Poli is a resident of Cuba and without the jurisdiction of this court and not amenable to the service of process here and that defendant has accounted for and paid to Poli ten per cent of all the net profits realized from the business from the inception thereof to date, and that plaintiff has no adequate remedy at law.</p> <p>The prayer for relief is that the plaintiff and defendant may be adjudged to be equal partners or joint adventurers in the ownership and management of said theatrical and motion picture business subject to the assignment by each to Poli of ten per cent of his interest as set forth in Exhibit E; that the parties are entitled to share equally in the surplus profits of the business after the deduction of fifty per cent of the profits to which the defendant is entitled as compensation for furnishing film service and conducting the business and the ten per cent to which Poli is entitled for his services and that defendant be directed to account to the plaintiff for all profits heretofore received by it whether in its own name or in the name of any other firm or corporation from the ownership or management of said theatrical and motion picture business or conducting it since the 19th of October, 1918, and to pay over to the plaintiff such sum as shall be found due to him on the accounting, namely, twenty per cent, less the $6,000 heretofore paid and for other and further relief.</p>

Appeal by the defendant, Joseph G. Lavine, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February, 1922, denying his motion to -set aside the service of the summons herein.

<p>Appeal by the defendant, Harry Alt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of October, 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>

<p>Ships and shipping — action to recover balance due on letter of credit issued to pay for goods to be shipped from New York to Barcelona —■ defense that plaintiff failed to comply with condition in letter of credit requiring shipment before certain date — bills of lading — error to exclude certain evidence tending to show recently established custom to treat delivery to transportation company as actual shipment — custom matter of fact.</p> <p>In an action to recover a balance due on a letter of credit, issued to provide for . the payment for goods shipped from New York to Barcelona, Spain, where the defense was that the plaintiff had not shipped the goods within the time limited in the letter of credit, having merely delivered them to the steamship company and taken its “ received for transportation ” bill of lading, the ship which was to transport them not even being at the time in port, it was reversible error for the court to exclude a circular letter, issued by the defendant to its various customers and correspondents less than two months after the letter of credit in question was issued and some four months before shipment was to be made by plaintiff, which set forth regulations for payments under export commercial credits, adopted by the New York Bankers Commercial Credit Conference of 1920, and purporting to be subscribed to by the defendant and a large number of important banks in various parts of the world, which regulations provided for payment on “ received for transportation ” bills of lading, giving as an explanation for such action that the steamship lines constituting the Transatlantic Conference state that the customary procedure necessitated by American port conditions is to issue bills of lading against the receipt of goods into the custody of the steamship owners or agents and that it is impossible to issue “ on board ” bills of lading. It was likewise reversible error to exclude the testimony offered by plaintiff of the assistant head of defendant’s export commercial credit department and of another banker of large experience in commercial credit matters tending to show the existence of the custom of treating delivery to the steamship company as shipment and knowledge thereof by defendant.</p> <p>Custom is not a matter of opinion gained merely by conversation with others, but is a matter of fact and must be shown by those who have observed the method of transacting the particular kind of business as conducted by themselves and others.</p>

<p>Guaranty — action on guaranty of payment of draft drawn to pay for specific merchandise to be shipped — shipping receipt and draft failed to describe such merchandise — drawee refused to accept draft — guarantor not liable.</p> <p>A guarantor of the payment of a draft, drawn to cover the purchase price of certain specified merchandise to be shipped by the drawers to the drawees, is not liable on his guaranty, where it appears that neither the draft nor the express company’s receipt described the merchandise specified in the guaranty and that, therefore, the drawees refused to accept the draft.</p> <p>An invoice of the shipment by the drawers to the drawees has no bearing on the question as it is merely a declaration by the drawers.</p>

<p>Corporations — action to compel transfer of stock of Delaware corporation on books of corporation — stock delivered in this State by corporation to brokers for sale — brokers wrongfully used it in Massachusetts as their own collateral — plaintiff purchased without notice of claim of corporation — by-law that stock could be transferred only on books of company — plaintiff entitled to have stock transferred to him on books — estoppel — corporation estopped from claiming as against plaintiff that stock was delivered conditionally to brokers — judicial notice not taken of statutes of another State — transfer may be enforced in this State.</p> <p>One who purchases stock in a Delaware corporation, for value and without knowledge of any claim of the corporation to the stock, is the owner thereof as against such corporation and entitled to have the same transferred on the books of the corporation and to have new certificates issued in his own name therefor, where it appears that the corporation issued the stock in this State to brokers without consideration and merely for the purpose of having them sell it, certifying, however, that the brokers were the owners thereof; that it was transferable “ only on the books of the company by the holder * * * in person or by a duly authorized attorney upon surrender ” of the certificate properly indorsed, and that the brokers, in the State of Massachusetts, duly executed in blank the assignment and power of attorney on each certificate and wrongfully pledged the stock as collateral to their note, the stock later being bought by the plaintiff at auction.</p> <p>Under the law of this State and the State of Massachusetts, a by-law of the corporation providing that the stock was transferable on the books of the company only upon surrender of the certificate is of no importance in such a case, for the corporation is estopped as against a purchaser without notice from claiming that the delivery of the certificates to the brokers was made conditionally and that they did not comply with the conditions; and as no proof was offered of the Delaware statutes and this court will not take judicial notice of the statutes of another State, it is not to be presumed that the laws of Delaware authorized the corporation to make a by-law protecting it against its own voluntary act in issuing stock to the detriment of a purchaser in due course and for value.</p> <p>It seems, that since the corporation maintains a transfer agency in this jurisdiction, the transfer may be enforced here and it could be enforced here against the officers authorized to make the transfer.</p>

Appeal by the plaintiff, Maria McArdell, from a judgment of the Supreme Court in favor of the defendant R. H. Casey, Inc., entered in the office of the clerk of the county of New York on the 14th day of October, 1921, upon the dismissal of the complaint as to said defendant by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 11th day of October, 1921, directing the severance of plaintiff’s action…

<p>Contracts — action for breach of loan agreement resulting in forced sale of plaintiff’s equity in property upon which loan was to be made — judgment for plaintiff based on rule of damages very favorable to defendant affirmed — damages — proper measure of damages value of equity less amount realized on sale.</p> <p>In an action to recover damages for the breach of an agreement to loan money on a first mortgage upon certain property at five per cent interest in order that a six per cent building loan mortgage might be paid off and funds obtained to complete the building on the premises, there was evidence tending to show the breach by defendant, that plaintiff was unable to obtain a loan elsewhere and that the breach resulted in the forced sale of plaintiff’s equity in the property. The complaint was for the value of plaintiff’s equity, but the court ruled that plaintiff could recover no more than the difference between the interest on the building loan mortgage and the interest to be paid defendant if the loan had been made and left it for the jury to decide whether plaintiff in the exercise of reasonable diligence could have obtained a loan which would have reduced or avoided the interest loss. Defendant made no objection to such ruling.</p> <p>Held, that as the rule of damages was most favorable to defendant and there were no serious errors prejudicial to him, a judgment in favor of plaintiff should be affirmed.</p> <p>Evidence erroneously received that plaintiff sustained the loss of other equities also did not affect the verdict under the theory of damages upon which the case was submitted.</p> <p>An error of the court in leaving it to the jury to say whether the loan agreement required that the building should be completed before the defendant was obliged to make the loan or whether it required merely the production of certain certificates as evidence of that completion was not so prejudicial under the circumstances as to require a new trial.</p> <p>It seems, that the proper measure of damages was the value of plaintiff’s equity above the amount realized on the sale thereof.</p>

<p>References — order made on court’s own motion directing reference to hear and determine — requirement in order, inserted without consent of either party, that each party file bond to secure expenses of reference improper —■ mandatory requirement improper.</p> <p>Where the court on its own motion directs that a cause be referred to a referee to hear and determine, it is improper, without the consent of the parties, to include in the order a requirement that each party file a bond to secure the costs and expenses of the reference, including the referee’s fees. Such a requirement will be stricken out on appeal although the appeal is taken only from the requirement in respect to the appellant.</p> <p>It seems, that if such a requirement would'be proper under any circumstance, it could only be imposed as a condition of granting some relief desired by a party, and even then a mandatory order, compliance with which could only be enforced by contempt proceedings, should not be made, as a party’s right to a fair and impartial trial might be prejudiced thereby.</p>

<p>Injunction — contract by vaudeville team for personal services — action to restrain members of team from performing for others than plaintiff — services not of such special character as to warrant issuance of temporary injunction—• clear legal right to permanent injunction not shown — contract to be construed against persons drawing it.</p> <p>In an action to restrain the defendants, a vaudeville team, from performing for any managers other than the plaintiff, and from performing in any other theatre or place of public amusement, or in any other company except that of the plaintiff, it appeared that the contract entered into between the plaintiff and the defendants consisted of a standard form of a run of the play contract of the Actors Equity Association, and an attached letter in which it was agreed that the defendants would perform at the Winter Garden or in concerts, and might be placed in vaudeville by the plaintiff at any time.</p> <p>Held, that the plaintiff was not entitled to an injunction pendente lite, for, at the time the contract was made, the defendants, as a vaudeville team, were practically unknown, and, by the terms of the contract, they were engaged as general utility men and not as vaudeville stars of the first magnitude, and it does not appear that their talents were unusual in any such degree as to make the loss of their services a matter of serious consequence to the plaintiff.</p> <p>Furthermore, the burden is on the plaintiff to establish that there was no default on its part in the performance of the contract, and as there is some doubt whether the contract had been performed by the plaintiff, it did not show a clear, legal right to the relief sought, and therefore, a preliminary injunction should not issue.</p> <p>If the contract is ambiguous or uncertain in its terms, it must be construed most strongly against the plaintiff, for it was drawn by its officers and representatives and the form adopted and the language used is of their selection.</p>

<p>Arbitration — proceedings to compel arbitration under agreement therefor —■ agreement not to prosecute for encroachment of building unless encroaching party built higher and then to arbitrate damages — agreement not revoked by death of party — agreement constituted covenant running with land — arbitration may be compelled under agreement.</p> <p>On an application to compel the appellant to proceed to arbitration pursuant to the terms of a contract agreement entered into by the appellant’s predecessor and the petitioners’ testatrix, it appeared that in order to avoid litigation between the appellant’s predecessor and the testatrix over an alleged encroachment of a building of the appellant’s predecessor upon the public highway, which the testatrix, owner of an adjoining building, claimed injured her property, an agreement was entered into whereby the appellant’s predecessor agreed that the testatrix should have the right to fully and freely use the light and air over its building as it then existed, for the benefit of her property for a period of fifty years, and she agreed for a like period not to institute proceedings based on the encroachment. It was further provided by the agreement that in case the appellant’s predecessor did build its building higher, then it would pay to the testatrix a sum of money as damages because of the encroachment, which sum was to be ascertained and determined by a board of arbitration to be selected as provided in the agreement. It was mutually covenanted and agreed that the agreement should be binding upon and accrue to the benefit of the parties thereto, their heirs, successors or assigns.</p> <p>Held, that said agreement was not personal to the testatrix but constituted a covenant running with the land, and that neither the cause of action abated nor was the agreement to select arbitrators revoked by her death, and that her representatives could enforce said agreement and compel arbitration thereunder.</p> <p>The agreement was valid and enforcible, for the rule is that a person may covenant that no right of action will accrue until a third person or persons shall determine the measure of the liability of the covenantor and the amount to which the covenantee shall be entitled.</p>

Appeal by the defendants, George M. Dunlop and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of December, 1921, removing an action pending in the Supreme Court in Rockland county to New York county, and consolidating the same with three other actions pending in the Supreme Court in New York county between the same parties.

<p>Appeal, by the defendants, John C. Clark and others, constituting the State Civil Service Commission of the State 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 3d day of December, 1921, directing that a peremptory writ of mandamus issue (after taking effect of Civil Practice Act), requiring the defendants, as the Civil Service Commission of the State of New York, to issue the usual and proper certificate pursuant to rule XVII of the Rules of the State Civil Service Commission, authorizing and approving the transfer of the petitioner, Daniel O’Connell, from the position of general clerk in the office of the clerk of the county of New York to the position of attendant upon the Supreme Court in the First Judicial District, and requiring said defendants, as such Commission, to do everything on their part to be done to bring about such transfer of the petitioner.</p>

Appeal by the defendant, Thos. Cusack 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 30th day of July, 1921, granting the plaintiff’s motion for a temporary injunction restraining the defendant during the pendency of this action from interfering with certain signs, advertisements and billboards.

<p>Appeal by the defendant, Walter G. Campbell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1921, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendants, Gilbert M. Anderson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of April, 1921, upon the verdict of a jury; also from said judgment as resettled and amended by an order of said court made at the New York Special Term and entered in said clerk’s office on the 20th day of May, 1921, and also from an order entered in said clerk’s office on the…

<p>Sales — action by seller after breach by buyer to recover money deposited with third person on purchase price of ship — implied promise of third person enforcible — sale made subject to general requisition by government — contract could not be repudiated because of misunderstanding by buyer of effect of requisition — tender made was sufficient — amount deposited constituted liquidated damages and not penalty — when distinction between liquidated damages and penalty not applicable — judicial notice that second-hand steamship during war had no regular market value.</p> <p>Where a buyer deposits with a third person a part of the purchase price of a ship under a contract which provides in effect that should any part of the purchase money not be paid as prescribed in the contract then the amount deposited shall belong to the seller as liquidated damages and not as a penalty, an implied promise on the part of the third person exists to make payment to the seller on the happening of the contingency, which promise the seller may enforce.</p> <p>In an action to recover money deposited with the defendants under a contract for the sale of a steamship it appeared that the seller warranted that the ship was free from liens and incumbrances except the general order of requisition made by the United States Shipping Board; that the contract, which was entered into on the 11th day of January, 1918, did not specify any date for delivery; that the buyer repudiated the contract on the twenty-fifth day of the same month; that at the time the contract was entered into the steamship was subject to the general order of requisition issued by the United States Shipping Board; that on the eleventh day of February the ship was tendered to the buyer by the plaintiff, together with all necessary papers to make a good tender, though before that time the buyer had repudiated the contract, and that no action was taken by the United States government except in pursuance of said general order of requisition.</p> <p>Held, that the buyer having made his contract subject to the general requisition by the United States Shipping Board, he will be presumed to know what that requisition was and, without any fraudulent statement on the part of the seller, the buyer cannot claim immunity from his liability on the ground that he did not understand what he was contracting for; that the seller tendered to the buyer the title he contracted to give to him and that the repudiation of the contract by the buyer was not justified.</p> <p>Where a part of the purchase price paid on a contract for' the sale of the ship is . deposited with a third person and it is provided in the contract that in ease of default on the part of the buyer to complete the contract said sum so deposited shall be considered as liquidated damages, the rule of distinction between - liquidated damages and penalty does not become applicable and, therefore, the plaintiff, on the repudiation of the contract by the buyer, was entitled to the amount deposited under the contract and was not confined to the actual damages suffered.</p> <p>However, if in such ease the rule governing liquidated damages and penalty be applied, the court will take judicial notice of the fact that a second-hand steamship during the war times of 1918 had no regular market value and, therefore, the stipulation that the sum so deposited should be liquidated damages and not a penalty is enforcible.</p>

Appeal by the defendant, Union Railway Company of New York City, from a judgment of the County Court of the county of Bronx in favor of the plaintiff, entered in the office of the clerk of said county on the 26th day of February, 1921, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of March, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Fidelity and Deposit Company of Maryland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of March, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of March, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry T. Cadenas, 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 March, 1921, upon the decision of a referee.

■ Appeal by the plaintiff, Sarah Morrison, 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 3d day of November, 1919, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, Victor Muller, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 18th day of October, 1921, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of October, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Sergius Apostoloff, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of January, 1922, compelling defendant to accept service of an amended complaint.

Appeal by the plaintiff, Celia Hallow, from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of February, 1922, denying plaintiff’s motion to set aside a certain stipulation between the parties and for the payment of arrearages in alimony.

Appeal by the defendant, United Dredging Company, 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 20th day of February, 1922, as grants leave to the plaintiff to serve an amended or supplemental complaint; also from an order of the Supreme Court made at the New York Special Term and entered in said clerk’s office on the 23d day of February, 1922, granting plaintiff leave…

Appeal by the defendant, John D. Lewis, 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 November, 1921, denying defendant’s motion for an order precluding plaintiff from giving evidence or in the alternative directing him to give a further bill of particulars.

Appeal by the defendants, Isser Reznik and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 14th day of February, 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 8th day of February, 1921, denying defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Clara Smith 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 21st day of November, 1921, denying a motion for an order directing that the complaint be dismissed for plaintiff’s unreasonable neglect to proceed in the action.

<p>Appeal by the defendants, Lucien Schmoll 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 1st day of December, 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 same day denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by Hannah Sullivan, as receiver of the estate of Timothy D. Sullivan, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of October, 1921, directing said receiver to pay dividends to the Metropolitan Bank, based upon the whole amount of its three separate claims.</p> <p>The nature of the receivership is not disclosed by the record; but the motion was made and heard on the assumption that the appellant was by an order duly made in this action appointed a substituted receiver of the property of Timothy D. Sullivan, deceased, and that two orders for the payment of dividends to duly proved creditors of the estate have been duly made herein, the first for ten per cent and the second for fifteen per cent upon the principal of the claims as proved. The decedent was the principal stockholder and a large creditor, for moneys loaned, of the C. J. Sullivan Advertising Company, which for brevity will be referred to as the Advertising Company. The Advertising Company was desirous of transacting business with the Metropolitan Bank and to have the bank discount negotiable paper for it and as security therefor the decedent, on the 1st of March, 1909, executed to the bank a formal guaranty by which he guaranteed, among other things, the payment at maturity of all bills, notes, checks or evidences of debt that might be discounted by the bank for the Advertising Company to the extent of not more than $100,000 at any one time, the guaranty to remain in force until the termination of business relations between the company and the bank and the payment of all indebtedness and obligations thereunder unless sooner terminated by mutual consent. On the 28th of July, 1913, the Advertising Company duly made its promissory note for $5,500 payable to its own order four months after date at the Metropolitan Bank and duly indorsed the note, which was also indorsed by three others, and was discounted by the bank. The note was not paid at maturity and the estate of Sullivan as further security therefor and for Sullivan’s liability on the guaranty, executed its note for like amount to the bank but it "failed to pay the same at maturity. The bank likewise discounted two other notes made by the Advertising Company to its own order, one for $1,000 on the 23d of August, 1913, and the other for $2,000 on the twenty-sixth of the same month. No part of either note was paid. On the 24th of May, 1918, the bank pursuant to the decedent’s guaranty duly filed with the receiver a verified claim for the face amounts of these notes. The notes for $1,000 and for $2,000 were not indorsed or secured otherwise than by said guaranty; but the note for $5,500 was indorsed by one Farrell and two other individuals and in or about the year 1920, after so proving its claim, the bank recovered a judgment against the indorsers for the full amount of the note with interest and costs and Farrell paid the amount thereof to the bank and took an assignment of the judgment. It does not appear when the orders for the payment of dividends were made; but the receiver in the month of April, 1921, notified the bank that she would pay a first dividend of ten per cent and a second dividend of fifteen per cent to the creditors and that the amount of the bank’s claim as filed with the receiver would be reduced to $3,000 for the reason that Farrell had satisfied its claim on the note for $5,500 and had become subrogated to its rights thereunder. The bank demanded payment of dividends on the aggregate amount of the three notes, and on the refusal of the receiver to comply therewith made the motion which resulted in the order from which this appeal was taken.</p>

Appeal by the plaintiff, Sanford Narrow Fabric Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1922, denying plaintiff’s motion to strike out paragraphs 3 and 4 of the defendant’s answer.

<p>Appeal by the petitioner, Thomas V. Devins, 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 petitioner’s motion for a peremptory writ of mandamus requiring the respondent to reinstate him as factory inspector in the Department of Labor of the State of New York or to transfer him to some other position with the same compensation as of July 1, 1921.</p> <p>The motion was made on the appellant’s affidavit, and was opposed by the affidavit of the respondent Sayer, the Industrial Commissioner. The affidavit of the appellant shows that on the 25th of October, 1918, after he had entered and passed a competitive civil service examination conducted by the Civil Service Commission of the State for the position of factory inspector in the Department of Labor, his name was duly certified by the Commission from the eligible list for appointment, and that he was duly appointed factory inspector at a salary of $1,320 per annum; that he accepted the appointment and entered upon the discharge of his duties that day and duly performed all duties assigned to him by his superiors in office; that his salary was increased to $1,500 per annum, and thereafter and on January 1, 1921, was again increased to $1,800 per annum; that under date of the 15th of June, 1921, he received a written notice from the respondent to the effect that a reduction in the number of employees of the department became necessary owing to a curtailment in the appropriation therefor; and that the respondent regretted that he had been compelled to abolish the position held by appellant and to terminate his services as of June 30, 1921; and that until that date he might consider himself on leave of absence with pay; that he was duly enrolled as a private in the United States Army on the 2d of May, 1898, and served therein during the war with Spain and was honorably discharged therefrom on the 20th of April, 1899; and that the respondent had due and timely notice thereof before so abolishing his position and terminating his services; that respondent continued in the service twelve factory inspectors who were appointed and entered the service subsequent to the appointment and entry therein of the appellant; and that he verily believes that the alleged curtailment in the appropriation assigned as the reason for abolishing the position is a subterfuge resorted to by the respondent to remove him from office; that he is entitled to the order applied for by virtue of the provisions of section 22 of the Civil Service Law (as amd. by Laws of 1910, chap. 264, and Laws of 1920, chap. 833) and section 22a of the Civil Service Law (as added by Laws of 1920, chap. 836); and that, by virtue of said statutory provisions and of the regulations of the Civil Service Commission promulgated pursuant to law, the action of the respondent in abolishing the position occupied and held by the appellant was unlawful and void; and that, therefore, he is entitled to reinstatement and to be assigned to duty as a factory inspector and to the emoluments of office as of July 1, 1921. The affidavit of the respondent shows that the appropriation for the Labor Department for the fiscal year commencing July 1, 1921, was $1,500,000, and that not more than $1,200,000 thereof could be used for personal services and salaries; that the appropriation for the preceding year was $2,400,000; and that during that year deficiency appropriations for the department were requested of the Legislature; that the abolition of the position held by the appellant was rendered necessary by the curtailment of the appropriation and in the interest of an efficient and economical administration of the department, for the reason that, in the opinion of the respondent, more factory inspectors were employed than were necessary; that the abolition of the position was not a subterfuge resorted to for the purpose of removing the appellant; that the appropriation having been reduced one-third, respondent in determining which positions should be abolished took into consideration merit, fitness and competency, and retained to fill the remaining positions of factory inspectors those who, in his judgment, were best fitted and qualified to render the most efficient service to the State; that the number of positions remains as so reduced; and that the work of the department is being satisfactorily conducted by those filling the remaining positions, and there did not exist and does not exist a vacancy or position in the department to which the relator could be transferred without dismissing another who was and is satisfactorily discharging the duties of the position; and that, as the responsible head of the department, respondent deemed it his duty to decline to dismiss a competent employee to make a position for the appellant; and that, as he understands the law, he is not required, in removing persons for reasons of economy, to make removals in the inverse order of appointments as provided in section 22a of the Civil Service Law, for the reason that those provisions have been superseded by section 18 of the Labor Law of 1921, as added by chapter 50 of the Laws of 1921, and as amended by chapter 642 of the laws of that year, which confer upon the respondent the right to make removals as the best interests of the service require; and that he certified the name of the appellant to the State Civil Service Commission as one whose position was abolished for reasons of economy as required by law.</p>

Appeal by the petitioner, Andrew P. Meehan, 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 petitioner’s motion for a peremptory writ of mandamus requiring the respondent to reinstate him as a factory inspector in the Department of Labor of the State of New York as of July 1, 1921.

Appeal by Florence P. Goepel and another from so much of a decree of the Surrogate’s Court of the county of-New York, entered in the office of said Surrogate’s Court on the 25th day of July, 1921, as resettled by a decree entered in said surrogate’s office on the 10th day of August, 1921, as surcharges their accounts with certain items.

Appeal by the defendant, The Connecticut Electric Manufacturing Company, 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 5th day of October, 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 21st day of October, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Henry Lustig, from a judgment of the Supreme Court in favor of John Naday, deceased, the original defendant, who died after the trial, entered in the office of the clerk of the county of New York on the 29th day of April, 1921, upon the verdict of a jury.

Appeal by the defendant, David Eisenberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of November, 1921, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, Greater Britain Insurance Corporation, Ltd., 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 November, 1921, granting plaintiff’s motion to strike out the answer herein, and for judgment pursuant to rule 113 of the Rules of Civil Practice, also from a judgment of the Supreme Court in favor of the plaintiff entered pursuant to said order in said…

Appeal by the defendant, Messmore Kendall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of June, 1921, upon the decision of the court, rendered after a trial at the New York Special Term, overruling defendant’s demurrer to the complaint.

<p>Appeal by the defendant, Messmore Kendall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of June, 1921, upon the decision of the court, rendered after a trial at the New York Special Term, overruling defendant’s demurrer to the complaint.</p>

<p>Attorney and client — court may not require county treasurer to pay allowance for expenses to counsel assigned for one held by magistrate on charge of murder in first degree but who has not been indicted — all money received by counsel under such order must be returned.</p> <p>An order of the Supreme Court directing a county treasurer to pay an allowance for expenses to an attorney -assigned as counsel for one held by a magistrate on a charge of murder in the first degree but before any indictment had been found was unauthorized; and, although the attorney may have incurred some expense in protecting the interests of his client, he must refund all that he received under the order with interest from the date he received it.</p>

Appeal by William J. Stynes, business agent of the defendant, 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 20th day of May, 1921, adjudging the appellant guilty of contempt of court and sentencing him to be imprisoned in the Erie county jail for thirty days.

<p>Appeal by the plaintiff, Waterloo Water Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 27th day of October, 1921, upon the decision of the court rendered after a trial at the Monroe Special Term, a jury having been waived.</p>

Appeal by the defendant, Cowles Shipyard Company, Inc., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on or about the 30th dajr of December, .1921, directing that the deposition of the defendant and its president, Benjamin L. Cowles, be taken before the service of the complaint, and that certain books and papers be produced by the defendant for inspection by the plaintiff.

<p>Executors and administrators — claim against estate of decedent for services rejected by executor — trial to be had on accounting — claimant has right to trial by jury in Surrogate’s Court of controverted questions of fact under Code of Civil Procedure, §§ 2536 and 2538.</p> <p>Under sections 2536 and 2538 of the Code of Civil Procedure, one having a claim against the estate of a decedent for services rendered under a contract, has a right to a jury trial in the Surrogate’s Court of the controverted questions of fact, if he seasonably demands the same, where the executor rejects the claim and offers to try the issues raised by the claim and its rejection upon the judicial settlement of the estate.</p>

Appeal by the defendant, Fannie Kelly, from a decree of the Surrogate’s Court of the county of Chautauqua in favor of the claimant, entered in the office of said Surrogate’s Court on the 13th day of October, 1921.

<p>Appeal by the heirs, administrators, executors or representatives of Henrietta Schieck, deceased, 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 23d day of September, 1921, denying their motion to vacate an ex parte order permitting the examination of certain portions of the body of said Henrietta Schieck.</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 Lewis on the 18th day of March, 1922, granting plaintiff’s motion to change the place of trial from the county of Lewis to the county of Oneida.

Appeal by the defendant, Grace G. Farmer, 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 5th day of January, 1922, denying her motion to change the place of trial from the county of Erie to the county of New York.

<p>Appeal by The Roman Catholic Orphan Asylum in the City of New York, from a decree of the Surrogate’s Court of the county of New York, entered in said surrogate’s office on the 14th day of June, 1921, sustaining the validity of the last will and testament of the testatrix and the first codicil thereto and construing the same and adjudging that she devised to the Sisters of Charity of St. Vincent de Paul remainders in fee in all of her real property, and directing that the sole surviving trustee under her will pay the cash balance remaining in his hands after certain deductions and assign a certain mortgage to the Sisters of Charity of St. Vincent de Paul.</p> <p>Appeal by Henry H. Bassford from such decree in so far as it adjudges that the Sisters of St. Vincent de Paul take the remainder of the real property of the testatrix.</p> <p>Separate appeals by Andrew S. Hamersley, special guardian for Marie Coyle and others, in the accounting proceeding, and by Louis A. Cuvillier, special guardian for Marie Coyle and others, in a proceeding for the construction of the will, from all of the provisions of said decree except those relating to costs and allowances, and except so much of the decree as overrules the exceptions on behalf of the Roman Catholic Orphan Asylum to the report of the referee.</p> <p>The testatrix, Sarah McGeehan, died May 17, 1876, leaving a last will and testament and two codicils thereto all of which were duly admitted to probate on the twenty-seventh day of October that year. The executrix and executor qualified, and after the death of the survivor of them and on February 20, 1884, Abraham Bassford and Edward H. Hanigan were appointed substituted trustees. Hanigan died October 27, 1892. The testatrix left three parcels of real estate known as No. 10 Avenue C, corner of Second street, 17 Avenue C, which were improved, and a vacant lot known as No. 1251 Washington avenue, and two leases of buildings both of which expired May 1, 1894, all of which came into the hands of the substituted trustees. On the 20th of March, 1919, a proceeding was instituted by Abraham Bassford, as sole surviving trustee under the last will and testament of Sarah McGeehan, to have the validity and effect of all disposition of real property made by her will and codicils thereto determined; and on the 21st of August, 1919, he filed an account of his trust from the commencement thereof and instituted a proceeding for the judicial settlement of his accounts. On the 9th of December, 1919, the two proceedings were consolidated and the issues arising therein were thereafter referred to a referee who made a report on the 27th of October, 1920, and a supplemental report on the fourteenth of December thereafter. The decree from which the appeals were taken was made on the motion for the confirmation of the reports. The will was duly executed on the 17th of February, 1869. The testatrix thereby, after directing the payment of her just debts and funeral expenses, bequeathed all of her personal property excepting leasehold property to her sister, Ellen Gallagher, and also gave, devised and bequeathed to her the premises known as No. 336 Stanton street, city of New York. By the 3d clause of the will she gave, devised and bequeathed to her sister all the rest, residue and remainder of her real estate and all of her leasehold estate to have and to hold the same during the term of her natural life.</p> <p>The 4th clause is as follows:</p> <p>“ Fourthly. After the decease of my said sister, Ellen Gallagher, then I give, devise and bequeath all the income, rents, issues and profits accruing or arising from both the Real Estate and the Leasehold property aforesaid (after paying the interest on Mortgages the taxes and assessments which may be imposed on the said Real Estate and Leasehold property and the expenses of keeping the same in repair) to my Nephews Edward Hannegan, James Hannegan, Bernard Hannegan and my Niece Sarah Ellen Bassford, all children of my deceased brother Bernard Hannegan and John Hannegan, a son of my deceased brother Dennis Hannegan, to be divided among them share and share alike for and during the term of the natural life of each of them.”</p> <p>The testatrix by the 5th clause attempted to dispose of the remainders after the life estate of her sister and the life estates of her niece and four nephews. The first paragraph of that clause is as follows:</p> <p>“ Fifthly. After the decease of my Nephews and Niece aforesaid then all my Real Estate and leasehold property shall be distributed in the following manner, viz: ”</p> <p>Following the provisions quoted, the clause contained five paragraphs numbered 1 to 5 inclusive. The first of these is as follows:</p> <p>“ 1. After the decease of the first of my Nephews or Niece aforesaid I give, devise, and bequeath the equal undivided one fifth part of all my Real Estate and Leasehold property aforesaid to the ‘ St. Josephs Home for Aged Females ’ under the charge of the Sisters of Charity of St. Vincent de Paul and situated in the City of New York to have to hold the same for the benefit and use of the said Institution forever.”</p> <p>The others are in the same form and each gives, devises and bequeaths an equal undivided one-fifth part of her real estate and leasehold property after the death of the second, third, fourth and fifth life beneficiaries. The undivided fifth after the fourth death is given to the devisee named in the 1st subdivision. The undivided fifth after the second death is given to St. Vincent’s Hospital, which it is recited in the will is under the charge of the Sisters of Charity but it is not stated whether she means the same Sisters of Charity mentioned in the 1st subdivision; and the undivided fifths devised after the third and fourth deaths are to the appellant, the Roman Catholic Orphan Asylum, “ to have and to hold the same for the use and benefit of the said institution forever.” The 6th clause of the will is as follows:</p> <p>“ Sixthly. After the decease of my beloved Sister Ellen Gallagher I hereby order and direct my Executor hereinafter named to collect all the rents, issues and profits accruing or arising from the aforesaid Real Estate and Leasehold property and after paying and deducting the usual commissions allowed for collecting the same the interest on the Mortgages, the Taxes and assessments which may be imposed upon the said Estate and the expenses of keeping the same in good repair then to pay over the balance of the moneys so arising as aforesaid to my Nephews and Niece aforesaid or in case of the death of any of the said nephews or niece then to the Institutions above named in the order in which they are respectively named in this my Will equally share and share alike at least once in each and every year or oftener if my said Executor may see fit or deem proper. If the executor hereinafter named should die or become incapacitated to act as Executor before the several Institutions above named become wholly vested in the fee of the aforesaid Real Estate and Leasehold property then I authorize and direct my Nephews and niece aforesaid or a majority of them to select some suitable and proper person to take charge of the aforesaid Real Estate and Leasehold property in the same manner as the Executor hereinafter named is authorized and directed by this my last Will and Testament.”</p> <p>These are the only provisions of the will with the exception of the last paragraph, by which the testatrix appointed her sister and one Attridge her executrix and executor. The first codicil, being the only one in question, is undated, and there is no evidence as to when it was executed excepting that it is to be inferred that it was executed between February 17, 1869, the date of the will, and November 16, 1875, which is the date of the second codicil. The material provisions thereof are as follows:</p> <p>First Codicil</p> <p>“ Whereas, I Mrs. Sarah McGeehan of the City, County and State of New York, have made my last will and testament in writing, bearing date the Seventeenth day of February in the year of our Lord one thousand & eight hundred and sixty-nine in and by which I have bequeathed to my Nephews Edward H. Bernard and James J. Hannegan and my niece Sarah Ellen, wife of Abram Bassford, also my nephew John S. Hannegan each one-fifth equal undivided part of amount rents coming from my property, after paying expenses accruing from debts or repairs on same, for their use during their life, after the death of Mrs. Ellen Gallagher,</p> <p>“ Now, therefore, I do, by this writing, which I hereby declare to be a codicil to my last will and testament, and to be taken as a part thereof, order and declare that my will is, that my sister Mrs. Ellen Gallagher has the sole right to all the rents arising from property during the natural term of her life,</p> <p>“ After her death the property owned by me on the South East corner of Ave C. and Second St. the rents therefrom after debts, expenses in way of repairs are paid, to be applied to the use of my nephew Bernard Hanigan, during his life.</p> <p>“ And to my nephews Edward H., James J. — and John S. Hanigan, and my niece Sarah Ellen, wife of Abram Bassford, each one-fourth part amount of rents after debts, and expenses in way repairs, are paid of the remaining part of my property, for their use during their lives, after their deaths, I give, bequeath and devise to ‘ The Sisters of Charity of the St. Vincent de Paul/ a Corporation duly incorporated under and pursuant to the laws of the State of New York, for the benefit of the Institution under their charge known as ‘ St. Joseph’s Home ’ for Aged Females, in fifteenth street in the city of New York.”</p> <p>The referee reported that the provisions of the codicil and of the will disposing of the remainder are invalid and that with respect thereto the testatrix died intestate; that the provisions of the will giving her sister a life estate in the remainder are valid, and that the provisions of the codicil giving a life estate in the premises at the southeast corner of Avenue C and Second street to her nephew Bernard Hanigan are valid; but that the provisions of the codicil by which she attempted to create life estates in the rest of the remainder for the benefit of her other three nephews and her niece are void as creating an unlawful suspension of the power of alienation. The referee also reported in favor of the distribution of the income of the realty in the hands of the trustee among the heirs of the testatrix, specifying the proportion thereof which the respective heirs are entitled to receive.</p> <p>The surrogate refused to confirm the reports of the referee and sustained all of the provisions of the will and codicil, and held that the Sisters of Charity of St. Vincent de Paul take the remainder under the codicil for the benefit of the institution under its charge known as St. Joseph’s Home for Aged Females. (See 115 Mise. Rep. 737.)</p>

<p>Guaranty — action against representatives of deceased guarantor on . guaranties of payment for goods sold by plaintiff to third person but delivered after death of guarantor — three causes of action insufficiently pleaded under terms of guaranties — fourth cause of action sufficiently pleaded •— executors and administrators —• modifications of sale contracts binding on legal representatives of guarantor.</p> <p>In an action against the personal representatives of a deceased guarantor on guaranties of payment for goods sold by the plaintiff to a third person but delivered after the death of the guarantor, which guaranties were conditional upon the plaintiff’s complying with certain terms, an examination of the complaint showed that the first three causes of action were insufficiently pleaded as there were omissions of allegations of due performance on the part of the plaintiff or of excuses for non-performance, but the fourth cause of action, giving the complaint the interpretation most favorable to the plaintiff, was sufficiently pleaded.</p> <p>It seems, that if enforcible agreements of purchase and sale were made between the plaintiff and the third person, then any modifications subsequently made between the parties, within the limits allowed by the guaranties, would be binding on the guarantor’s legal representatives.</p>

Appeal by the defendant, Hettrick Brothers Company, from a final 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 31st day of January, 1921, upon the report of a referee appointed to take and state an account.

Appeal by the defendants, Edward J. Volz 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 30th day of July, 1921, restraining them pendente lite from declaring a strike in plaintiff’s shop; from causing plaintiff’s employees to quit and from contriving or conspiring by any scheme or device to fix prices at which the plaintiff shall sell or dispose of photo engravings.

Appeal by the plaintiff, Henry Mandel, 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 15th day of July, 1921, as grants defendants’ motion for judgment on the pleadings and for judgment dismissing the amended and supplemental complaint.

<p>Corporations — action to compel defendant corporation to issue stock to which plaintiffs’ assignor was at one time entitled to subscribe — complaint should have been dismissed — assignor living abroad — stock sold to third person after expiration of time within which assignor could exercise her rights — complaint drawn on theory that defendant had agreed to hold stock until return of assignment of rights by assignor — no proof of such assignment — assignor was alien enemy at all times mentioned in complaint and assignment was void under Trading with Enemy Act—recovery cannot be had on theory that defendant owed duty to notify Alien Property Custodian before disposing of stock — defendant had no knowledge that assignor was enemy alien and had made all inquiries that could be required — such issue outside pleadings — finding that defendant owed such duty not justified in any event — assignor, by delay, waived rights to subscribe — defendant complied strictly with statute.</p> <p>In an action to compel the defendant corporation to issue certain shares of increased capital stock for which plaintiffs’ assignor, a stockholder, was at one time entitled to subscribe, which right she had assigned to plaintiffs, the complaint should have been dismissed, where it appeared that the assignor was living abroad and failed to exercise her rights in time and the defendant sold the shares to a third person in good faith and in full compliance with the Stock Corporation Law; that the complaint was predicated on the theory that defendant had agreed with the assignor’s agent to hold the stock subject to the return of the assignment to him of her rights in the increased capital stock which was to be executed by her in Holland, but no proof was given of such agreement; and that the assignor was, during all the times mentioned in the complaint, an alien enemy; for there was a failure to prove the essential allegation of the complaint, and, moreover, the transfer of the subscription warrant by plaintiffs’ assignor was absolutely void under the act of Congress of October 6, 1917, known as the Trading with the Enemy Act.</p> <p>A recovery allowed by the trial court upon the theory that the defendant owed a duty to notify the Alien Property Custodian of the subscription rights of the assignor before disposing of the stock cannot stand, as the undisputed evidence shows that the defendant had no knowledge at the time of disposing of the stock that the assignor was an enemy alien; and, had there been a duty of inquiry, the defendant did all that could be required. Furthermore, no such issue was tendered by the pleadings; and, if there had been such an issue, the theory adopted by the trial court would have no legal justification, for the assignor failing to exercise her rights in time must be deemed to have waived them and the defendant complied strictly with the statutory requirements throughout the entire transaction.</p> <p>Merrell, J., dissents.</p>

<p>Negligence — proximate cause — action to recover for death of employee in dye factory, killed when building burned — fire caused by ladder in use by employee of defendant, an outside contractor, falling and breaking bottle of bisulphite of soda standing on kegs of chlorate of soda — negligence of defendant’s employee and proximate cause of fire questions for jury — wrongdoer only responsible for natural and proximate consequences of his misconduct.</p> <p>In an action to recover for the death of an employee in a dye factory, it appeared that a ladder in use by an employee of the defendant, an outside contractor, who was installing some electrical fixtures in the dye factory, fell on a bottle of bisulphite of soda which was standing on some kegs of chlorate of soda, breaking the bottle, the contents of which spilled over the kegs and floor; that a fire which broke out shortly in the vicinity of the kegs, destroyed the building and caused the death of the deceased. The kegs were not tight enough to exclude a liquid. The mixture of the bisulphite and chlorate was a competent producing cause of the Are, but the dye manufacturing company had never mixed the two chemicals and its manufacturing superintendent who had general charge of the supplies was not aware before the day of the fire that, if the bisulphite came in contact with the chlorate, a fire might result.</p> <p>Held, that it was a question of fact for the jury to decide whether the fall of the ladder was due to the negligence of defendant’s servant in the course of his employment, and, if so, whether the negligent act was the proximate cause of the fire which resulted in the death of the deceased.</p> <p>It seems, that in some cases the rule, that one is only liable for such damages as could be reasonably foreseen or contemplated, has been loosely applied. The best statement of the rule is that a wrongdoer is responsible for the natural and proximate consequences of his misconduct; and what are such consequences must generally be left for the determination of the jury.</p>

<p>Appeal by Gerseta 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 7th day of February, 1922, granting petitioner’s motion that the defendant be directed “ to proceed forthwith with an arbitration before the Committee on Arbitration of the Silk Association of America pursuant to the by-laws, rules and regulations of said Association applicable thereto, of the differences arising under the contract ” between the parties.</p>

<p>Appeal by the defendant, Interborough Rapid Transit 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 24th day of January, 1922, granting plaintiff’s motion to vacate and set aside the notice of taking the testimony of the officers and directors of the plaintiff in behalf of the defendant; and that the defendant’s answer herein be stricken out; and that judgment be directed to be entered thereon by the clerk, pursuant to rule 113 of the Rules of Civil Practice, in favor of the plaintiff and against defendant for the relief demanded in the complaint.</p>

Appeal by the defendant, James A. Carey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of May, 1921, upon the decision of the court rendered after a trial at the New York Special Term. Appeal by the plaintiff, Harold P. Farrington, from so much of said judgment as dismisses the complaint herein as against certain defendants.

Appeal by the plaintiff, Marie L. Shea, 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 29th day of July, 1921, setting aside the verdict of a jury for $12,500 in favor of the plaintiff and granting a new trial.

<p>Landlord and tenant — Rent Laws of 1920 — tenant of apartment house in New York city who took possession after October 1, 1920, not within purview of Rent Laws of 1920 — statute limited to emergency arising from fact that those in possession were required to pay exorbitant rents or vacate — those in possession of dwelling place in New York city prior to September Housing Laws of 1920 preferred class •— constitutional law — public control of private property limited to necessity of occasion— exercise of police power function of Legislature, but whether subject-matter is within police power is judicial question.</p> <p>A tenant of an apartment in New York city, who entered into possession about October 15, 1920, under a lease dated October 6, 1920, for a term commencing October 15, 1920, is not within the purview of chapters 136 and 944 of the Laws of 1920, known as the Emergency Rent Laws, as that legislation was limited to the immediate emergency which arose from the fact that, by reason of the inadequacy of the housing facilities, those in possession were required to pay exorbitant rents under threat of dispossession.</p> <p>The intent of the Legislature was to make a preferred class of those tenants who were in possession of dwellings, apartments or tenement houses in New York city prior to September 27,1920, when the September Housing Laws of 1920 took effect, and to permit them to remain in possession until November 1, 1922, so long as they paid a reasonable rent to be ascertained as prescribed in the statute.</p> <p>In time of calamity or overruling necessity, temporary interference or an actual appropriation of private property may be necessary and justified by the emergency. Such interference, however, must be limited to that which is necessary to the occasion.</p> <p>When a subject-matter is within the police power of the State, its regulation is within the power of the Legislature; but whether the subject-matter is within the police power is a judicial question to be determined by the courts.</p>

The motions were heard upon affidavits of Mrs. Friberg’s two lawyers, Messrs. Byrne and Wechsler, against which was an affidavit by Mr. Johnson for the landlord, accompanied by the minutes of the court proceedings when the defendants suffered default.

Appeal by the defendant, The Waverly, Sayre and Athens Traction 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 21st day of October, 1920, upon the verdict of a jury for $1,250, 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 plaintiff from a judgment of the Supreme Court, entered in the New York county clerk’s office June 29, 1921, upon the verdict of a jury in favor of defendant Joseph G. Mayer, and upon an order dismissing the plaintiff’s complaint as against the defendant Milly Frank Mayer at the close of the entire case.</p> <p>Judgment affirmed, with costs. No opinion. Present — Clarke, P. J., Laughlin, Smith, Merrell and Greenbaum, JJ.; Smith and Greenbaum, JJ., dissenting.</p>

Appeal by the defendant from a judgment of the Supreme Court, entered in the New York county clerk’s office April 28, 1921, upon the verdict of a jury, and also from an order entered May 6, 1921, denying a motion for a new trial. Judgment and order affirmed, with costs. No opinion. Present — Clarke, P. J., Laughlin, Smith, Merrell and Greenbaum, JJ.; Merrell, J., dissenting.

<p>Appeal from an order of the Surrogate’s Court of Monroe county, entered on September 6, 1921.</p>

Appeal by plaintiff from parts of a judgment of the Supreme Court, entered in the New York county clerk’s office on January 30, 1920, confirming the report of a referee in an action upon a partnership accounting.

<p>Motor vehicles — statutory action for death caused by defendant’s automobile —• whether chauffeur engaged in master’s business at time of accident — judgment for plaintiff affirmed.</p>

<p>Motor vehicles — action for injuries received when struck by defendant’s automobile —• whether chauffeur engaged in master’s business at time of accident—judgment for plaintiff affirmed.</p>

<p>Appeal by The Silk Association of America from an order of the Supreme Court, entered in the New York county clerk’s office on December 13, 1921, directing a peremptory mandamus order to the appellant to reinstate in membership the Gerseta Corporation.</p> <p>Order reversed, with ten dollars costs and disbursements, and motion denied, with fifty dollars costs. No opinion. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.; Smith and Greenbaum, JJ., concurring in reversal and voting for issuance of an alternative order.</p>

Judgment reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff file a stipulation to reduce the verdict to the sum of $12,000, and to modify the judgment accordingly. If such stipulation be so filed the judgment as so modified is affirmed, without costs. Jaycox, Kelby and Young, JJ., concur; Blackmar, P. J., dissents, with a memorandum, in which Manning, J., concurs.