Volume 201 — New York Appellate Division Reports

<p>Trusts — trustee surcharged with amount negligently invested — appeal to Court of Appeals without stay of enforcement of judgment — beneficiary entitled to accrued income on amount surcharged — fact that trustee gave security for liability to trust estate does not excuse him. from paying accrued income — trustee should be allowed commissions on amount paid over.</p> <p>The beneficiary under a trust is entitled to have the accrued income paid to her on an amount which the Appellate Division has surcharged to the account of the trustee, although an appeal is pending in the Court of Appeals from the decision of the Appellate Division, where no order was made staying the enforcement of the judgment pending the appeal to the Court of Appeals.</p> <p>The fact that the trustee has given security enough to satisfy any liability he may be under to the trust estate, does not excuse him from paying over the amount due to the beneficiary under the judgment of the court, so long as there was no order providing for a stay of the enforcement of that judgment pending such appeal.</p> <p>The liability to pay the accrued income to the beneficiary followed as a matter of law when the account of the trustee was surcharged with the amount of money negligently invested, and it was not necessary to procure an order directing the trustee to pay over said accrued income.</p> <p>The trustee is entitled to a credit to him for the commissions to which he would be entitled upon the payment over of the accrued income.</p>

<p>Sales — action against seller to'recover for breach of contract — agreement to sell at price to be agreed on, not more than maximum stated, is option enforcible by buyer — agreement in same contract to pay for other goods at fixed price is consideration for option — contract not indefinite because maximum price was to be determined by price charged by another, where complaint alleged said price to be easily ascertainable and defendant demurred.</p> <p>An option enforcible by a buyer arises under a contract for the sale of goods which fixes the price of goods to be delivered for a certain period and then provides that for the balance of the period the price shall be agreed upon by and between the parties, but that in no event shall the price be higher than the contract price for the saíne goods charged by another corporation to large consumers.</p> <p>As soon as the buyer agreed to pay the maximum price provided in the contract, he made definite the sale price of the goods and the contract was no longer indefinite as to the price to be paid.</p> <p>The agreement of the buyer to pay for the goods as to which the price was definitely fixed in the contract, was a sufficient consideration for the option given to the buyer to take the balance of the contract at a price to be made definite by him by agreeing to pay the maximum price therefor.</p> <p>Since it is alleged in the complaint that the maximum price was not to be higher than that charged by another corporation for similar goods sold to large consumers, and that the price charged by said other corporation was easily ascertainable, it cannot be held, upon a demurrer to the complaint, that the cóntraet was indefinite on the ground that the maximum price was to be determined by the selling price of another, for the defendant by his demurrer has admitted that said price is easily ascertainable and a contract is certain which may be made certain by reference to other facts which are established or may be made certain. Dowling and Merrell, JJ., dissent.</p>

Appeal by the defendants, New York Evening Post, 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 23d day of February, 1922, denying defendants’ motion to compel plaintiff to severally state and number the causes of action set forth in the amended complaint so that each publication therein mentioned shall constitute a separate cause of action.

<p>Landlord and tenant — covenant in lease providing for immediate payment of all rent reserved for balance of term and resumption of possession by landlord, in case, among other things, tenant should vacate or violate any covenant in lease provides for penalty and is unenforcible — recovery of one month’s rent actually due not allowed where plaintiff's attorney refused to treat case as action for same — when amount fixed as liquidated damages will be treated as penalty — intent of parties governs.</p> <p>A covenant in a lease providing for immediate payment of all the rent reserved in the lease for the balance of the term, together with certain other charges and resumption of possession by the landlord, with no obligation upon him to relet and account to the tenant for rent obtained thereby, in case, among other things, the tenant should vacate the premises or violate any covenant in the lease, some of which are most trivial, involving either no damage whatever or a nominal amount, provides for a penalty and is unenforcible.</p> <p>In an action to enforce such covenant, even one month’s rent which is actually due may not be recovered where plaintiff's attorney declines to press the case as an .action for the same at the trial.</p> <p>Where a contract contains a number of covenants of different degrees of importance ' and the loss resulting from the breach of some of them will be clearly disproportionate to the sum sought to be fixed as liquidated damages, especially where the loss in some cases is readily ascertainable, such sum will be treated as a penalty.</p> <p>Whether a sum is to be treated as liquidated damages or as a penalty depends upon the intent of the parties to a contract as disclosed by the situation and by the terms of the instrument.</p>

<p>Appeal by the defendant, S. Silberstein & Sons, Inc., from a determination and order of the Appellate Term of the Supreme Court, First Judicial Department, entered in the office of the clerk of the county of New York on the 17th day of May, 1921, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Third District, in favor of the plaintiffs.</p>

Appeal by the plaintiff, Celia Rosenthal, 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 13 th day of January, 1922, denying the plaintiff’s motion to punish the defendant for contempt of court for refusing to pay the sum of $200 as and for alimony.

Appeal by the defendants, Edmund Randolph 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 9th day of January, 1922, denying.the defendants’ motion for an interpleader.

Appeal by the plaintiffs, New York Pneumatic Service Company and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of June, 1921, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal . by the plaintiff, John Bering, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, .1922, granting the motion of the defendant United States Trust Company of New York that a supplemental summons be issued and served by publication, and that the complaint be amended.

Appeal by the plaintiff, Mary O. Silkman, from an order and determination of the Appellate Term of the Supreme Court, First Judicial Department, entered in the office of the clerk of the county of New York on the 25th day of January, 1922, affirming an order of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, vacating and setting aside a final order and warrant of dispossess and dismissing the petition of the landlord.

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

Appeal by the defendant, National Surety Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of May, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the defendants Joseph M. Schenck and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of June, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the defendant, Bertha Shkilky, from a judgment of the Municipal Term of the Court of Special Sessions of the City of New York, Part 2, Borough of Brooklyn, rendered on the 20th day of November, 1919, convicting her of having violated sections 120-122 of the Tenement House Law.

<p>Wills — construction — absolute gift to sister followed by provision that executor hold share in trust for her maintenance — trust not for definite time and no disposition of remainder — death of sister before testator — share of sister goes to her next of kin — gift of income, without limitation as to time and no disposition over, carried corpus — under Decedent Estate Law, § 29, legacy did not lapse.</p> <p>The next of Mn of a legatee, a sister of the testator who died before the testator, are entitled to take the share bequeathed to the sister under a provision in the will which provides as follows:</p> <p>“ Third. The balance of my residue to be divided equally between my sister Emily Knickerbocker and Alice Robinson my niece.</p> <p>“ My sisters share Emily Knickerbocker to be held in trust by my executor, he to use the interest and if necessary the principal for her maintenance.”</p> <p>The 1st paragraph of the quoted provision is an absolute gift of one-half of the estate to the sister, and while it is modified by the sentence following, which carved out an estate for life and gave it to the executor in trust to use the income and, if necessary, the principal for her maintenance, this did not destroy the preceding gift and, when the death of the sister in the lifetime of the testator nullified the life estate, the gift of the principal remained and passed to her next of kin under the statute.</p> <p>But even though it be said that a gift of income only was attempted, such a gift when made for no specified period of time, as in the instant case, and with no conflicting disposition of the fund, would carry the corpus as well as the income to the legatee.</p> <p>Under section 29 of the Decedent Estate Law, the death of the sister, leaving descendants surviving, did not cause the legacy to her to lapse, but the legacy vested in the surviving descendants of the legatee as though such legatee had survived the testator and had died intestate.</p>

<p>Crimes — grand larceny, second degree — conversion of money by attorney — guilt not established beyond reasonable doubt — new trial granted in interests of justice.</p> <p>On a prosecution for grand larceny in the second degree against an attorney based on his failure to return to the owner certain money intrusted to his care for investment, the guilt of the defendant was not established beyond a reasonable doubt and so the judgment of conviction is reversed and a new trial granted in the interests of justice.</p>

<p>Trial — action to determine claim to real property — order directing issues of res judicata and possession to be tried separately — trial of issue of res judicata alone waives right to separate trial of issue of possession — issue of possession ought not to be tried separately.</p> <p>Where, in an action to determine a claim to real property, an order is made directing the trial of the issues of res judicata and possession before the trial of the other issues, but only the issue of res judicata is tried under said order, and on appeal from the judgment in favor of the defendant dismissing the complaint upon the merits the judgment is reversed and it is directed that the case shall stand for trial upon the pleadings, the defendant is not entitled to a separate trial of the issue of possession, for by failing to move the trial of that issue at the time of the trial of the issue of res judicata, he will be deemed to have waived his right to a separate trial thereof.</p> <p>Furthermore, it seems, that the issue of possession should not be tried separately, for if the plaintiff claims a constructive possession the trial of the issue of title is involved in that of possession, and so a separate trial of that issue might involve the main issue of title.</p> <p>Jaycox, J., dissents.</p>

Appeal by the defendant, International Milk Products Company, from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of St. Lawrence on the 29th day of November, 1921, directing judgment on the pleadings, consisting of a complaint and an amended answer thereto, in favor of the plaintiff, and appointing a referee to compute the amount of damages due the plaintiff, with notice of an intention to bring up for…

Appeal by the defendants, John J. McGuire and another, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 11th day of June, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the defendant, Pennsylvania Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 17th day of August, 1921, 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 the defendant’s motion to set aside the verdict and for a new trial made upon the minutes.

<p>Appeal by the plaintiff, James J. Sheehan, 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 14th day of December, 1921, upon the verdict of a jury for $235, 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.</p>

<p>Bills and notes — action by executor of payee to recover on note — defense that note, which was given at time land was deeded to maker, was to be of no force in case payee predeceased maker — mortgage given at same time under same condition — res judicata — judgment in present action would be res judicata in action to foreclose mortgage — witnesses — attorney who held mortgage on same land executed by maker of note subsequent to death of payee incompetent under Code of Civil Procedure, § 829, to testify to transaction between payee and maker — test for determining whether witness “ interested in the event.”</p> <p>A judgment in an action by an executor of the payee of a promissory note given at the same time that the payee deeded land to the maker, in which the defense interposed is that the note was not to be of any force or validity unless the payee survived the maker, would be res judicata in an action to foreclose a mortgage on the land given by the maker of the note at the same time and as a part of the same' transaction in which the note was given.</p> <p>Accordingly, in an action on said promissory note, the attorney who performed the services for the payee and the maker at the time of the execution of the deed and the giving of the note and mortgage, and who subsequently to the death of the payee took a mortgage on the same land executed by the maker of the note is incompetent, under section 829 of the Code of Civil Procedure, to testify as to the transaction between the maker and the payee at the time the note was executed, for he is an interested person in that if the mortgage given by the maker of the note to the payee were held to be of no force, then the security of the mortgage given to the witness would be materially increased.</p> <p>The test for determining whether a person is “ interested in the event ” and is “ a witness in his own behalf or interest ” within the meaning of section 829 of the Code of Civil Procedure, is not merely that he may gain or lose by the effect of the judgment in the action in which he is testifying, but that the judgment in that action will be legal evidence for or against him in some other action.</p>

<p>Appeal by the Erie Railroad Company from an order of the Public Service Commission of the State of New York, made and filed in the office of said Commission on the 1st day of September, 1921, directing that a grade crossing be discontinued and an overhead crossing constructed, and also from an order of said Commission made and filed in the office of said Commission on the 27th day of October, 1921, denying appellant’s application for a rehearing in said matter.</p>

Appeal by the defendants, Baker-Weiss Packing Box Company and another, from a decision and award of the State Industrial Commission, dated the 7th day of September, 1920, and from a decision and award of the State Industrial Board, dated the 9th day of May, 1921.

Appeal by George S. Buck and others from a peremptory mandamus order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Albany on the 3d day of February, 1922, commanding said appellants to pay and transfer to the State Treasurer moneys belonging to the Public School Teachers’ Retirement Fund of the City of Buffalo.

Appeal by the defendant, Sam Mignano, from a judgment of the County Court of the county of Ulster, rendered on the 28th day of November, 1921, convicting him of the crime of manslaughter in the first degree, and also from an order made on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Williams Oven Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 7th day of July, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of June, 1920, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, New Jersey Fidelity and Plate Glass Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 29th day of November, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of November, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by Viola Howard from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of March, 1922, directing that she be punished for contempt, with notice of intention to bring, up for review an order entered in said clerk’s office on the 24th day of October, 1921, directing a reference herein,

<p>Pleadings — action to recover commissions on sale of coal — permission will not be granted to serve supplemental complaint to cover commissions earned after commencement of action and for breach of contract occurring thereafter.</p> <p>In an action to recover commissions alleged to have been earned on the sale of coal for the defendant, it was improper for the court to permit the plaintiff to serve a supplemental complaint to include commissions alleged to have been earned on the sale of coal which was paid for after the action was commenced and for a breach of contract which occurred thereafter, for, as to those claims, the judgment in the present action would not preclude the plaintiff from maintaining an action to recover thereon.</p>

Appeal by the defendant, Frank Jay Gould, 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 December, 1921, directing the defendant to pay to the plaintiff counsel fees for the purpose of prosecuting an appeal from a judgment dismissing the complaint herein.

<p>Deeds — setback agreement executed in 1846 requiring buildings to be setback eight feet from street line — subsequent change of street from residential to business — setback agreement will not be enforced in equity — relief at law only — plaintiff having violated agreement cannot claim equitable relief.</p> <p>A setback agreement, executed in 1846 by the owners of certain lots situated on the north side of Thirtieth street between Broadway and Fifth avenue in New York city, requiring buildings to be set back eight feet from the street line, in which the intention was not primarily to fix the building line but to add to the attractiveness of the premises for residential purposes, will not be enforced in equity after the neighborhood has so changed that the street upon which the property is situated is mainly devoted to business purposes rather than to residences, but the plaintiff will be left to its action at law to recover damages for any injuries which it may have sustained.</p> <p>Furthermore, the plaintiff, having itself violated the restrictive covenant by erecting a show window on the front of its building which extends into the restrictive area for a space of three feet, is not in a position to claim relief against the defendant in a court of equity.</p>

<p>Appeal by Adam Kessel, Jr., 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 31st day of March, 1922, as directs a substituted referee to proceed under the original order of reference as if he had been originally-designated as referee therein.</p>

<p>Parties — action by executors to recover from trustee corporate dividends represented by corporate stock alleged to be part of estate of testatrix who was beneficiary — trustee compelled to deliver stock to remainder-man in prior action by it against remainderman commenced after death of testatrix — remainderman not necessary but proper party defendant in this action.</p> <p>The plaintiffs’ testatrix was the beneficiary of a trust composed in part of corporate stock. The stock in question was preferred and carried cumulative dividends. The dividends thereon were not paid for several years and on a reorganization the owners were allowed to take stock in the new company, but the trustee failed to take advantage of that offer and after the death of the testatrix it brought an action against the remainderman in which it was compelled by the judgment to turn over the stock in the original corporation to the remainderman and she had the stock exchanged for stock in the new corporation. In an action by the executors against the trustee to recover the accumulated dividends on said original stock claimed to be represented in part by the stock in the new corporation which was received by the remainderman, held, that the remainderman was not a necessary party to the present action, for any judgment in this action could not in any way affect her or take away from her the stock to which she became entitled by virtue of the judgment in the former action.</p> <p>However, while said remainderman is not a necessary party, it is clear that an equitable adjustment of the rights of all of the parties requires her presence as a proper party defendant in this action, so that the trustee will have the right to protect itself against payment to the estate of the life beneficiary of securities already delivered to the remainderman, by an affirmative claim on its part that the judgment in the action which it brought against the remainderman be set aside and that the remainderman be required to pay over to the trustee any part of the stock of the original corporation or the substituted stock in the reorganized corporation for which the defendant may be held liable in this action.</p>

Appeal by the plaintiff, Security Trust Company of Rochester, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe, on the 12th day of November, 1921, sustaining the demurrer of certain defendants to plaintiff’s complaint, heard as a contested motion.

Submission of a controversy upon an agreed statement of facts pursuant to the provisions of section 546 of the Civil Practice Act. Under date of February 21, 1918, the plaintiff conveyed to the defendant trust company certain premises situated in the borough of Manhattan, New York, upon certain trusts.

Appeal by the defendant, Julius Blum, 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 June, 1920, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of June, 1920, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Anderson, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Warren on the 10th day of November, 1921, denying defendant’s motion for judgment on the pleadings, consisting of an amended complaint and an answer thereto; also from an order of the Supreme Court, made at the Schenectady Special Term and entered in said clerk’s office on the same day, denying defendant’s…

Appeal by the defendant, Guillaume It. McKeage, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 12th day of December, 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 plaintiffs, Helen Thoma Lewis and another, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 1st day of October, 1921, requiring the plaintiffs to reply to new matter set up in the answer as a defense and denying plaintiffs’ motion for judgment on the pleadings, consisting of a complaint and answer.

Certiorari issued out of the Supreme Court (after taking effect of the Civil Practice Act) * and attested on the 10th day of December, 1920, directed to Walter W. Law, Jr., and others, as and constituting the State Tax Commission of the State of New York, commanding them to certify and return to the clerk of the county of Albany all and singular their proceedings had in assessing an additional franchise tax against the relator under article 9-A of the Tax Law, for the period…

Appeal by the defendant, Horace E. Conklin, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 13th day of December, 1921, determining and enforcing an alleged lien for services, counsel fees and expenses.

Appeal by the defendants, The Herald Company and another, from an award and decision of the State Industrial Board entered on the 23d day of April, 1921.

<p>Motor vehicles — action for injuries to plaintiff’s automobile — trial—• motion by defendants at close of entire case to dismiss complaint, for nonsuit, and for directed verdict — decision reserved to await verdict without objection by either party — verdict for plaintiff set aside by trial court — verdict not against evidence and judgment should be reversed — Appellate Division has power to restore verdict and direct judgment thereon — Civil Practice Act, § 684, construed and applied.</p> <p>In an action to recover for injuries to plaintiff’s automobile, the defendants, at the close of the plaintiff’s case, moved to dismiss the complaint and for a non-suit on the ground that the plaintiff had failed to make out a case. That motion was denied and at the close of the entire ease the defendants renewed their motion and also moved for the direction of a verdict. The court, without objection from either party, reserved its decision on the motion till the coming in of the verdict of the jury, and it then granted the motion made at the close of the case to dismiss the complaint, and set aside the verdict in favor of the plaintiff.</p> <p>Held, on all the evidence, that the verdict of the jury in favor of the plaintiff was sustained by the evidence and should not have been set aside by the trial court, and the judgment entered upon the order setting aside the verdict should be reversed.</p> <p>The Appellate Division, under section 584 of the Civil Practice Act, has the power to restore a verdict that has been set aside by the trial court and to direct that judgment be entered thereon.</p> <p>Cochrane, P. J., and Hinman, J., dissent.</p>

<p>Certiorari Order granted out of the Supreme Court at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 16th day of December, 1921, directed to Walter W. Law, Jr., and others, constituting the State Tax Commission of the State of New York, commanding them to certify and return to the office of the clerk of the county of Albany all their proceedings had in assessing an income tax against the estate of William F. Armstrong, deceased.</p> <p>The relator, the Kings County Trust Company, as one of the executors of the last will and testament of William F. Armstrong, deceased, on the 15th day of April, 1921, filed with the New York State Income Tax Bureau a return of the income from the estate of William F. Armstrong from May 2, 1920, the date of his death, to and including December 31, 1920, showing the net income to be $68,784.41 and computing the income tax to be $1,463.64. With this return it filed a protest because the major portion of the estate passed by the terms of the will to corporations organized and operated exclusively for religious, charitable, scientific or educational purposes and no part of the net earnings inured to the benefit of any private stockholder or individual; the major portion of the income included in said return followed the gifts set forth and described in said notice; and, by imposing a tax upon the net income of the estate, there was being taxed income which is intended by subdivision G of section 359, chapter 627 of the Laws of 1919 (sic), to be exempt from taxation.</p> <p>By the terms of the will legacies were given in the following aggregate amounts:</p> <p>In trust to individuals.......................... $480,000 00</p> <p>General legacies to individuals................... 239,716 50</p> <p>General legacies to charitable and educational institutions.................................. 375,000 00</p> <p>Total.................................... $1,094,716 50</p> <p>The total assets of the estate were............... $1,961,314 35</p> <p>Total deductions.............................. 139,121 45</p> <p>Leaving a net estate of..................... $1,822,192 90</p> <p>The residuary legatee is Wesleyan University and the amount of the residuum is $727,476.40. Although the record does not show it, we are informed by the briefs that, since January 1, 1921, an accounting has been had and the legacies paid over. After the hearing a resettlement of the computation as made in the return was denied and this appeal was taken.</p>

Appeal by the plaintiff, F. Kieser & Son Co., Inc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tioga on the 29th day of September, 1921, upon the report of a referee appointed to hear and determine the issues, dismissing the complaint.

Appeal by the defendant, New York Central Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 13th day of October, 1921, upon the verdict of a jury, 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 defendants, Milton J. Whedon 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 Saratoga on the 14th day of July, 1921, upon the decision of the court rendered after a trial at the Saratoga Trial Term before the court without a jury.

Appeal by Alice C. Jackson from so much of a decree of the Surrogate’s Court of the county of Albany, entered in the office of said Surrogate’s Court on the 31st day of January, 1921, as denies probate to the codicil to the last will and testament of Mary A. McDonough, deceased.

Appeal by the defendants, American Radiator Company and another, from an award of the State Industrial Board entered in the office of the State Industrial Commissioner on the 11th day of October, 1921.

<p>Street railways — action by passenger for personal injuries received while being ejected from car — evidence —• plaintiff’s physician testified concerning injuries — error to exclude testimony of another physician who examined plaintiff morning after alleged assault on ground that communication was privileged — immaterial whether relation of physician and patient existed.</p> <p>In an action against a street railway company by a passenger to recover damages for personal injuries received while being ejected from one of defendant’s cars, where plaintiff and his physician testified concerning the injuries, it was reversible error to refuse to permit the defendant to introduce the testimony of another physician, who had examined plaintiff the morning after the alleged assault, upon the ground that the relation of physician and patient existed and hence any communication was privileged, as plaintiff had placed his person before the jury as a basis for damages and had his condition described by his own physician, and he thereby waived any privilege as to any physician who examined him at about the same time. It was immaterial whether or not the relation of physician and patient was shown to exist.</p>

Appeal by the defendant, James C. Davis, Director-General of Railroads, etc., 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 11th day of June, 1921, upon the verdict of a jury for $14,000, and also from an order entered in said clerk’s office on the 24th day of May, 1921, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mansfield Paint Co., Inc., from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 4th day of January, 1922, denying defendant’s motion to vacate and set aside the examination of the defendant before trial.

Appeal by the plaintiff, Joseph Loria, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 7th day of July, 1921, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint in an action to compel the defendants to specifically perform a contract for the sale of real estate, and directing the plaintiff as purchaser to perform such contract…

Appeal by the defendant, The Town of Stillwater, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 27th 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. The action is brought under section 74 of the Highway Law (as amd. by Laws of 1918, chap. 161).

Appeal by the defendant, Nantex Manufacturing Company, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 18th day of March, 1922, denying its motion to change the place of trial from the county of Orange to the county of New York.

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 6th day of March, 1922, ordering the taking of depositions on notice by the plaintiff.

Appeal by the defendant, Guy B. Moore, 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 17th day of February, 1922, overruling defendant’s demurrer to the complaint.

Appeal by the Town of Elma and others from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 10th day of November, 1921, granting the application of the respondents requiring the towns of Elma, and Marilla jointly to construct a bridge over Big Buffalo creek on a highway known as the Marilla-Elma town line road, the portion of the highway upon which the bridge is situated being in the town of…

Appeal by the defendant, William E. D. Stokes, 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 10th day of February, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1921, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Gustave Carlson, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Suffolk on the 30th day of January, 1922, granting plaintiff’s motion to dismiss defendant’s counterclaim.

Appeal by David J. Katz and others from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 11th day of February, 1922, directing the tenants to attorn to the receiver and requiring them to pay rent to said receiver at the rate fixed in said order.

Appeal by the plaintiffs, William I. Cohn 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 12th day of May, 1921, overruling plaintiffs’ demurrer to a separate defense in the answer.

Appeal by the plaintiff, Louis Lowinson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of March, 1921, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, I. Tanenbaum, Son & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of August, 1920, overruling plaintiff’s demurrer to a separate defense in the answer. _

Appeal by the defendant, Aaron Spechler, 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 29th day of June, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of June, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mabbett Motor Car Co., Inc., from a judgment of the County Court of the county of Monroe, entered in the office of the clerk of said county on the 19th day of December, 1921, affirming a judgment of the City Court, Civil Branch, of the City of Rochester, in favor of the plaintiff.

Appeal by Jhunpush Illwanian and others from a decree of the Surrogate’s Court of the county of Monroe, entered in the office of said Surrogate’s Court on the 18th day of November, 1921, denying probate to a certain written instrument offered as the last will and testament of Hagop A. Peonarían, deceased.

Appeal by the plaintiff, Floyd Kent, from so much of 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 21st day of October, 1921, permitting plaintiff to serve an amended complaint, as denied plaintiff leave to incorporate in the said amended complaint the following allegations: “ That said injury was due to and the proximate cause thereof was the use by defendant on its railroad of a car not…

<p>Appeal by the plaintiff, Fradus Contracting 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 March, 1922, denying plaintiff’s motion for an injunction pendente lite.</p>

<p>Banks and banking — action to recover deposit — payment by bank of draft accepted by depositor — when notice to stop payment not sufficient.</p> <p>In an action to recover a deposit in a bank predicated on the payment by the bank of a draft or trade acceptance after the plaintiff had directed the bank to stop payment thereon, the plaintiff cannot succeed, where it appears that the written notice to the bank to stop payment did not specify the date of the draft or the date of its acceptance, or the exact amount of the draft, though it did specify the date that it would be presented and the person in whose favor it was drawn, for said notice was not sufficient to require the defendant to refrain from paying the draft.</p> <p>Furthermore, a verbal notice which the plaintiff alleged that it gave to the defendant to stop payment on the draft was not sufficient where it was not shown that the notice, which was given on the same day that the draft was presented, was given a sufficient time prior to the payment of the draft to have enabled the defendant in the exercise of reasonable diligence to stop payment thereof.</p>

Appeal by the defendant, Burns Brothers 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 6th day of June, 1921, sustaining plaintiff’s demurrer to the counterclaim of the defendant.

Appeal by the defendant, James D. Clifford, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of May, 1921, directing the defendant to deposit with the clerk of the court twelve Liberty bonds of the par value of SI,000 each, of which the defendant had obtained possession.

Appeal by the defendant, James D. Clifford, 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 December, 1921, denying his motion to vacate an order entered in the office of the clerk of the county of New York on the 9th day of November, 1921, adjudging said defendant in contempt of court and punishing him accordingly for refusing to obey an order entered in said clerk’s…

<p>Appeal by the defendant, Brookdale Mills, Inc., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of" the county of New York on the 20th day of September, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of September, 1921, denying defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, The Model Building and Loan Association of Mott Haven, from so much of 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 10th day of February, 1921, upon the decision of the court rendered after a trial at the New York Special Term, as dismisses the complaint herein as to the respondents.</p>

Appeal by the plaintiff, Harry M. Lasker, Inc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of April, 1922, granting defendant’s motion to vacate an attachment.

Appeal by the defendants, Charles Potter and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of February, 1922, denying defendants’ motion to vacate an order for the examination of the defendants before trial to enable the plaintiffs to frame their complaint.

Appeal by the plaintiff, Martha O’Connell, 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 13th day of April, 1922, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the plaintiffs, Herman Ressler and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of October, 1921, sustaining defendants’ demurrer to the amended complaint.</p>

<p>Appeal by the defendant, Great American Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of April, 1921 sustaining plaintiff’s demurrer ¿to defendant’s affirmative defense to the first cause of action set forth in the complaint.</p>

Appeal by the defendant, Strathmore Leasing 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 7th day of June, 1921, granting plaintiff’s motion for judgment on the pleadings consisting of a complaint and a demurrer thereto.

<p>Landlord and tenant — liability of landlord to invitee — action for injuries received while operating dumbwaiter in apartment house — plaintiff who lived with janitress and helped her with knowledge of defendant’s agent was invitee and entitled to ordinary care.</p> <p>The plaintiff, who was injured by the fall of a dumbwaiter in the apartment house of the defendant was an invitee and the defendant owed to him the duty of ordinary care while upon the premises, where it appeared that the plaintiff some four or five years before the accident told the janitress of the building that he had no home and the janitress permitted him to live with her family in exchange for his assistance to her in work around the building; that he was in the habit of helping the janitress to remove the garbage from the various apartments by means of the dumbwaiter; that the defendant’s agent who had charge of the building and who visited the premises from time to time had full knowledge of the fact that the plaintiff was assisting the janitress in her duties and consented thereto, and that on one occasion the defendant’s agent paid the plaintiff for services performed while the janitress was sick and on other occasions employed and paid him for work about the building.</p> <p>Clarke, P. J., dissents.</p>

Appeal in the first above-entitled action by the plaintiff, Adelheit Dietze, 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 27th day of July, 1920, setting aside the verdict of the jury for $850 in favor of the plaintiff as against the weight of the evidence and dismissing the complaint, and also from a judgment of the Supreme Court in favor of the respondent entered in said clerk’s…

Appeal by the defendant, Jackson Construction Company, from an order of.the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 14th day of November, 1921, confirming the referee’s report approving the accounts of a. receiver appointed in foreclosure proceedings; also from an order entered in said clerk’s office on the 21st day of January, 1922, denying defendant’s motion to vacate the order confirming the…

Appeal by the tenant, Bame Silver, from an order of the County Court of the county of Kangs, entered in the office of the clerk of said county on the 19th day of April, 1922, denying the tenant’s motion to dismiss the petition in summary proceedings to dispossess, upon the ground of lack of jurisdiction.

Appeal by the plaintiff, Helen Goodman, 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 22d day of November, 1921, upon the verdict of a jury, 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 defendant, Hubbs & Hastings Paper Company, from an order of the Supreme Court, made at the Jefferson Trial Term and entered in the office of the clerk of the county of Jefferson on the 11th day of December, 1920, granting plaintiff’s motion to set aside the verdict of the jury in favor of the plaintiff, upon the ground that the verdict was for insufficient damages, and upon exceptions taken by the plaintiff.

Appeal by the defendant, Atlantic Garden Realty Corporation, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of November, 1920, upon the decision of the court rendered after a trial at the New York Special Term, as resettled by an order entered in said clerk’s office on the 29th day of November, 1920, excepting so much of the judgment as provides that the first and third causes of…

Appeal by the defendant, William S. Haskell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of December, 1921, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Helen M. Spear, 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 17th day of August, 1921, upon the decision of the court rendered after a trial at the New York Special Term, adjudging the bill of sale dated April 30, 1918, from the defendant James Spear, Jr., to the defendant Helen M. Spear as fraudulent, null and void and of no effect, and further adjudging the…

Ceoss-appeals by the plaintiffs, Elizabeth Palmer and another, and by the defendant, William F. Taylor, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 28th day of June, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the defendant, Gregory Semenoff, 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 April, 1922, denying his motion to vacate the order of arrest made herein.

Appeal by the defendant, Samley Realty 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 23d day of February, 1922, denying defendant’s motion to vacate a notice requiring the defendant to submit to an examination before trial by its president and its agent, in an action to recover damages alleged to have been caused by the negligence of the defendant.

<p>Appeal by the defendant, Samley Realty 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 23d day of February, 1922, denying defendant’s motion to vacate a notice requiring the defendant to submit to an examination before trial by its president and its agent, in an action to recover damages alleged to have been caused by the negligence of the defendant.</p>

Appeal by the defendant, Max Resnick, 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 February, 1922, granting plaintiff’s application for the examination of the defendant before trial in a negligence case, pursuant to section 292 of the Civil Practice Act.

<p>Appeal by the defendant, Frederick H. Allen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of November, 1921, upon the verdict of a jury for SI,000, and also from an order entered in said clerk’s office on the 21st day of November, 1921, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the Attorney-General 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 15th day of October, 1921, granting the motion of the petitioner, Keith Bros. Co., Inc., a creditor herein, for the appointment of a receiver of the International Insurance Company in place and stead of George P. Slade, the former receiver, and appointing Harry K. Davis as such…

Appeal by the defendant, American Code 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 12th day of January, 1922, upon the verdict of a jury.

Appeal by the defendants, Cowles Realty Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of February, 1922, granting plaintiff’s motion for an injunction pendente lite.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 546 of the Civil Practice Act.</p>

Appeal by the plaintiffs, Edwin Allen Stebbins and others, from so much of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 20th day of November, 1918, upon the report of a referee appointed to hear and determine the issues, as dismisses the complaint. Appeal by the defendant, Frisbie & Stansfield Knitting Company, from so much of said judgment as dismisses the counterclaim upon the merits.

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

Appeal by the defendants, Philip Quinto 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 16th day of January, 1922, granting plaintiffs’ motion for an injunction pendente lite.

<p>Sales — action by seller for failure of buyer to accept goods — construction of contract — contract provided for specified deliveries and, in case of curtailment of production during period of contract, deliveries to be made proportionate to production — where production curtailed buyer must accept deliveries after time deliveries would have been completed in case production had not been curtailed.</p> <p>Where a contract for the sale of a specified quantity of goods provided for the delivery of “ 6-7 per cent, weekly ” to commence “ as early as can in March,” but that if production by the seller shall be curtailed during the time “ above named ” by strikes or lockouts or any unavoidable casualty, the delivery shall only be made proportionate to the production, the buyer is bound to accept deliveries of goods made after the expiration of the time during which all deliveries could have been completed at the weekly rate specified in the contract, that is about sixteen weeks, where it appears that during that period production was curtailed by strikes and the seller delivered quantities in proportion to the production, for under the terms of the contract the obligation of either party did not terminate until the full amount contracted for had been delivered. Since the contract permitted the seller in the contingency named to make reduced deliveries and did not contain a clause which limited the time during which the contract should remain alive, except in so far as it provided for the manner in which deliveries might be required, it follows that the contract could not be terminated by the buyer so long as the seller continued to tender deliveries at. the rate authorized by the contract.</p>

Appeal by the defendant, Globe Indemnity 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 January, 1922, denying defendant’s motion for a judgment dismissing the complaint under rule 106 of the Rules of Civil Practice, upon the ground that it does not state facts sufficient to constitute a cause of action.

Appeal by Harry Collins, 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 15th day of February, 1922, denying the motion of appellant to vacate an order for its examination, by its president, before the commencement of the action and directing the production upon said examination of certain books and papers.

Appeal by the defendant, Rachel Markowitz, 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 September, 1921, denying defendant’s motion to vacate and set aside an order for the examination before trial of George Psaroudis, one of the plaintiffs.

Appeal by the defendant, The Battery Park National Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of May, 1921, denying defendant’s motion for a new trial made upon the minutes.

<p>Trial — removal and consolidation of actions —■ change effected by Civil Practice Act, §§96 and 97 — action by present defendant against present plaintiff in Municipal Court of City of New York on agreement to pay for defendant’s interest in partnership removed to Supreme Court and consolidated with present action for dissolution of partnership.</p> <p>Sections 96 and 97 of the Civil Practice Act make a substantial change in the practice as provided by sections 817 and 818 of the Code of Civil Procedure. Under the Code of Civil Procedure, to enable the court to consolidate two .or more actions, or to remove to itself an action from another court and to consolídate it with a Supreme Court action, it was necessary that the actions should be in the name of the same plaintiff and against the same defendant as well as that the actions should be such as might under the then provisions of the Code of Civil Procedure be joined. The Civil Practice Act contains no such limitation and empowers the court to remove and consolidate actions whenever it can be done without prejudice to a substantial right.</p> <p>An action brought by the present defendant against the present plaintiff in the Municipal Court of the City of New York to recover under an agreement alleged to have been made between the parties, whereby the plaintiff agreed to pay to this defendant a certain sum in consideration that this defendant would vacate the office occupied by the partnership and would assign to this plaintiff all his right, title and interest in and to the lease of said office, and personal property therein, was properly removed to the Supreme Court and consolidated with the present action for the dissolution of the said partnership, which action was commenced prior to the Municipal Court action, for the two causes of action arose out of the same relationship existing between the parties and are so intimately connected that the disposition of one will necessarily involve that of the other.</p>

Appeal by the defendant, John J. Lyons, from a peremptory mandamus order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1922, commanding him as Secretary of State of the State of New York to accept and file a certificate of incorporation of M. S. Siegel & Company, Inc., tendered by relators.

<p>Vendor and purchaser — action by purchaser of apartment house to recover amount deposited and expense of searching title — title could not be rejected because of existence of lien for franchise tax-—■ contract made January 29, 1920, to be closed April 1, 1920, contained statement that all leases, except one, expired or were subject to cancellation on or before October 1, 1920 — April Rent Laws of 1920 (Laws of 1920, chap. 137) good ground for rejecting title — court will take judicial notice of effect of April Rent Laws of 1920.</p> <p>A purchaser cannot lawfully refuse to complete Ms purchase on the ground thaA at the time for closing the title there existed a lien for a franchise tax assessed against the vendor and unpaid, where it is within the power of the vendor to remove the incumbrance against the property, for, time not being of the essence of the contract, the vendor is entitled to a reasonable adjournment of the closing date to enable it to pay the lien.</p> <p>Where a contract for the sale of an apartment house in New York city, executed on January 29, 1920, to be closed on April 1, 1920, contains a provision that the premises should be “ Subject, also, to existing leases, all of which expire or contain provisions for cancellation on or before October 1, 1920, except one lease of the ground floor apartment,” chapter 137- of the Laws of 1920 (being one of the April Rent Laws of 1920), which took effect subsequent to the execution of the contract and on the date fixed for closing, justified the purchaser in refusing to accept the title, for the contract shows that the purchase was made with the understanding that the leases of the several apartments with the exception of one lease would expire or could be canceled on October 1, 1920, and the effect of the statute was to render it practically impossible for the purchaser to take advantage of the provisions of the leases providing for expiration or cancellation.</p> <p>The court -will take judicial notice of the fact that after the April Rent Laws of 1920 went into effect it was practically impossible for the landlord to select his own tenants after the expiration of leases, or to freely contract with desirable tenants in possession as to the rentals to be paid.</p>

Appeal by the defendant, Adelbert T. Emerson, from a 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 24th day of June, 1920, affirming an order made by the Municipal Court, City of New York, Borough of Manhattan, Fifth District, upon a motion by the defendant for judgment under section 89 of the New York City Municipal Court Code (Laws of 1915, chap. 279).

Appeal by the plaintiff, Anne Zimmerman, 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 4th day of October, 1921, upon an order of the Supreme Court made at the New York Special Term on the 29th day of September, 1921, granting defendant’s motion for judgment on the pleadings, consisting of a complaint and answer, and also from said order on which said judgment was entered. ,

Appeal by William Hermann and others from a decree of the Surrogate’s Court of the county of New York, entered in the office of the clerk of said Surrogate’s Court on the 7th day of January, 1922, upon the judicial settlement of the account of the Title Guarantee and Trust Company, as substituted trustee under the last will a,nd testament of William Gee, deceased.

Appeal by the plaintiffs, Anthony Cipolla and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 12th day of March, 1920, upon the verdict of a jury rendered by direction of the court, and also from an order setting aside the verdict of a jury in favor of the plaintiffs.

Appeal by the defendant, New York Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of October, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of November, 1921, resettling 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…

Appeal by the defendant, Priestleys, Limited, 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 February, 1922, appointing a referee to hear and determine the issues.

Separate appeals by the' defendants, Edwin P. Kilroe and Louis E. Swarts, from a judgment of the Supreme Court, rendered on the 12th day of April, 1921, convicting them, under section 580 of the Penal Law, of a conspiracy to do an act for the perversion or obstruction of justice or of the due administration of the laws.

Appeal by the defendant, Priestleys, Limited, 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 February, 1922, appointing a referee to hear and determine the issues.

Appeal by the defendant, Priestleys, Limited, 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 February, 1922, appointing a referee to hear and determine the issues.

Appeal by the defendant, Abraham Weinstein, from a judgment of the City Court of the City of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 19th day of May, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Jacob Weiss, 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 November, 1921, upon the verdict of a jury, 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.

<p>Appeal by the plaintiff, Alabama Holding Corporation, from a determination and order of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 26th day of October, 1921, modifying the judgments of the Municipal Court of the City of New York, Borough of Manhattan, Seventh District, in favor of the plaintiff entered in the present action and in thirteen other independent actions by the plaintiff, the appeals in which have been consolidated by stipulation into one appeal, which said judgments increased the rent by about eighty-two per cent, by reducing rental value thus found, to thirty-five per cent increase.</p>

<p>Appeal by the defendant, Erie Forge 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 2d day of March, 1922, denying the motion of said defendant, appearing specially, to vacate the service of a summons and complaint upon it made outside the State of New York and to vacate a warrant of attachment issued against its property.</p>

Appeal by the defendant, William Hunt, as Agent and Warden, etc., from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 27th day of January, 1922, directing the return of the relator to the sheriff of Bronx county and to the County Court of said Bronx county, there to be dealt with in accordance with the provisions of the judgment under which the relator has been detained.

<p>Trespass — action to restrain defendants from using water of pond for bathing and boating — deed to predecessor in title to parties construed not to convey land under pond as to one parcel — plaintiffs prior bo commencement of action acquired all lands surrounding pond which predecessor in title owned including rights in pond — land deeded to defendant bounded by high-water mark as it existed at date of deed — no evidence that high-water mark was higher than at time of original deed.</p> <p>In an action to restrain the defendants from using the water of a pond for bathing and boating on the ground that in doing so they were committing a trespass on plaintiff’s property, it appeared that a predecessor in title of the parties owned the pond and land surrounding it; that he conveyed the entire property which was located in lots 16 and 21 of subdivision 4 of the Hardenburgh Patent in Sullivan county by deed in which the land in lot 16 was described as “ containing One hundred and fifty-five acres of land, including nearly the whole of Sheldrake pond, which pond is not hereby conveyed and sold, but reserved for the use and benefit of all the lots and farms contiguous thereto;” but as to the land in lot 21 no reference was made to that part of the land under water in the pond; that the defendants’ deed described their land as being bounded by high-water mark of the pond, and that prior to the commencement of the action the plaintiffs acquired all the land surrounding the pond which the predecessor in title of the parties then owned and including whatever rights the grantor had in and to the pond.</p> <p>Held, that as to so much of the pond as was within lot 16 it was not conveyed by the original owner, but is still owned by his heirs or devisees.</p> <p>If the expression in the original deed, “ but reserved for the use and benefit of all the lots and farms contiguous thereto,” had the effect of giving to the grantee in that deed the privilege of using the pond that privilege would not be exclusive, and could not be the foundation of the claim made in this action.</p> <p>The property owned by the defendants which was bounded by high-water mark of the pond is limited by the high-water mark at the time when the deeds were given, and does not extend beyond.</p> <p>The finding of the court that the high-water mark existing at the time the defendants’ deed was made was higher than at the time of the original conveyance so that there was a strip of land between the two marks, which the plaintiffs claim that they acquired by the deed which they secured before the commencement of the action, is not supported by the evidence, and the plaintiffs who have no right to the exclusive use of the pond must establish by satisfactory proof that such a strip exists before they will be given relief for a technical violation of then- property rights.</p> <p>However, if the defendants’ land is a part of lot 21 as to which the land under water was originally conveyed they cannot go upon the pond from their land without trespassing upon the lands of the plaintiffs.</p>

Appeal by the defendants, Maurice T. Jones and others, from an order of the Supreme Court, dated the 13th day of September, 1921, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Saratoga, restraining the defendants from issuing any bonds or certificates of indebtedness or in any wise pledging the credit of the village of Corinth, N. Y., for the purpose of employing special policemen.

<p>Ships and shipping—■ action for death caused by injuries suffered while repairing ship — action against corporation engaged to make repairs — accident caused by defective ringbolt which was part of ship’s permanent equipment — defendant bound to inspect if appearance of bolt indicated apparent defects — whether appearance of bolt indicated defect was question for jury.</p> <p>In an action to recover for the death of plaintiff’s intestate, who was killed while making repairs on a steamship, it appeared that the defendant corporation, in whose employ the deceased was at the time of the accident, was engaged in repairing the steamship in question, and that the accident was due to the parting of a ringbolt, a part of the ship’s permanent rigging. Held, that the defendant could not use the ship’s rigging, including the ringbolt, blindly and without looking at it, and if appearances indicated danger or defects, the duty of further inspection or tests to ascertain if the indicated danger or apparent defects were real or substantial rested on the defendant.</p> <p>It appeared on the trial that the ringbolt broke at the point where it had been welded; that it was not properly welded and there was a defect in the center; that an examination of the ringbolt after the accident showed rust which extended to the outside of the break, and that the rust was above the deck, visible from the outside to ordinary inspection, and was a contributing cause to the breaking of the bolt. Under the facts outlined, it was a question for the jury to say, in view of the extraordinary strain that was placed upon the ringbolt by the defendant, whether the rust on the outside at the point of welding indicated danger in its use or a defect in the bolt that rendered it negligent to use it without further test.</p>

<p>Landlord and tenant — monthly tenancy or tenancy from month to month protected by September Rent Laws of 1920—action for increased rent cannot be maintained without giving thirty days’ notice to tenant that he must surrender or pay increased rent — Laws of 1920, chapters 209 and 944, §§ 5 and 6, construed.</p> <p>An action against a tenant holding under a monthly tenancy or under a tenancy from month to month to recover increased rent for the use and occupation of an apartment in the city of New York cannot be maintained where the tenant is protected in his tenure by the September Rent Laws of 1920, without giving to the tenant the thirty days’ notice required by chapter 209 of the Laws of 1920, which notice must be to the effect that the tenant must surrender or pay the increased rent.</p> <p>A construction of chapter 209 of the Laws of 1920 and sections 5 and 6 of chapter 944 of the Laws of 1920 leads to the conclusion that a tenant whose possession is protected by the September Rent Laws of 1920 cannot be removed in any manner, even by increase in rent, without thirty days’ notice.</p>

Appeal by the plaintiff, Angelo Mastrofrancisco, from an order of the Supreme Court, made at the Schenectady Trial Term and entered in the office of the clerk of the county of Schenectady on the 31st day of October, 1921, setting aside the verdict of the jury in favor of the plaintiff and granting a new trial. Order affirmed, with costs, on the opinion of Borst, J., at Trial Term.

Appeal by the plaintiff, George S. Mawhinney, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Richmond on the 19th day of November, 1921, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the plaintiff, Ludovic Pignatelli, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Nassau on the 2d day of March, 1922, denying plaintiff’s motion for judgment on the pleadings, consisting of a complaint and a demurrer thereto, sustaining defendant’s demurrer and dismissing the complaint.</p>

Appeal by the People of the State of New York from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Richmond on the 3d day of January, 1922, denying its motion to dismiss the proceeding as against it.

Appeal by the defendants, Louis Meyer and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of July, 1921, upon the decision of the court rendered after a trial at the Kings Special Term.

Appeal by the defendant, Indies Navigation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on or about the 22d day of December, 1921, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on or about the 27th day of December, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Aimee J. Marx, 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 15th day of June, 1921, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

Appeal by the defendant, Jesse F. Paddleford, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1922, upon the verdict of a jury.

<p>Appeal by the defendants, William Fisher and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of June, 1921, upon the decision of the court rendered after a trial at the Queens Special Term.</p> <p>The plaintiff is the husband of the defendant Maria Tiedemann, and brings this action to cancel a deed of property at Queens, L. I., made by his wife to the defendants Fisher, dated December 8, 1920, and to compel her to reconvey the property to plaintiff, upon the ground that the wife held the title to the property for him, under oral agreement to reconvey upon plaintiff’s request. That having deserted him, having left the premises which constituted the family home, without notice to him and in violation of her agreement she sold the property to defendants Fisher for $2,500 ($1,000 cash and $1,500 mortgage), when the fair value of the property was $4,000. And plaintiff alleged in the complaint that the Fishers, at the time they purchased the property, had full knowledge of the trust agreement. The defendant wife did not answer, but there is no evidence in the case, or suggestion, that she is acting in sympathy with her husband. At the date of the trial she was still separated from him and appeared by an attorney opposing plaintiff’s claim.</p> <p>The plaintiff testified that in 1918 he owned the property where he resided with his wife and two children. He was engaged in trucking for the city. In that year he met with an accident, his truck was in collision with a Long Island railroad train and he was injured. A boy who was on the truck with him was killed. Plaintiff made a claim for damages against the railroad company. They settled with him for $1,500, which sum he gave to his wife. But there was some talk of the boy’s parents suing him, Tiedemann, for damages for the boy’s death. He says he talked the matter over with his wife, and with the object of saving his home for himself, his wife and children, against a possible judgment, he transferred the house to his wife on her oral agreement that he might have the property back at any time he wanted it. There is no evidence that by this transfer he divested himself of all of his property. He still had his trucks and horses and contracting business. As matter of fact no claim was made and no action was ever commenced against him by the parents of the boy. After the deed to his wife, he paid the taxes and insurance on the property, built a barn of the value of $1,200 on the premises and kept the property in repair. He made other improvements and continued to live on the property down to the date of the trial. All of the expenditures were made out of his own money. His wife lived with him in the premises to November, 1919. In June, 1920, the place was worth $4,000. He knew nothing of the sale of the property to the Fishers until after the deed was delivered, when he received a notice from Fisher demanding possession at once. He had known defendant Fisher for fifteen years. Fisher lived in Queens, two blocks from plaintiff. Mrs. Tiedemann was called as a witness on the defense, and examined by her own attorney, Mr. Herzog, admitted receipt of the deed from her husband in 1918. She says there was no discussion at the time about the automobile accident.</p> <p>Her testimony is that, living apart from her husband, she met her neighbor Fisher on a trolley car on the 5th of December, 1920, and Fisher having mentioned the fact that he had to move from his then residence and was thinking of buying a place, she offered to sell him the house in question for $2,500. Fisher said, apparently at once, that he would buy it — and the next day, December sixth, she went to Lawyer Ashmead’s office and met Fisher and received $100 on account of the purchase. No contract was drawn, “ just a slip of paper,” which was not produced. And on December eighth, two days later, she went to Ashmead’s office, received $900 in cash and a purchase-money mortgage for $1,500, and delivered a deed of the property to William J. and Ruth C. Fisher. She admitted that she did not consult her husband or give him any information about the sale. The defendant Fisher was in court at the trial. He did not take the witness stand nor did he offer any evidence against plaintiff’s claim. There is no contradiction of plaintiff’s evidence that at all times he was in possession of the property.</p>

<p>Habeas corpus — writ to obtain release of girl committed to New York State Training School for Girls and paroled — petition failed to state in what illegality of imprisonment consisted — no proof of service of notice of application upon district attorney of county where girl was detained — order sustaining writ reversed upon both grounds.</p> <p>An order sustaining a writ of habeas corpus and discharging from custody a girl who had been committed to the New York State Training School for Girls at Hudson and had been paroled must be reversed and the writ dismissed, where the petition fails to state in what the illegality of the imprisonment consisted as required by section 1234 of the Civil Practice Act, and there is no proof of the service of a notice of the application for the writ upon the district attorney of the county where the girl was detained at the time when the writ was served. Either ground is sufficient to warrant such reversal.</p>

Appeal by the proponents, Victor H. Thun and another, from a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 27th day of June, 1921, denying probate to the alleged will of Matilda E. Burnham, deceased, and also from an order entered in said office on the same day denying proponents’ motion for a new trial made upon the minutes.

Reargument of an appeal by the defendants, Elizabeth G. Cooper 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 Westchester on the 24th day of November, 1920, upon the decision of the court rendered after a trial at the Westchester Special Term. (See 201 App. Div. 855.)

<p>Appeal by the plaintiff, Roger I. Sherman, and by his attorneys, individually, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 17th day of December, 1921, directing said attorneys to pay to the defendant the sum of $500 on deposit with them.</p>

Appeal by the defendant, Napoleon J. Perreault, Jr., from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 30th day of March, 1922, directing said defendant to give to the plaintiff a discovery and inspection ■ of certain partnership books of the defendants, or in lieu thereof to furnish the plaintiff a copy of such books.

<p>Appeal by the American Life Society of New York from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 25th day of January, 1922, resettling a former order of the court dated the 8th day of March, 1921.</p>

Appeal by the plaintiff, Anna J. M. Lockwood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of June, 1921, upon the verdict of a jury, dismissing the complaint upon the merits, 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 defendant, Alfred H. Lewis, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 29th day of June, 1921, confirming the report of an official referee, denying defendant’s motion to discontinue and ordering the continuance of the action for the protection of the lien of plaintiff’s attorney and that of an assignee of part of plaintiff’s cause of action.

<p>Appeal by the plaintiff, Edith Kelly Gould, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of July, 1921, granting defendant’s motion that the complaint be dismissed on the merits, and also from a judgment entered on said order in said clerk’s office on the same day.</p>

<p>Appeal by the defendant, Frank Jay Gould, 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 April, 1922, denying defendant’s motion for a verified reply to separate defenses in his answer.</p>

Appeal by the defendant, New York Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of May, 1921, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendant, Jacob Ruppert, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of March, 1921, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 24th day of March, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William Stern, from a judgment of the Court of General Sessions of the Peace in and for the County of New York, rendered on the 27th day of June, 1921, convicting him of the crime of manslaughter in the first degree.

Appeal by the National Civil Service Endowment Association 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 30th day of March, 1922, directing the appellant to reinstate the respondent as a member of said association.

Appeal by the defendant, Edward F. Rolle, 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 April, 1922, as denies defendant’s motion to serve and file an amended answer setting up the facts contained in defendant’s proposed answer by way of counterclaim.

Appeal by the plaintiffs, Joseph B. Martindale and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of April, 1920, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 20th day of May, 1920, denying plaintiff’s motion for a new trial made upon the minutes.

<p>Master and servant — action for breach of contract of hiring — evidence established hiring for one year and not at will — accord and satisfaction— burden on defendant to establish — receiving and cashing check given on discharge not accord and satisfaction.</p> <p>In an action by a salesman to recover for breach of an alleged contract of hiring for one year from January 1, 1920, it appeared that he was discharged before the end of the year; that he thereafter accepted and cashed a check which contained the statement “ in full of all demands including salary to September 30, 1920.” Held, that the court was justified on the evidence in holding that the term of employment was for one year instead of at will, as claimed by the defendant.</p> <p>The burden was upon the defendant of establishing the elements necessary to constitute an accord and satisfaction at the time the cheek was delivered and accepted.</p> <p>No inference can be drawn that there was an accord and satisfaction from the check itself, for while it is stated that it is in full for all demands, there is added to those words “ including salary to September 30, 1920, ” and so by its express "terms it excluded from the settlement salary due between September thirtieth and the end of the year.</p>

<p>Trusts — action to revoke trust in personal property — trust for benefit of grantor till she became thirty-five — principal to be paid to children of grantor in case of her death before thirty-five — trust declared by grantor to be irrevocable — grantor had right to revoke under Personal Property Law, § 23 — interest of trustee in commissions did not afEect right to revoke.</p> <p>The grantor of a trust in real and personal property entered into for her benefit has the right to revoke the same so far as the personal property is concerned before the termination of the trust, though by its terms she has declared the same to be irrevocable, where the trust agreement provides that it is to terminate upon the grantor arriving at the age of thirty-five years, and that in case of the death of the grantor before that time then the trustee is to convey and transfer the principal of the trust fund remaining in equal shares to the children of the grantor then living, and that if she should die without leaving children then the trustee is to convey and transfer the fund to such persons as the grantor should designate by her last will and testament, and where it appears that at the time of the demand for the termination of the trust and at the commencement of the action the grantor had no children and there was no issue of any deceased child, and that the grantor is the only person beneficially interested in the trust.</p> <p>Under section 23 of the Personal Property Law, a trust-in personal property is revocable by the grantor thereof upon the consent of all persons in being who are beneficially interested therein, and if there be no other person in being who has either a vested or contingent interest in the trust such revocation is effectual.</p> <p>The incidental benefit that the trustee might derive from commissions is not of such a character as gives it a vested right to the continuance of the trust.</p>

Appeal by the plaintiff, Rosa Frank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Bronx on the 28th day of January, 1922, upon the decision of the court, rendered after a trial at the Bronx Special Term, dismissing the complaint upon the merits at the close of the plaintiff’s case,

Appeal by the defendants, Harry Katz 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 11th day of May, 1921, denying defendants’ motion to vacate a warrant of attachment. The ground of the attachment was the non-residence of the defendants.

Appeal by the plaintiff, Town of Albion, 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 Orleans on the 5th day of January, 1922, vacating a temporary injunction obtained by the plaintiff unless the plaintiff on or before January 12, 1922, enters into an agreement with the defendants providing for the quarrying by the defendants of the stone underneath the highway mentioned in said complaint and for…

Appeal by Charles L. Craig, as comptroller of the city of New York, from a peremptory mandamus order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 29th day of December, 1921, requiring the appellant forthwith to audit and approve the payroll of the employees of the Brooklyn Public Library for the month of January, 1921, in the form and amount theretofore submitted to him, showing the moneys needed to…

<p>Appeal by the defendants, Minnie Rivkin and another, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 17th day of May, 1922, granting plaintiff’s application for an injunction pendente lite and enjoining the defendants from carrying on the business of real estate operators on premises owned by one of them, in violation of an alleged agreement restricting the use of the property.</p>

<p>Attorney and client—disciplinary proceedings — conduct prejudicial to administration of justice — respondent, justice of Municipal Court of City of New York, not disciplined for acts committed while electioneering as candidate for Supreme Court justice, though method of campaigning disapproved — acts of respondent did not relate to activity as lawyer — method of disciplining justice of Municipal Court is exclusive.</p> <p>The respondent, a justice of the Municipal Court of the City of New York, will not be censured, suspended from practice or disbarred under section 88 of the Judiciary Law for “ conduct prejudicial to the administration of justice,” for acts committed by him ip. conducting his campaign for election to the Supreme Court where the alleged improper conduct consisted in printing and distributing placards that depicted the respondent as protecting tenants against rent profiteers, and appealed to the passions and prejudices of a certain class of the community, namely, renters of apartments and tenements, for votes at the election. While such conduct on the part of the candidate for a judicial office is disapproved, still the respondent’s appeal to the electors did not relate to his activities as a lawyer, but entirely to his conduct as a judge on the bench. There is a method provided for disciplining a justice of the Municipal Court and such method is exclusive.</p>

Appeal by the defendant, Morton C. Griffin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 8th day of April, 1922, upon the decision of the court rendered after a trial at the Orange Trial Term without a jury.

Appeal by William F. Flanagan from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 5th day of June, 1922, granting a peremptory mandamus order, directing the appellant, as county auditor of the county of Suffolk, to draw his warrant in favor of Sandy J. Adams, as commissioner of elections for Suffolk county, in payment of his salary from April 13, 1922, to April 30, 1922.

Appeal by the defendant, Wohl, South & Co., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on the 6th day of October, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of September, 1921, denying defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Theodore Geisenheimer 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 Kings on the 8th day of June, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1921, denying defendants’ motion for a new trial made upon the minutes.</p>

<p>Insurance — life insurance — defense of breach of warranty that insured had not received medical treatment within one year before application for reinstatement — treatment at office of doctor constitutes medical treatment — false statements as to medical treatment good defense — attendance by doctor was for substantial disorder.</p> <p>To constitute medical attendance within the meaning of a warranty in an application for reinstatement for life insurance, that the insured had not “ received medical treatment of any kind within one year,” it is not necessary that a physician should have attended the applicant at his home; attendance at the office of a physician is sufficient.</p> <p>A false statement as to whether the applicant has consulted or been attended or treated by a physician is material to the risk,' and is a good defense in an action to recover on the policy, especially where it is warranted to be true.</p> <p>The insured was treated by a physician for a substantial disorder as distinguished from a mere temporary indisposition where it appears that he applied at the office of a physician twice during the month preceding his application for reinstatement and received a prescription from the physician for a complication of ailments of an apparently serious nature.</p>

<p>Liens — mechanic’s lien —• action against owners and contractor to foreclose lien — complaint not insufficient for failure to allege amount due from owners to contractor—Lien Law, § 4, not applicable.</p> <p>The complaint in an action against the owners of a building and the contractor engaged in the construction thereof, t,o foreclose a mechanic’s lien thereon, which alleges that the material was sold and delivered “ to the defendants ” is not insufficient on the ground that it does not allege the amount due from the owners to the contractor, for under the complaint the owners are primarily liable and their property is subject to the lien without regard to the amount due the contractor, and, therefore, no allegation of that amount was necessary.</p> <p>Section 4 of the Lien Law, which provides in effect that where labor is performed for or materials furnished to a contractor, the lien shall not be for a sum greater than that earned and unpaid on the contract at the time of the filing of the notice of lien and any sum subsequently earned thereon, is not applicable.</p> <p>The holding that the complaint is sufficient is not to be construed as holding that it is adequate, if upon the trial the testimony should show that the materials were actually sold and furnished to the contractor alone.</p>

Appeal by the petitioner, Morris B. Evens, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 20th day of March, 1922, denying his motion for a peremptory mandamus order requiring the superintendent of the bureau of buildings, borough of Brooklyn, city of New York, to forthwith cancel an order made by said superintendent on February 9, 1922, which canceled a building permit previously issued…

Appeal by the plaintiff, Charles J. Missir, from an order of the Supreme Court, made at the Kings .Special Term and entered in the office of the clerk of the county of Kings on the 25th day of April, 1922, granting defendants’ motion under section 476 of the Civil Practice Act for judgment on the pleadings, consisting of an amended complaint, answers of the several defendants, and plaintiff’s bill of particulars.

Appeal by the defendants, J. F. Newcomb & Company and another, from a decision and award of the State Industrial Board, entered in the office of said board on the 5th day of December, 1921.

Appeal by the defendant, The Staten Island Rapid Transit • Company, from a decision and award of the State Industrial Commission, made March 29, 1921, and also from an affirmation of said decision and award made by the State Industrial Board on the 28th day of November, 1921. The claim of the father-of the deceased was denied, but an award was made to his mother and five minor brothers and sisters.

Appeal by the defendant, Parshelsky Brothers, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of August, 1921, upon the report of an official referee appointed to hear and determine the issues. Judgment unanimously affirmed, with costs, on the opinion of Hon. Edward B. Thomas, official referee.

<p>Appeal by the defendants, designated as the Estate of Frances Bertelle, from a decision and award of the State Industrial Board, entered in the office of said board on or about the 28th day of September, 1921.</p>

<p>Appeal by the defendants, W. H. Draper & Sons and another, from a decision and award of the State Industrial Board, entered on or about the 25th day of November, 1921.</p>

Appeal by the defendant, George N. Chapman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 14th day of May, 1921, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles S.- Wilson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 16th day of September, 1921, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 3d day of October, 1921, denying defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Eugene De Forest, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 7th day of November, 1921, upon the verdict of a jury, and also from an order denying defendant’s motion for a new trial made upon the minutes.

Appeal by Milton P. Miller from a decree of the Surrogate’s Court of the county of Albany, entered in the office of said surrogate on the 30th day of December, 1921.

Appeal by the plaintiff, James Willis Ballard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 17th day of January, 1922, upon the dismissal of the complaint by direction of the court upon a special verdict, and also from an order entered in said clerk’s office on the 31st day of January, 1922, denying plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, William C. Ormond and others, from a peremptory mandamus 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 March, 1922, requiring the defendants, constituting the board of assessors of the city of New York, to determine the damages caused to the relator's building, known as 101 Park avenue, borough of Manhattan, New York, by the construction of the…

Appeal by the defendant, Bon Ami Company, from an amended judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 16th day of January, 1922, upon the verdict of a jury rendered by direction of the court.

Appeal by Burton M. Chase and others from a decree of the Surrogate’s Court of Niagara county, entered in the office of said Surrogate’s Court on the 25th day of November, 1919, in so far as it construes the last will and testament of Albina Chase, deceased, and makes distribution of the estate among the legatees.

Appeal by the defendants, William F. Becker 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 Jefferson on the 29th day of January, 1921, upon the verdict of a jury, 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 defendant, Richard J. Countryman, from a judgment of the County Court of the county of Jefferson, rendered on the 15th day of February, 1921, convicting him of the crime of rape in the second degree, 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, Philip W. Roth, 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 3d day of November, 1919, upon the verdict of a jury rendered by direction of the court; also from an order entered in said clerk’s office on the 7th day of November, 1919, 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 31st day…

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 Schenectady on the 30th day of November, 1921, upon the verdict of a jury, and also from an order made on the 28th day of November, 1921, denying defendant’s motion for a new trial made upon the minutes.

<p>Waters and watercourses — easements — action to restrain maintenance of dam so constructed as to overflow lands of upper proprietor — claim to easement by adverse user — finding that dam of defendant’s predecessors did not cause waters to overflow plaintiff’s land sustained by evidence.</p> <p>In an action by an upper proprietor to restrain the maintenance of a dam so constructed as to overflow the lands of the plaintiff, in which the defense was interposed that the defendant held an easement based on adverse user by himself and his predecessors in title, held, that the finding by the court that the dam maintained by the defendant’s predecessors did not cause the waters of the stream to overflow the land of the plaintiff is sustained by the evidence.</p>

<p>Appeal by the defendant, Globe Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 3d day of March, 1922, upon the report of an official referee, and also from an order of the Supreme Court made at the Schenectady Special Term and entered in the office of the clerk of the county of St. Lawrence on the same day granting the plaintiff an additional allowance of costs.</p> <p>The defendant the H. K. Corbin Company, Inc., made a contract with the plaintiff to construct for it a water works system on or before September 1, 1918, furnishing therefor all labor and material and to build the same in accordance with plans filed with the clerk of the board of water commissioners of said village. The contract in its entirety is too lengthy to be here detailed and it is necessary only to refer to brief portions thereof which are material to the questions here involved.</p> <p>It was provided in the contract that, if it should be abandoned by the contractor or if the board of water commissioners should be of the opinion that the work was unnecessarily or unreasonably delayed or was not making such progress as to indicate its completion within the required time, the said board should have the power “by contract or otherwise,” as it might determine, to complete the contract, procuring the necessary labor, material, tools and appliances therefor, “ and to charge the expense of said labor, tools and material to the said contractor,” all the expense so charged to be deducted and paid by the village out of such money as might be due or become due to the contractor under said contract, and that in case such expense was less than the sum which would have been payable under the contract if the same had been completed by the contractor the latter should be entitled to the difference, and in case the expense should exceed the sum which would have been payable under the contract if completed by the contractor the latter • should pay the amount of said excess to said village.</p> <p>There was a provision in the contract for liquidated damages as follows:' “ It is further agreed that for each and every day the work contemplated in this contract remains uncompleted beyond the time set for its completion the Contractor shall pay to the Village of Canton the sum of twenty-five (25) dollars, as liquidated damages and not as a penalty. The said sum of twenty-five (25) dollars a day may be deducted from money due or to become due to said Contractor.”</p> <p>It was further agreed that the engineer of the village would on or about the first day of each month make an approximate estimate of the work done and materials furnished during the preceding month and the value thereof at the contract prices and that upon such estimate being made the contractor should be paid on or before the tenth day of that month ninety per cent of the amount of such estimate. The remaining ten per cent was to be held against the completion of the work and was to be included in the payment on the final estimate of the said engineer.</p> <p>At the time of the execution of said contract there was also executed to the plaintiff by the contractor as principal, and the appellant herein, Globe Indemnity Company, as surety, a bond conditioned for the faithful performance by the said contractor of its said contract according to the terms, covenants and conditions thereof. Said bond provided that the surety should be notified in writing of any act of its said principal which might involve a loss to the surety immediately after the occurrence of such act should have come to the knowledge of the obligee.</p> <p>It was further provided in said bond that should the principal therein voluntarily abandon its contract or be lawfully compelled by the obligee to cease operations thereunder the surety should have the right “ in its option to assume the said contract and to sublet or complete the same.”</p> <p>The contractor entered upon the performance of said contract and continued in the performance thereof until September 10, 1918, when it voluntarily abandoned the same. It notified the board of water commissioners of the village on August 15, 1918, of its intention so to abandon the contract on the following 10th of September, 1918, on the ground that because of war conditions, fulfillment of the contract had become impossible, and it regarded itself as free from its obligations. Said board of water commissioners immediately and on August 16, 1918, notified the appellant of such action of the contractor and that the plaintiff looked to the appellant for the completion of the contract and that unless the latter proceeded with the work from and after September 10, 1918, the plaintiff would do so and look to the appellant for the difference between the contract price and the expense of completion. To this notification the appellant paid no attention.</p> <p>The board of water commissioners thereupon after September 19, 1918, proceeded with the performance of the contract and completed the same November 19,1919, at an expense of $25,529.56. When the contractor abandoned the contract September 10, 1918, it had furnished labor and material amounting to $64,532.13.</p> <p>The referee finds that it cost the plaintiff $7,202.90 more to complete the contract than it would have cost it had the contractor completed the same according to its requirements. This fact as so found is not questioned. He also finds that the contract was completed 445 days after September 1, 1918, the time therein specified for its completion and allows the plaintiff $25 per day as liquidated damages amounting to $11,125. He directs judgment for these two amounts aggregating $18,327.90 with interest thereon from December 10, 1919, on which day a demand was made on the defendants for the damages claimed by the plaintiff.</p>

Appeal by the defendants, Mary K. Ross and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 16th day of February, 1922, upon the decision of the court rendered after a trial before the court without a jury at the Albany Trial Term. Plaintiff brings this action as an heir at law of her father, Joseph B. Killip, to partition real estate of which he died seized.

<p>Motion to vacate judgment entered upon remittitur from this court. (See 199 App. Div. 302.)</p>

Plaintiffs’ motion was granted, but defendants’ motion for leave to withdraw demurrers and to answer was denied. On reargument at Special Term defendants’ motion to vacate judgment and for leave to withdraw demurrers and to answer was again denied. Demurring defendants appealed from said last-mentioned decision and order, except in so far as the said decision and order granted the motion for reargument. (See 200 App. Div. 904.)

Duke, and to require the commissioners of taxes and assessments to make a return to the writ of certiorari as amended. Order affirmed, with ten dollars costs and disbursements. No opinion. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.; Clarke, P. J., and Greenbaum, J., dissenting.

The injunction was sought pendente lite in an action to permanently restrain and enjoin the defendant, its servants, agents and employees, from infringement of plaintiff’s trade marks and from unfair competition in the imitation of plaintiff’s label or bread wrapper and for an accounting and damages.

<p>Appeal from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of December, 1920, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived.</p>

<p>Appeal from an order of the Supreme Court, made at the Chautauqua Special Term and entered in the office of the clerk of the county of Chautauqua on the 3d day of January, 1920, denying plaintiff’s motion to punish defendant for contempt of court in having disobeyed the order and judgment in favor of the plaintiff in an action for divorce.</p>