Volume 204 — New York Reports

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 28, 1911, which denied an application for an injunction to restrain the defendants from letting certain contracts for highway construction.</p> <p>The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.</p> <p>The question certified to this court, namely, “Has the county of Albany legal capacity to bring this action ? ” should be answered in the negative. (Woods v. Bd. of Suprs., 136 N. Y. 403; Markey v. County of Queens, 154 N. Y. 675; Lorillard v. Town of Monroe, 11 N. Y. 392; Town of Guilford v. Bd. of Suprs., 13 N. Y. 143; Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Mayor, Recorder, etc., of Georgetown v. Alexandria Canal Co., 12 Pet. 91; Roosevelt v. Draper, 23 N. Y. 318; N. P. R. R. Co. v. Whalen, 149 U. S. 157; Osterhout v. Rigney, 98 N. Y. 222; People v. Canal Board, 55 N. Y. 390; People ex rel. Carter v. Rice, 135 N. Y. 473; Matter of Sherrill v. O’Brien, 188 N. Y. 185.)</p> <p>It is not necessary to point to a particular statute giving a county the right to sue or be sued with reference to any particular controversy or cause of action, as the statutes do not, and never have defined the rights of action in relation to which a county may sue or be sued, but only the manner of suit; and whenever a county has an interest in a controversy or cause of action as a body corporate it may avail itself, as a municipal corporation, of all the rights and remedies afforded to an individual. (Russell v. Men of Devon, 2 T. R. 667; Jackson v. Hartwell, 8 Johns. 422; Van Heusen v. Johnson, 3 Den. 183; Town of Guilford v. Cooley, 58 N. Y. 116; Miller v. Bush, 87 Hun, 507; Town of Hempstead v. Lawrence, 138 App. Div. 473; Woods v. Bd. of Suprs., 136 N. Y. 403; Ward v. Petrie, 157 N. Y. 303.) The following principles may be gleaned from the cases: 1. Corporate rights and liabilities may and do grow out of the exercise of public functions and powers by a municipal corporation, such as a county. 2. A county or a town, as a municipal corporation, has a right and interest in or to property in its corporate capacity, which it can protect whenever a misapplication of or injury to such property would result in a special loss to it, and this although the property is acquired, held or used as an incident to the exercise of a public function. (Russell v. Men of Devon, 2 T. R. 667; McKinnon v. Penson, 8 Exch. 310; Gibson v. Mayor of Preston, L. R. [5 Q. B.] 218; Jackson v. Cary, 8 Johns. 385; People v. Ingersoll, 58 N. Y. 1; Bailey v. New York, 3 Hill, 531; Wilson v. New York, 1 Den. 595; Lloyd v. New York, 5 N. Y. 369; Rochester White Lead Co. v. Rochester, 3 N. Y. 463; Bridges, v. Supervisors, 92 N. Y. 570; Maxmilian v. New York, 62 N. Y. 160; Radcliff v. New York, 4 N. Y. 195; Clemence v. Auburn, 66 N. Y. 334.) Whenever a debt is authorizéd by statute for the improvement of highways under the Constitution, in any amount, the highways to be improved with the avails of that debt 'must be determined and equitably apportioned among the counties by general laws. (Const, of N. Y. art. 7, § 12; People ex rel. Lee v. Bd. of Suprs., 43 N. Y. 11; People v. O’Brien, 38 N. Y. 193; People ex rel. Adsit v. Allen, 42 N. Y. 378.) The right to maintain this action is granted by section 12 of article Y of the State Constitution. (People ex rel. McClelland v. Roberts, 148 N. Y. 360; Hadden v. Spader, 20 Johns. 554; Ennis v. Lansing, 7 Paige, 583; T., etc.,Ry. Co. v. Penn. Co., 54 Fed. Rep. 746; Gilchrist v. H. H. S. & S. Co., 58 Fed. Rep. 708; Maury Co. v. Lewis Co., Swan [Tenn.], 236.)</p> <p>Counties in this state have no such powers at common law as to permit the bringing of this action. (1 Black. Comm. [Cooley’s ed.] 113-116, 349-354; 1 Pollock & Maitland Hist. of English Law, 513-515; Maitland Domesday Book & Beyond, 347-349; Russell v. Men of Devon, 2 T. R. 667; Hart v. Bridgeport, 13 Blatchf. 289; People v. Ingersoll, 58 N. Y. 1; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Adler v. Met. E. R. R. Co., 138 N. Y. 173; Davis v. New York, 14 N. Y. 506; Doolittle v. Broome Co., 18 N. Y. 155; Roosevelt v. Draper, 23 N. Y. 318; People v. Fleet, 58 N. Y. 491; Ayers s. Lawrence, 59 N. Y. 192; Osterhout v. Rigney, 98 N. Y. 222.) No statutory authority has been expressly or impliedly conferred upon counties to maintain an action of this character. (Markey v. County of Queens, 154 N. Y. 675; Lefrois v. County of Monroe, 162 N. Y. 563; Seward v. Beach, 29 Barb. 239; Brooklyn City & N. R. Co. v. Coney Island & B. R. Co., 35 Barb. 364; Fearing v. Irwin, 55 N. Y. 486; Hoey v. Gilroy, 129 N. Y. 132; People ex rel. Van Norder v. Commission, 90 App. Div. 555.) The proper plaintiffs in such an action are the people of the state. The only proper official to commence such an action on behalf of the people is the Attorney-General. (People v. S. C. L. Co., 126 App. Div. 616; Attorney-General v. Brown, 1 Swanst. 265; Attorney-General v. Mayor, etc., of Dublin, 1 Bligh [Y. P.], 312; Attorney-General v. Mayor of Liverpool, 1 Myl. & Cr. 171; Attorney-General v. Aspinall, 1 Keen, 513; Attorney-General v. Aspinall, 2 Myl. & Cr. 613; Attorney-General v. Wilson, 1 Cr. & P. 1; Attorney-General v. Corp. of Poole, 4 Myl. & Cr. 17; Attorney-General v. Eastlake, ll Hare, 206; Attorney-General v. Mayor of Belfast, 4 Irish Ch. 119; Attorney-General v. Barrett, 3 Irish Eq. 392; Attorney-General v. Compton, 1 Y. & Col. 417; Parr v. Attorney-General, 8 Cl. & Fin. 409.)</p>

<p>Constitutional law — taxation — the power of taxation is vested in the legislature and, except as restrained by the Federal Constitution, its exercise, for public purposes, is unlimited — New York (city of) — provisions of charter providing for sale of tax liens are constitutional and valid.</p> <p>1. The people of the state, by adopting the Federal Constitution, acquiesced in the grants of and restrictions upon their rights it created or may create; but such legislative powers as they did not yield are delivered over to the legislature, except as withheld by the State Constitution.</p> <p>2. The power of taxation is inherent in the people. It is vested in the legislature, as a part of the more general power of making laws, and, except as restrained by the Federal Constitution, its exercise for public purposes is unlimited.</p> <p>3. While it would be incompetent for the legislature to leave to a state officer or department the power to determine whether a tax should be levied, or at what rate, or upon what property, it may lawfully delegate to a ministerial officer or any department, or its appointee or other authority, the power of using the machinery, as and in the method created by it, for the collection of the taxes it has levied.</p> <p>4. The application of the procedure or remedy through which the tax is collected is no part of the power of taxation "within the meaning of the principle that “ Taxation is the most delicate and highest attribute of sovereignty and cannot be delegated.”</p> <p>5. So much of the Greater New York charter as is contained in sections 1027 to 1045, as amended by chapter 490 of the Laws of 1908, so far as the same provides for the sale of tax liens by the city and the foreclosure thereof by the purchaser, is a valid act of the legislature.</p>

On or about October 4th, 1910, Anna Hachemeister, individually and as administratrix with the will annexed of Henry Hachemeister, deceased, and J. Edward Jetter, as administrator of such decedent and as substituted trustee under his will, presented their petition to the Supreme Court under section 32 of the General Corporation Law, praying that the elections of certain directors or trustees of George Ringler & Company, a domestic corporation, he set aside upon the ground…

The nature of the action and the facts, so far as material, are stated in the opinion. The jury was justified in finding -that the defendant should have provided some guard for the machinery in question so as to prevent workmen from being injured thereby. (L. 1904, ch. 291, § 81; L. 1906, ch. 366; G. F. P. C. Co. v. T. Ins. Co., 162 N. Y. 399; Wynkoop v. L. V. Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The damages allowed were based on incompetent evidence. (Gombert v. L. V. R. Co., 195 N. Y. 273.) The plaintiff, by settling with the Erie Eailroad Company, a joint tort feasor, released this defendant.

This action was brought to recover the sum of $20,000 as damages for the breach by the defendant of its contract with the plaintiff, whereby the latter agreed, for a consideration to be paid by the former, to regulate, grade, curb and lay sidewalks and crosswalks on Ditmars avenue, between Steinway avenue and the Shore road.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the court to exclude from the attention of the jury the letter of Dr. McMorrow and to sustain the objection to that evidence. (Wehle v. Spellman, 1 Hun, 634; Stephen’s Digest of Evidence, 72, 73; Ashner v. Abenheim, 19 Misc. Rep. 285; Mook v. Park, Davis & Co., 9 Misc.

<p>Motor vehicles—negligence — relative rights and duties of pedestrians and persons operating motor vehicles at street crossings.</p> <p>At street crossings both pedestrians and drivers are required to exercise that degree of prudence and care which the conditions demand. A pedestrian at such crossing is not required to look both ways and listen, but only to exercise such reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control, and the rule which fixes the rights of drivers of ordinary vehicles in the use of street crossings is not relaxed in favor of automobiles.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The-contract for the conveyance of four of the houses to the defendant was hut a part of the agreement between the parties, and the whole agreement was not merged in this contract.

<p>Contempt — witness — investigation of municipal affairs by legislative committee — when witness not guilty of contempt for refusal to answer questions and produce books of business corporation—constitutionality of section 856 of Code of Civil Procedure.</p> <p>1. Punishment for contempt by summary conviction, either upon a rule to show cause, or by attachment in the first instance, was at common law inherent in courts of justice and legislative assemblies, and in that principle is found the source of the provision in the Revised Statutes in which section 856 of the Code of Civil Procedure originated.</p> <p>2. This proceeding was instituted under "section 856 of the Code to punish the respondent for an alleged contempt in refusing to produce certain books and papers and to answer certain questions propounded to him, upon a hearing before a senate committee which was charged with the duty of investigating certain alleged abuses in the various public offices and departments' connected with the municipal government of the city and county of Albany. This section provides that if a person “ subpoanaed and attending or brought * * * before an officer or other person or a body,” as prescribed in the preceding sections (854, 855), “refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper, which he was directed to bring by the terms of the subpoena, * * * the person issuing the subpoena, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may, upon proof by affidavit of the facts, by warrant commit the offender to jail, there to remain until he submits to do the act which he was so required to do, or is discharged according to law.” Held, that this section may be so construed as to require notice to one charged with contempt, and that when read in connection with the provisions of the Judiciary Law relating to criminal contempts its provisions are constitutional and valid.</p> <p>3. The right to compel a witness to produce the books of a corporation of which he is the president turns upon whether- their production is necessary to an inquiry set on foot through a legislative committee,"and when such a committee has all the information upon the subject of the inquiry in which it is engaged that is necessary for its general purposes, to allow an examination into the business of a corporation generally as it would be revealed in its books, is improper and without jurisdiction. Hence, this was not a proper case for compelling the witness to produce the corporate books \ within the provisions of section 854 of the Code.</p> <p>4. Section 856 provides, as a condition for invoking the aid of the court, that the questions which are propounded to the witness shall be “pertinent; ” that is, they must be pertinent to an inquiry of the investigation committee into the necessity for remedial legislation.</p> <p>5. The witness, who is described as the “leader” of the dominant political party in Albany county, is the owner of stock in the J. B. Lyon Company, a corporation which had dealings for a number of years with the officials and municipal departments of the city of Albany. He refused to answer the questions: “ (1) Mr. Barnes, you got your stock (referring to the stock of the Lyon Company) in 1901, is not that true ? (3) Did you pay anything for your stock in the Lyon Company? (3) Did you talk to Mr. Lyon about the consideration that you paid for your stock at the time that you saw him ? (4) Did you pay anything for it ? (5) Was it given to you ? ” Held, that these questions were not legal and pertinent within the provisions of section 856 of the Code.</p>

Appeal,, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 5, 1911, which reversed an order of Special Term denying a motion to compel Susan J. Taylor, as administratrix, to pay over certain moneys, the proceeds of an action brought to recover for the negligent killing of her decedent. The following questions were certified: “ 1.

The nature of the action and the facts, so far as material, are stated, in the opinion. The contract of sale and the assignment of stock were void because no stock transfer stamps were affixed to either as required by chapter 241 of the Laws of 1905. (People ex rel. v. Reardon, 184 N. Y. 431; People ex rel. v. Mensching, 187 N. Y. 8.) It was not necessary to set up in the answer the fact that the stamps had not been affixed, it being sufficient to raise it upon the trial.

The nature of the action and the facts, so far as material, are stated in the opinion. The unconditional acceptance by the National Park Bank of new notes from the maker, the Para Recovery Company, on July 22, 1907, the date of the maturity of the note sued on, in settlement of such note, without the consent of Otto Koehler, the accommodation indorser, operated in law to extend the time of payment of the note sued on and to discharge such indorser.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff should have been nonsuited on the ground of his failure to show defendant negligent. (King v. Reid, 124 App. Div. 121; Sitts v. Waiontha Knitting Co., 94 App. Div. 38; Cobb v. Welcher, 75 Hun, 283.) Plaintiff should have been nonsuited on the ground of his failure to show that he himself was free from any contributory negligence. (Chisholm v. Manhattan Ry. Co., 116 App.

The action was brought to recover on a policy of marine insurance issued by the defendant to the plaintiff. It insured him in the sum of fifteen thousand dollars against his “tower’s liability” as the owner of a steam- tug engaged in towing operations, and, as indicated, its purpose was to indemnify him within certain limitations against liability which he-might incur by reason of damages accruing to “vessels or crafts” while being towed by his tug.

The nature of the action and the facts, so far as material, are stated in the opinion. Hotchkiss for appellant. The defendant’s claim made1 at the trial that it was relieved of liability by reason of the provisions of section 326 of the Negotiable Instruments Law was one that must be pleaded as an affirmative defense; such defense, not being pleaded, should not have been entertained and made the basis for judgment in favor of the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The decision of the Appellate Division reversed the interlocutory judgment and dismissed the proceedings upon an assumption of facts which never existed and which were not found by the referee. That court had no authority to direct final judgment for the defendant.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract made the presentation of the architect’s certificate a condition precedent to payment, and the architect’s certificate which was received was not competent evidence of the performance of such condition. (Thomas v. Scutt, 127 N. Y. 133; Ruse v. M. B. Life Ins. Co., 23 N. Y. 516; Wilson v. Deen, 74 N. Y. 531; Fowler v. M. L. Ins.

Supreme Court in the third judicial department, entered May 11, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 3, 1911, reversing a determination of the Appellate Term which reversed a judgment of the Municipal Court of the city of New York overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 3, 1911, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action of partition. The motion/was made upon the ground that an appeal cannot he taken to. the Court of Appeals from an interlocutory judgment.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 12, 1910, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The Appellate Division erred in holding that under the facts the plaintiff had made a question for the jury whether defendant violated any duty it owed to him. (McCann v. Thilemann, 36 Misc. Rep. 145; 74 App. Div. 630; Larmore v. C. P. Iron Co., 101 N. Y. 391; Cusick v. Adams, 115 N. Y. 55; Splittorf v. State, 108 N. Y. 205; Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; Birch v. City of New York, 190 N. Y. 397; Downs v. Elmira Bridge Co., 179 N. Y. 136; Magar v. Hammond, 183 N. Y. 387; Holmes v. D. & H. Co., 128 App. Div. 24; Connelly v. Erie R. R. Co., 68 App. Div. 542.)</p> <p>It was error to grant defendant’s motion for a nonsuit" and to dismiss plaintiff’s complaint. (Brusso v. City of Buffalo, 90 N. Y. 681; May v. City of Brooklyn, 46 N. Y. S. R. 553; Beck v. Carter, 68 N. Y. 293; Driscoll v. N. & R. L. & C. Co., 37 N. Y. 637; Walsh v. F. R. R. Co., 145 N. Y. 301; De Boer v. Brooklyn Wharf Co., 51 App. Div. 289; Wilson v. A. B. Co., 74 App. Div. 56; Fitzgerald v. N. Y. C. & H. R. R. R. Co., 84 App. Div. 62; 179 N. Y. 559; Knight v. Lanier, 69 App. Div. 454; Larkin v. N. Y. & N. R. R. Co., 46 N. Y. S. R. 658.) Whether the defendant was guilty of negligence in the premises, which occasioned or contributed to the personal injuries received by the plaintiff, was a question of fact for the jury. (Driscoll v. N. & R. L. & C. Co., 37 N. Y. 637; May v. City of Brooklyn, 46 N. Y. S. R. 552; 139 R. Y. 650; Walsh v. Fitchburg R. R. Co., 145 N. Y. 301; Beck v. Carter, 68 N. Y. 293; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 282; Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362; Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172; Potter v. N. Y. C. & H. R. R. R. Co., 163 N. Y. S. R. 150; Knight v. Lanier, 69 App. Div. 454; Wilson v. American Bridge Co., 74 App. Div. 596.) Whether the plaintiff was guilty of contributory negligence in the premises was a question of fact for the jury. (Kettle v. Turl, 162 N. Y. 258; Swift v. S. I. R. T. R. R. Co., 123 N. Y. 645; May v. City of Brooklyn, 46 N. Y. S. R. 552; 139 N. Y. 650; Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 282; Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172; Beck v. Carter, 68 N. Y. 293; Driscoll v. N. & R. L. & C. Co., 37 N. Y. 637; Knight v. Lanier, 69 App. Div. 454; Larkin v. N. Y. & N. R. R. Co., 46 N. Y. S. R. 658; 138 N. Y. 634; Wilson v. American Bridge Co., 74 App. Div. 596.)</p>

The Constitution requires that all appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall he made according to merit and fitness. (Const, art. 5, § 9; People ex rel. Sweet v. Lyman, 154 N. Y. 545.) A declaration by the legislature that a place is exempt will not be upheld if it is repugnant to article 5, section 9, of the Constitution.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 5, 1911, which affirmed a judgment of the Erie ‘County Court rendered upon a verdict convicting the defendant of a violation of section 986 of the Penal Law in having received, registered and recorded a bet.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Transfer tax—tax upon property to be transferred under power of appointment — when tax is to be imposed — rate of tax.</p> <p>1. Under the provisions of sections 330 and 330 of the Tax Law (Cons. Laws, ch. 60) property passing under a power of appointment should be taxed on the transfer by the exercise of that power, the same as if the donee of that power was the owner of the property; and hence the remainders are not taxable until the death of such donee, but this rule applies only where there is an absolute gift of a power of appointment, so that the property is certain to pass either under the exercise or non-exercise of the power.</p> <p>3. The court, in determining what should be the rate of the tax when the property is not certain to so pass, must look at the persons to whom the property may in any contingency pass, on the assumption that the power of appointment never will vest in any of the appointees. Upon examination of the terms of the will in question, held, that in no contingency can any person succeed to the remainder under the will — apart from the exercise or non-exercise of the power of' appointment — except the lineal descendants of the testator taxable at the rate of one per cent, subject to future contingencies as to the succession to the property in case the power of appointment vests.</p>

<p>New York (city of) — closing or discontinuing streets — interest on award to property owner—provisions of statute (L. 1895, ch. 1006) applicable thereto.</p> <p>1. So far as it is not specifically provided by chapter 1006 of the Laws of 1895, the provisions of the New York city charter, existing at the time of the award, should govern an assessment of damages 'in street opening proceedings in that city.</p> <p>3. Where an award was made for damages for closing a street after the date when section 990 of the New York city charter (L. 1897, eh. 378) went into effect, chapter 1006 of the Laws of 1895 does not require interest to be added to such award from a time prior to the date of the report, although the proceeding was commenced before the charter went into effect.</p>

The, facts, so far as material, are stated in the opinion. The application was not “duly made” since there was a non-joinder of parties. (Chesterman v. Eyland, 81 N. Y. 398; Matter of City of New York, 200 N. Y. 138.) The court erred in ordering the appellant to turn over to the chamberlain of the city of New York all copies of orders, judgments and decrees of the court directing such deposits. (Code Civ.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 20, 1911, which affirmed an order of Special Term granting a motion for an order of interpleader. The following question was certified: “ Has the court, on this record, power to grant an interpleader ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The whole scheme and object of the decedent was to provide a fund for the payment of the annuity to his wife for life and his sister, Mrs. Wheeler and his niece, the contestant, his only heirs at law and next of kin, and the preservation in the meantime of his wife’s home in the city and his country home.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 15, 1910, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as-material, are stated in the opinion. The statute is in derogation of the common law and must be strictly construed. (Chase v. Lord, 77 N. Y. 1; Dyer v. Drucker, 108 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 23, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. It was error for the court to refuse to instruct the jury that the defendant had the paramount right of way passing Marietta street at the time of the accident.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 9, 1911, which affirmed an order of Special Term denying a motion to vacate a warrant of arrest issued to enforce a subpoena of the superintendent of banks directed to and served upon the appellant herein. The following questions were certified: “ 1.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in permitting the plaintiff to recover upon a cause of action not pleaded in the complaint. (Schradin v. N. Y. C. & H. R. R. R. Co., 124 App. Div. 705; P., C., C. & S. L. Ry. Co. v. Rogers, 87 N. E. Rep. 28; Bertolami v. U. E. &. C. Co., 125 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 27, 1911, which affirmed a decree of the Queens County Surrogate’s Court granting a petition of the substituted trustee of trusts created by the will of Henry Allen, deceased, to compel the executors of the former trustee, deceased, to turn over certain securities.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The loss of the trust fund was not caused by any act of Mr. Hayden’s executors, nor any omission on their part to do any act which they had any legal right or were under any legal obligation to do. (Bremer v. Manhattan Ry. Co., 191 N. Y. 333; Elterman v. Hyman, 192 N. Y. 113.) Mr. Hayden’s executors after his death had no legal right or power, and consequently were under no legal duty, to administer the trust under the will of Henry Allen, or to take any charge or control of the trust estate, or to make any change in the form or character of the investment. (Matter of Allen, 2 Dem. 203; Leggett v. Stevens, 77 App. Div. 612; Brater v. Hopper, 77 Hun, 244; Wildey v. Robinson, 85 Hun, 362; Matter of Moehring, 154 N. Y. 423; Perkins v. Stimmel, 114 N. Y. 359; Matter of Fithian, 44 Hun, 457.) Neither the trust fund nor the securities in which it was invested ever came into possession of Mr. Hayden’s executors, and it was error to require Mrs. Hayden, individually, or Mr. Skidmore’s executors out of his individual estate to deliver the securities in which the trust fund was invested, or to pay over the amount of the trust fund and interest thereon. (Maze v. Brown, 2 Dem. 217; Scofield v. Adriance, 2 Dem. 486; Matter of Fithian, 44 Hun, 457; Matter of Walton, 112 App. Div. 176.) The provisions of the order appealed from, requiring the delivery of the securities or payment of the trust fund and interest thereon out of the estáte of Mr. Hayden, was not justified by the facts shown. (Seaward v. Davis, 133 App. Div. 191; 198 N. Y. 415.) The surrogate’s decree cannot he justified, either on the theory of negligence, or on any proper construction of the items in the account, describing the fund accounted for as invested in bond and mortgage. (Code Civ. Pro. § 2606; Matter of Fithian, 44 Hun, 457; Naze v. Brown, 2 Dem. 217; Schofield v. Adriance, 2 Dem. 486; Perkins v. Stimmel, 114 N. Y. 359; Matter of Walton, 112 App. Div. 176; Jessup’s Sur. Pr. [3d ed.] 617.)</p> <p>The trust estate or the bonds and mortgages in which it was invested were never in the possession of the executors of the deceased trustee, and there is no finding that they ever were. (Matter of Fithian, 44 Hun, 457; Matter of Clark, 119 N. Y. 427; Perkins v. Stimmel, 114 N. Y. 370; Matter of Irvin, 68 App. Div. 162; Matter of Walton, 112 App. Div. 176; Matter of Hicks, 170 N. Y. 195; R. L. Co. v. S. & P. P. Co., 135 N. Y. 212.) Instead of the estate being in the executors’ hands, it was in the hands of Lawton originally as agent for Hayden, and later as agent for respondent, and the findings made at the executors’ request show this affirmatively. (Union Mills v. Harder, 191 N. Y. 483; Bremer v. M. B. Co., 191 N. Y. 333.) The final decree in this proceeding cannot be sustained upon any theory of negligence on the part of the executors. (Whalen v. Stuart, 194 N. Y. 504; City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 94; Code Civ. Pro. § 2606; Matter of Collyer, 113 App. Div. 470; Smyth v. B. U. E. R. R. Co., 193 N. Y. 335; Everett v. Everett, 180 N. Y. 452.)</p> <p>The petitioner herein; Mrs. Doncourt, was under no obligation to the executors of the estate of Nehemiah Hayden, the appellants, to demand from Mr. Lawton the papers representing the trust estate. (Galway v. M. E. R. Co., 128 N. Y. 154; Hollins v. Hubbard, 165 N. Y. 543; Collier v. Miller, 137 N. Y. 339; 2 Pom. Eq. Juris. § 273; Viele v. Judson, 82 N. Y. 40; Long v. Path, 16 Misc. Rep. 85.) Appellants, themselves, are estopped from denying their liability to produce either the securities or the amount represented thereby. (2 Pom. Eq. Juris. § 809.)</p>

<p>Master and servant—when master not liable to servant for injury caused by error of foreman, or omission of a duty which rested upon him.</p> <p>1. If, in a common-law action, it appears that in the execution of some detail of the common work, upon which a number of men are employed, an injury is occasioned to one through the fault of another, whether he be the foreman or not, it is not to be imputed to the employer.</p> <p>2. Defendant provided the necessary number of competent men to receive and stow away iron in the hold of a vessel, and the foreman transferred some of the men to other work. An unusually large load of iron was hoisted in, and in handling it plaintiff was injured. Held, that whether the act of the foreman be regarded as negligence on his part or an error of judgment, it was the omission of a duty which rested upon him as a fellow-servant concerning a detail of the work, and that no duty rested upon the defendant to distribute the men at their work or to see to it that the men were kept at their proper stations.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 3, 1910, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The complaint of the plaintiff should have heen dismissed at the close of her case. The plaintiff failed to prove any negligence on the part of the defendant. (Brennan v. City of New York, 130 App. Div. 267; 197 N. Y. 544; Harrington v. City of Buffalo, 121 N. Y. 147; Kenney v. City of Troy, 108 N. Y. 567; Ayres v. Village of Hammondsport, 130 N. Y. 665; Litchenstein v. Mayor, etc., 159 N. Y. 500; Moran v. City of New York, 98 App. Div. 301; Kortlang v. City of Mount Vernon, 129 App. Div. 535; Ballard v. Vil. of Hamburg, 143 App. Div. 719.)</p> <p>There is evidence to support the verdict. (Kopper v. City of Yonkers, 110 App. Div. 748; 188 N. Y. 592.)</p>

entered October 29, 1910, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. The action was maintained in contravention of the Statute of Limitations, and the trial court erred in refusing to dismiss the complaint upon the merits, and in instructing the jury that they might, notwithstanding the statute, render a verdict for plaintiff.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 31, 1910, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived, and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Plaintiff’s assignor never in any way “waived” his rights under the contract in suit. (Ripley v. Æ. Ins. Co., 30 N. Y. 136; Owen v. F. J. S. Ins. Co., 57 Barb. 518; People v. Manhattan Co., 9 Wend. 351; Draper v. O. C. F. R. Assn., 19 N. Y. 12; Goulds Mfg. Co. v. Munckenbeck, 20 App. Div. 612; Clark v. West, 125 App. Div. 651; McKnight v. Dunlop, 5 N. Y. 537.) The contract in suit and all rights under it were assignable. (Zabriskie v. Smith, 13 N. Y. 322, 333; Haight v. Hayt, 19 N. Y. 464, 474; Devlin v. Mayor, etc., 63 N. Y. 8; N. E. Iron Co. v. El. R. Co., 91 N. Y. 153; R. L. Co. v. S. & P. Co., 135 N. Y. 209; Chambers v. Lancaster, 160 N. Y. 342; N. Y. B. N. Co. v. H. B. N. Co., 180 N. Y. 280; Francisco v. Smith, 143 N. Y. 488; L. W. P. Co., v. S. W. P. Co., 59 App. Div. 353.)</p> <p>The acts of plaintiff’s assignor in making an option sale of all the stock on April 7, 1908, in conjunction with all stock controlled by him and the defendants, including the treasury stock, amounted to a complete waiver of the performance of any obligation under the old contract between the parties. (N. Y. Rubber Co. v. Rothery, 107 N. Y. 310; Gearty v. Mayor, etc., 171 N. Y. 72; Shapley v. Abbott, 42 N. Y. 443.)</p>

The action was brought by plaintiff to restrain the defendants from seeking to enforce the provisions of the Tenement House Act (Laws of 1901, chap. 331) against plaintiff’s building, planned and erected in 1901.

<p>Contract — analysis and construction of contract for constructing part of barge canal — changes in plans required by unforeseen conditions rendering completion of work under original plans impossible — when contractor cannot recover profits lost by such changes.</p> <p>1. The parties entered into a written agreement for the construction by the claimant of about three and three-fourths miles of the new Champlain canal and payment by the state for work and materials at certain unit prices for specified items in various installments as the work progressed, ten per cent being retained until the completion of the contract, which contract contained the following provision:.' “7. It is mutually agreed that the state reserves the right until the final completion and acceptance of the work, to make such additions to or deductions from such work or changes in the plans and specifications covering the work as may be necessary and the contract shall not be invalidated thereby and no claim shall be made by the contractor for any loss of profits because of any such change or by reason of any variation between the quantities of the approximate estimate and the quantities of the work as done.” The contractor commenced work and had practically finished and had been nearly paid for a substantial part of the contract, when a stop order was issued by the state suspending a part of the work until new plans could be perfected, and subsequently the state issued and submitted to the contractor for its approval alteration orders which involved a change in the plans covering the work embraced in the contract eliminating therefrom about one-half mile out of the total of about three and three-fourths miles. Changes were also made in the estimates of quantities, but the same unit measure was retained. The claimant refused to comply with the alteration orders and notified the officers in charge that it treated the same as a violation of the contract, and that it would hold the state liable for all damages caused thereby.</p> <p>The items of the claim as specified in the notice filed included, among other things, loss of profits for work not done owing to the alleged breach and damages for delay. The court found that it was impossible to construct one of the locks as planned at said location or to secure a suitable site within the limits of claimant’s contract; that it' was impracticable to construct the remainder of the work within the limits of the stop order as provided by the original plans and specifications by reason of the slippery and unstable condition of the subsoil, which was unknown to both parties; that conditions were such as rendered the performance of the contract as planned impossible and made necessary substantial changes in the nature and cost of the contract and substantially affected the work remaining under the contract within the limits of the stop order. The change was not made because it was cheaper or better, but because it was necessary. Held, that the seventh clause of the contract permits the state not only to make such additions to or deductions from the work, but also to make'such changes in the plans and specifications covering the work as may at any time be necessary, without rendering the contract invalid or subjecting the state to claims for loss of profits by the contractor; that when performance became impossible owing to conditions unforeseen by either party, necessity for the changes arose, and those made were within the provisions of the contract and the power expressly reserved by the state, and hence the claimant was not entitled to prospective profits and cannot recover damages for the alleged breach of the contract by the state.</p>

<p>[(1.) Dangerous weapons, carrying or possession of—¡Penal law 1897.</p> <p>The legislature has the undoubted power to declare that various, acts, not theretofore so, shall be criminal, without proof of other intent as a necessary ingredient of the offense than the intent to-commit the prohibited act.</p> <p>¡(2.) Same—Slung shot.</p> <p>The carrying or possessing of a slungshot even without proof of specific ulterior criminal intent is within the character of acts, which the legislature may thus condemn. Such legislation does not violate the provision of the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed, which is not designed to control legislation by the state. Moreover, a slungshot is not one of those weapons intended either by the Constitution or the Bill of Eights.</p> <p>'(3.) Same—Possession must be a knowing and voluntary one.</p> <p>Such possession must be a knowing and voluntary one which places the weapon within the immediate control and reach of the accused and where it is available for unlawful use if he so desires, and should not be construed to mean a possession such as would theoretically and technically follow from the legal ownership of a weapon in a collection of curious and interesting objects or which might result temporarily and incidentally from the performance of some lawful act.</p> <p>(4.) Same.</p> <p>The appellant was convicted under an indictment which charged that he “ did carry and possess a certain instrument and weapon of the kind commonly known as a slungshot. At the time-in question section 1897 of the Penal Law provided: “A person who. attempts to use against another, or who carries, or possesses any instrument or weapon of the kind commonly known as a slungshot, billy, sand club or metal knuckles, or who with intent to use thei same against another, carries or possesses a dagger, dirk or dangerous knife is guilty of a felony.” Upon examination of this section, in connection with, section 1898, held, that the trial judge properly charged that “a person who carries or possesses any instrument or weapon of the kind commonly known as a slungshot is guilty of a felony,’ and correctly refused to charge that proof was necessary of i intent to use the slungshot.</p>

This action was brought to foreclose a mechanic’s lien filed by the plaintiff as contractor against certain premises belonging to the defendant Mannesohmidt and the complaint is in the form usual in such cases.

The nature of the action and the facts, so far as material, are stated in the opinion. No declaration of deceased, written or oral, made subsequent to the gift and inconsistent therewith, or in effect denying or avoiding the gift, was admissible in favor of her executor. (Scheps v. Bowery Sav. Bank, 97 App. Div. 434; Cornell v. Cornell, 21 Wkly.

of defendant entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion. There was a transportation within the meaning of the statute. (People v. Booth & Co., 105 App. Div. 184.) The statute was drawn with reference to both common carriers and individuals. (People v. White, 124 App. Div. 19; People v. Booth & Co., 105 App. Div. 184; People v. Stillman, 117 App.

A motion for a nonsuit was made at the close of all the evidence. Decision on this motion was reserved pending submission of the case to the jury and was finally granted after the latter had failed to agree on a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. - The plaintiff failed to show any actionable negligence on the part of the defendant at the close of its case, and, at the close of the whole case, the defendant had shown that plaintiff’s injury was caused by a person not in its employ.

The nature of the action and the facts, so far as material, are stated in the opinion. Mrs. Kufeke, the plaintiff’s assignor, having intrusted the possession of the gems in question to Weher for sale, he became her agent or factor for the purpose of such sale, and the defendant acquired a valid hen under the Factors’ Act for the money advanced by him in good faith upon the strength of such possession.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 31, 1910, reversing a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of New York on trial without a jury and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

Field, deceased. A paper purporting to be the last will and testament of Warren B. Field, deceased, dated January 10, 1910, was refused probate by the surrogate of Kings county on the 25th of July, 1910. The American Society for Psychical Research, one of the legatees not cited in the Surrogate’s Court, appealed to the Appellate Division where the order of the surrogate was unanimously affirmed and thereupon an appeal was taken to this court.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 4, 1910, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material are stated in the opinion.</p> <p>The plaintiffs are estopped from denying the validity of the mortgage. (Bigelow on Estoppel [5th ed.], 570, 596; Thompson v. Simpson, 128 N. Y. 2; Viele v. Judson, 82 N. Y. 32; Howard v. Duncan, 3 Lans. 174; Title G. & T. Co. v. Haven, 126 App. Div. 802; Cram v. Seton & Bunker, 1 Hall, 262; Cady v. Shepherd, 11 Pick. 400; Swan v. Stedman, 4 Metc. 548; McIntyre v. Park, 11 Gray, 102; Holbrook v. Chamberlin, 116 Mass. 155; Voorhis v. Olmstead, 3 Hun, 744; affd., 66 N. Y. 113; Continental Nat. Banker. Nat. Bank of Commonwealth, 50 N. Y. 575.)</p> <p>The devisees of Caroline Strauss are not estopped from asserting that the signature to the mortgage was forged by reason of the payment of interest. (Bigelow on Estoppel [5th ed.], 639; Walrath v. Redfield, 18 N. Y. 457.) It is not necessary for the owner of real estate, if her own interests do not require it, to attack a forged mortgage on her property. (Meley v. Collins, 41 Cal. 663.) Caroline Strauss was under no obligation to inform the defendant of the forgery. (Thompson v. Simpson, 128 N. Y. 270; Hollins v. Hubbard, 165 N. Y. 534; Hardin v. Dolge, 46 App. Div. 416.) The appellant cannot succeed unless it is shown that Caroline Strauss by her conduct willfully, or negligently, induced the Title Guarantee and Trust Company to omit to do something which it would otherwise have done but for such conduct. (Garlinghouse v. Whitwell, 51 Barb. 208; Barnard v. Campbell, 55 N. Y. 456; Trenton Banking Co. v. Duncan, 86 N. Y. 221.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 29, 1911, which reversed an order of Special Term dismissing the petition herein so far as it refers to lands of the appellant. . The facts, so far as material, and the question certified are stated in the opinion. The question certified to this court should he answered in the affirmative.

The nature of the action and the facts, so far as material, are stated in the opinion. If the Barge Canal Act is to be construed as imposing upon the state the cost of reconstructing railroad bridges over navigable rivers it contravenes the provisions of section 9 of article 8 and section 19 of article 3 of the State Constitution.

The nature of the action and the facts, so far as material, are stated in the opinion. The Constitution having expressly provided a method for the removal of judicial officers, no other can he resorted to. The legislature cannot do indirectly what it cannot do directly. (People ex rel. Burby v. Howland, 155 N. Y. 272; People ex rel. Bolton v. Albertson, 55 N. Y. 50; People ex rel. Hopkins v. Bd.

<p>Sale — duty of vendee to reject merchandise promptly if found to be unmerchantable — when such rejection is insufficient.</p> <p>1. An express warranty survives acceptance, but an implied warranty does not. It is, therefore, the duty of a vendee of merchandise to exercise reasonable diligence in ascertaining its grade and condition and to reject it promptly if it proves to be unmerchantable.</p> <p>2. Upon an examination of the facts, including previous correspondence, in an action upon an accepted draft drawn for “ value received in merchandise ” and attached to a bill of lading where the consignee could only obtain the goods by acceptance of the draft, held, that a letter of the vendee dated seventy days after receipt of the goods, stating, “I hold the fifty (50). eases of dried mushrooms at your disposal against remittance of Francs 4,759.21 as per statement enclosed. You may sue me and I will easily prove the correctness of my claims,” was not such a rejection of the merchandise as to constitute a defense to the vendee.</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 26, 1912, which modified, and affirmed as modified, as matter of law and not in the exercise of discretion, an order of Special Term granting a motion for a peremptory writ of mandamus.

This action was brought to recover damages from the defendant on account of his alleged breach of a contract made by him with the plaintiff. II pon the. trial it appeared that for some time prior to October, 1904, the firm of Gugino Brothers, composed of Carmelo and Nat ale Gugino, was engaged in the manufacture and sale of macaroni in the city of Buffalo. They had a plant, machinery and stock worth about $10,000, of which Carmelo owned two-thirds and Natale one-third.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 30, 1910, affirming a judgment in favor of defendant entered upon a verdict. In November, 1907, the defendant, a domestic corporation, was engaged in carrying out a contract with the state of New York, which required that certain material should be dredged from the bed of the Hudson river near Eort Miller.

<p><!.) Tbial—Evidence—Obdeb of Pboof.</p> <p>The rule is well established that a trial judge may exercise his discretion in regulating the order in which evidence shall be produced, in permitting the examination of witnesses out of the natural order, in allowing the recall of witnesses and in relieving a party from his error 1 and default in not calling a witness at the proper time.</p> <p><2.) Same—Reopening case.</p> <p>In a criminal trial, after the case has been finally submitted to the jury, and either before or after their retirement, the trial court may, in its discretion and under proper circumstances and conditions, reopen the case for the purpose of permitting additional evidence to be introduced on an essential point.</p> <p><3.) Same—Recalling witness—Examination by juby.</p> <p>Upon the trial of a defendant charged with abducting a female under the age of consent, important evidence on the essential fact of the complainant’s age was given by her mother, who was ignorant and confused. After the jury had been charged and had retired they returned, and, on the request of one of the number, the mother was recalled for further examination on this subject. This examination was largely conducted by members of the jury, although the court and the prosecuting attorney did ask some questions. The defendant’s attorney was not denied the right of subsequent cross-examination, but expressly disclaimed any desire therefor, nor did he request the privilege of commenting on the additional evidence before the jury retired again. Meld, that the action of the trial judge in admitting such evidence was within his discretion; ■ that no reversible error was committed thereby, and that the judgment of conviction should be affirmed.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 28, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action on contract.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 31, 1910, reversing a judgment in favor of defendants, appellants, entered upon a decision of the. court on trial at Special Term and granting a new trial in an action of partition.</p>

<p>Duress — withholding possession of personal property until payment of money.</p> <p>The act of withholding from a party entitled to it the possession of personal property until money is paid gives the payer his action to recover the sum paid.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 7, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for work performed and materials furnished.</p>

<p>Appeal from a judgment of the Supreme Court, rendered July 6, 1910, at a Trial Term for the county of Chautauqua, upon a verdict convicting defendant of the crime of murder in the first degree.</p>

<p>The opinion in this case (202 hi. Y. 466) was not intended to construe or interpret the amendment which was made by chapter 242 of the Laws of 1907 to section 87 (now 107) of the Real Property Law.</p>

<p>Appeal from" a judgment entered July 25, 1910, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a dismissal of the complaint.</p>

<p>The determination of the validity of the title in question held .to be dependent upon oral testimony; that it is not free from doubt, and that, under the circumstances, the court should not compel the purchaser to take the title. {Heller v. Cohen, 154 N. Y. 299, followed.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 9, 1911, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the answer.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 16, 1911, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action to recover upon a certificate of life insurance. The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action ? ”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 13, 1911, which reversed an order of Special Term denying a motion to vacate an order for the examination of the respondent herein as an expected party to an action.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 21, 1911, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel defendants to revoke a certain resolution classifying certain civil service positions in the exempt class.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 1909, affirming, in so far as appealed from by defendant and reversing in so far as appealed from by plaintiff, a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action to recover upon a foreign judgment.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 5, 1911, which reversed an order of Special Term appointing a temporary receiver of the defendant company. The following question was certified: “ Are there officers of George Ringler & Company empowered to hold the assets of that company as contemplated by subdivision 3 of section 306 of the General Corporation Law ?”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 21, 1911, which affirmed an order of Special Term appointing a commission ele lunático inquirendo, in a proceeding for the appointment of a committee of the property of an alleged incompetent. The following questions were certified: “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 23,1911, which affirmed an order of Special Term reducing an assessment against the special franchises of relator for purposes of taxation for the year 1905.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 3, 1910, in favor of plaintiff, upon the submission of a controversy, under section 1219 of the Code of Civil Procedure, as to whether a policy of life insurance was in force at the death of the insured.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 7, 1909, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to enforce an assignment of defendant Thompson’s interest in a certain trust fund given as collateral security for certain notes.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1911, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer in an action to compel a reconveyance of real property.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 9,1912, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel defendants to reinstate the relator in the position of plumbing inspector in the bureau of buildings for the borough of The Bronx, city of New York.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 9, 1912, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel defendants to reinstate the relator in the position of plumbing inspector in the bureau of buildings for the borough of The Bronx, city of New York.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 17, 1911, which affirmed a final judgment dismissing the complaint entered upon an interlocutory judgment of Special Term sustaining a demurrer to the complaint in an action to have declared illegal and void an ordinance of the hoard of health of the city of New Yoric requiring a certificate of death to be signed by a physician on whom had been conferred the degree of doctor of medicine.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July ?, 1911, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and granting a new trial in an action to have canceled certain certificates of shares of stock.</p>