Volume 208 — New York Appellate Division Reports

<p>Appeal by the defendants, James N. Thompson 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 Nassau on the 5th day of January, 1924, granting an injunction pendente lite.</p>

Appeal by the defendants, Ernest Freeland Griffin and others, 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 10th day of July, 1923, canceling certain assessments upon the personal property of the petitioners, as executors, etc., of Jay Gould, deceased, for the year 1923, and striking such assessments from the assessment roll on the ground that the same were illegal and void.

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

Cross-appeals by the claimant, Waterford Electric Light, Heat and Power Company, and by the defendant, The State of New York, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 20th day of February, 1922, awarding compensation to the claimant for lands upon the Hudson river and riparian rights therein appropriated by the State for Barge canal purposes. The opinion of the Court of Claims is reported in Waterford El.

<p>Attorney and client — disciplinary proceedings — attorney who represented two partners in criminal prosecution procured withdrawal of complaint against one without knowledge or consent of other — said attorney after accepting retainer from several tenants permitted default judgment to be taken against them — attorney suspended for one year.</p> <p>An attorney at law suspended from practice for one year upon the charge that, while representing two partners in a criminal prosecution against them, he procured the dismissal of the complaint against one, who was a particular friend, without the consent and against the protest of the other who was finally convicted of violating section 1141 of the Penal Law for having in his possession and selling obscene books, and upon the further charge that, after accepting retainers from several tenants to represent them in actions for increase of rent, he neglected to appear at the trial and thereby permitted a default judgment to be entered, and after being notified that judgment had been taken, neglected to take any steps to protect or restore his clients’ rights.</p>

<p>Appeal by the defendant, Levi A. Fessenden, 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 19th day of March, 1923, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendants, Irish World and American Industrial Liberator Co., Inc., and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of June, 1923, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Bela Krausz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of April, 1923, granting petitioner’s motion for a reargument of its motion to vacate the award of an arbitrator appointed by the court pursuant to an agreement to arbitrate in a contract of sale and vacating the award of said arbitrator.</p>

Appeal by the defendant, Van Beuren and New York Bill Posting Company, from a judgment of the County Court of Bronx county in favor of the plaintiff, entered in the office of the clerk of said county on the 2d day of March, 1923, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of April, 1923, denying the defendant’s motion for a new trial made upon the minutes.

Separate appeals by the defendants, Philip Weinstein and another, individually, etc., and another, and by Meyer Marlow, from separate orders of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of May, 1923, denying separate motions made by the appealing defendants for orders dismissing the complaint for insufficiency, and to strike out certain allegations therein, or in the alternative to…

Appeal by the defendants, Solomon Bunis 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 Ontario on the 28th day of May, 1923, upon the verdict of a jury for $350.

Appeal by the defendants, Rochester Telephone Company 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 Monroe on the 29th day of May, 1923, upon the verdict of a jury for $10,400, and also from an order entered in said clerk’s office on the 14th day of June, 1923, denying defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th day of June, 1923, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Duplan Silk Corporation, from a judgment of the Municipal Term of the Court of Special Sessions of the City of New York, Part I, rendered on the 2d day of April, 1923, and entered in the office of the clerk of the Court of Special Sessions of the City of New York on the 4th day of April, 1923, convicting him of violating section 272 of the Labor Law of 1921 and suspending judgment on sentence. (See Penal Law, §§ 1275, 2188.)

Appeal by the defendant, Charles H. Hopkins, from a judgment of conviction rendered against him by the Children’s Court of Cortland county on the 12th day of December, 1923.

Appeal by the defendant, Anna L. Robertson, 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 Tioga on the 23d day of January, 1924, granting the plaintiff's motion to vacate and set aside an ex parte order obtained by defendant, which directed plaintiff to submit to a physical examination before trial, including, an X-ray examination.

<p>Appeal — no appeal lies from ex parte order — husband and wife — separation — alimony — court has power under Civil Practice Act, § 467, to order reference to report on amount of alimony which defendant should reasonably be required to pay — better practice, however, is for court to determine question itself.</p> <p>No appeal lies from an ex parte order granting plaintiff’s motion in an action for separation to appoint a referee to inquire and report the amount of alimony which the defendant should reasonably be required to pay.</p> <p>In an action for separation the court has power, under section 467 of the Civil Practice Act, to direct a reference to inquire into and report the amount of alimony which the defendant should reasonably be required to pay to the plaintiff, since the question of alimony is not a question of fact arising upon the pleadings.</p> <p>However, the practice should not be adopted except under unusual and extraordinary circumstances, since it leads to delay, unnecessary expense and protracted litigation. The better practice is for the court, at the time of the hearing upon the issues raised by the pleadings and after the determination of those issues, to take proof upon which to determine the amount to be allowed for alimony.</p>

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 Monroe on or about the 19th day of December, 1922, upon the verdict of a jury rendered by direction of the court.

<p>Usury — action to recover penalty prescribed by National Bank Act (U. S. R. S. §§ 6197 and 6198) for knowingly charging and receiving more than six per cent interest — defense that higher rate was charged through mistaken belief that plaintiff was corporation — defense is sufficient in law — error to direct judgment for plaintiff.</p> <p>In an action to recover the penalty prescribed by the National Bank Act (U. S. R. S. §§ 5197 and 5198) for knowingly taking, receiving or charging more than six per cent interest, a defense that the defendant did not knowingly take, receive or charge a greater rate, and that the charging and receiving of seven per cent interest was done through a mistaken belief that the plaintiff, who was conducting business under an assumed name which indicated that the business was incorporated, is sufficient in law, and in fact if it can be proven, since the statute does not apply where a greater rate of interest is charged a corporation, and the penalty cannot be recovered where it is shown that a higher rate is charged through a mere mistake and without intent to take usury.</p> <p>Accordingly, it was error for the court to strike out the answer of the defendant which denied that it knowingly took, received and charged more than six per cent interest and to direct a judgment in favor of the plaintiff for the amount of the penalty, since it was a question for the jury to determine whether or not the defendant acted innocently and through a mistaken belief that the plaintiff was .a corporation when it charged and received a greater rate of interest than six per cent.</p>

Appeal by the defendants, G. Hermann Kinnicutt 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 7th day of February, 1924, as denies their motion for an order directing the severance of the alleged causes of action of the respective plaintiffs herein, and separate prosecution and trial thereof, including the service by each plaintiff of a separate complaint…

<p>Appeal by Elizabeth Courtney, as executrix, etc., from a decree of the Surrogate’s Court of the county of Steuben, entered in the office of said Surrogate’s Court on the 3d day of November, 1919, in so far as it holds and determines that paragraph 2d of the will of Estella S. Briglin is a valid bequest.</p>

<p>Railroads — action under Federal Employers’ Liability Act to recover for death of plaintiff’s intestate resulting from injuries sustained while working on defendant’s tracks in city of Buffalo — defendant owns and operates line in city of Buffalo and connecting line from Buffalo to Queenston, Canada — plaintiff was engaged in interstate traffic at time of accident — error to grant nonsuit.</p> <p>In an action under the Federal Employers’ Liability Act to recover damages for the death of plaintiff’s intestate resulting from injuries sustained while working on defendant’s tracks in the city of Buffalo, it was error to nonsuit the plaintiff on the ground that he was not engaged in interstate commerce at the time of the injury, since it appears that the defendant owns and operates the street railway Une in the city of Buffalo on which plaintiff’s intestate was working at the time of the accident, and also a Une connecting therewith and running thence to Queenston, Canada, and that the defendant was engaged in the interstate carriage of passengers on its several lines. It is immaterial that the ears on the city Une were operated entirely within the city and that the bulk of the traffic on said line was intrastate.</p>

<p>Appeal — case on appeal to Appellate Division not required to contain record of everything that occurred at trial—Civil Practice Act, §§ 575, 576, and Rules of Civil Practice, rules 230, 232, construed and applied — case should contain only such testimony as is material to question to be presented on appeal with statement of reason for any omission — on review of question of fact such testimony only as relates thereto should be presented — sufficiency of certificate by trial judge.— duty of trial judge to see that case contains only testimony material to questions raised—bill of exceptions has advantages over case where only questions of law are presented.</p> <p>On appeal to the Appellate Division the case should, under sections 575 and 576 of the Civil Practice Act and rules 230 and 232 of the Rules of Civil Practice, contain only such testimony as is material to the questions to be raised on appeal, and if a part of the testimony is omitted the case should contain a statement of the reason for the omission.</p> <p>This rule applies in cases where the appellant desires to review questions of fact upon appeal, and unless he desires to review all questions of fact involved in the action, there is no necessity for printing all of the testimony. A brief statement should take the place of testimony upon the questions of fact which the appellant does not desire to review.</p> <p>The requirement, that where the appellant desires to review questions of fact the ease must contain a certificate made by the trial judge or referee that the case contains all the evidence, does not mean that the trial judge must sign a certificate stating that the case, in fact, contains every word of testimony given upon the trial, and where the questions raised do not require a consideration of all the testimony, and the case prepared does not purport to set out all the testimony taken, a certificate to the effect that the case contains all the evidence on the issues to be raised on appeal will be sufficient to permit a review of such questions upon the facts.</p> <p>Upon the settlement of a case, it is the duty of the trial judge to see that the case contains only testimony “ material to the questions to be raised thereby ” as provided in section 576 of the Civil Practice Act.</p> <p>A bill of exceptions has advantages over a case where only questions of law are presented.</p>

Appeal by the defendant, Benjamin Lammes, from a judgment of the County Court of Monroe county, rendered on the 1st day of June, 1923, convicting him of the crime of rape in the second degree.

Appeal by the plaintiff, Lillian LePage, 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 29 bh day of October, 1923, denying plaintiff’s motion to punish the defendant for violation of an order entered in said clerk’s office on the 15th day of December, 1922, in an action for separation.

Judgment and order affirmed, with costs. All concur, except Van Kirk, J., dissenting, with an opinion in which McCann, J., concurs.

<p>Appeal — Court of Appeals — permission granted to appeal to Court of Appeals.</p>

<p>Appeal from a peremptory mandamus order of the Supreme Court, made at the Kings Special Term and entered in the Suffolk county clerk’s office October 23, 1923, directing defendant to install a fire hydrant.</p>

<p>Appeal from a judgment of the Supreme Court, entered in the Delaware county clerk’s office June 7, 1923, upon the decision of the court.</p>

<p>Motion for a reargument of an appeal by the defendant, Wilson & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of October, 1922, upon the verdict of a jury rendered by direction of the court, and also from an order denying the defendant’s motion for a new trial made upon the minutes. [See 207 App. Div. 768.]</p>