Volume 209 — New York Appellate Division Reports

Reargument of an appeal by the petitioner, Henry G. Trevor, from so much of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said Surrogate’s Court on the 30th day of January, 1923, as holds valid a trust created by the will of John B. Trevor, deceased. (See Matter of Trevor, 120 Mise. Rep. 22; 207 App. Div. 673; 208 id. 812.) The testator died December 22, 1890, leaving an estate of upwards of $10,000,000.

<p>Motor vehicles — pedestrian sixty-three years of age, on wet, stormy night, while walking on dirt path on right side of highway containing macadam strip in center thereof, was overtaken and struck by defendant’s automobile — evidence presented questions for jury as to negligence of defendant’s chauffeur and as to contributory negligence of plaintiff.</p> <p>In an action for personal injuries sustained by the plaintiff by being struck by defendant’s automobile, the plaintiff presented a case for the jury, both as to negligence on the part of defendant’s chauffeur and as to contributory negligence, where it appears that the plaintiff, sixty-three years of age, while walking where pedestrians necessarily and usually walked, on the dirt strip on the right side of a highway which had a macadam strip in the center twenty-three feet wide, was overtaken and struck by defendant’s automobile; that it was a wet, stormy night; that defendant’s chauffeur did not slow down and that he sounded his horn less than two seconds before striking the plaintiff.</p>

Appeal by the defendant, Joseph W. Jones, 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 7th day of February, 1924, denying his motion to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

<p>Wills — construction — trust for benefit of daughter of testatrix with remainder to children and to issue of deceased children — remainders contingent and vest on death of life tenant.</p> <p>Under a will whereby the testatrix created a trust under which her executors • were to pay the net income thereof to the daughter of the testatrix for life and upon her death distribute the principal among the children of the testatrix and the issue of deceased children, the remainders are contingent and vest on the death of the life tenant.</p> <p>Where, as in this case, there is no gift but a direction to executors to pay over and distribute at a future time, the interest of the beneficiaries is not vested until that time arrives and is conditional upon survivorship.</p>

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

Appeal by the plaintiff, Francis B. Stoddard, Jr., 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 July, 1923, denying his motion to strike out a certain defense and the defendant’s counterclaim.

<p>Ships and shipping — action by longshoreman against stevedore corporation to recover for injuries suffered while stowing cargo in ship — verdict that there was defect in net used to lower cargo not aga'nst evidence — verdict for $4,000 not excessive ■— plaintiff did not give notice to his foreman of defect in net — undisputed evidence shows that proper equipment was at hand and any failure to use it was act of fellow-servant — complaint to foreman would not have fixed liability on defendant — jury should have been instructed that gangwayman notified by plaintiff of defect was fellow-servant and that notice to him was not notice to defendant—defendant not liable.</p> <p>In an action against a stevedore corporation to recover for personal injuries suffered by the plaintiff while he was working as longshoreman stowing a cargo in the hold of a ship the verdict of the jury that the net which was being used to lower the cargo was defective is not against the weight of the evidence.</p> <p>The verdict for $4,000 was not excessive in view of the nature of plaintiff's injuries.</p> <p>However, the plaintiff cannot recover and the complaint must be dismissed sino# it appears that the plaintiff was aware of the alleged defect in the net several minutes before the accident occurred and failed to notify his foreman thereof, although he did notify the gangwayman of the defect; that the undisputed evidence shows that the defendant had at hand suitable equipment with which to do the work and that if there was any failure to use it that failure was due to the act of a fellow-servant of the plaintiff.</p> <p>Even though the plaintiff had notified his foreman or superintendent of the defect the defendant would not be liable in view of the fact that it had supplied adequate equipment for the work in hand.</p> <p>It was error for the court to refuse to instruct the jury that the gangwayman who was notified by the plaintiff of the defect was a fellow-servant of the plaintiff and that a notice to him was not equivalent to a notice to the defendant.</p>

<p>Contracts — wrongful interference — defendants as agents had contract with motion picture corporation for pictures for southern part of South America—contract was canceled and similar contract made with plaintiff — plaintiff alleges that thereafter defendants secured films and maliciously interfered with his territorial rights — malice, which is essential to cause of action, not shown — error to charge that test of defendants’ liability was failure to use due care after cancellation of contract—-measure of damage is not cost of contract to plaintiff but loss of profits — expert evidence as to value of contract is inadmissible.</p> <p>In an action in tort to recover damages based on the alleged malicious interference by the defendants with plaintiff’s motion picture territorial rights under a contract with a motion picture corporation, in which it appeared that the defendants, as agents, had a contract with the motion picture corporation for the southern part of South America, which contract was subsequently canceled and á contract made between the plaintiff and said corporation for the same territory, the plaintiff cannot recover, since malice on the part of the defendants, which is an essential element of the cause of action, is not shown. While it appears that the defendants’ principal secured possession of certain pictures after the cancellation of the contract, shipping said pictures was a mistake, and after defendants’ attention had been called to the fact they endeavored to divert said shipment to the plaintiff.</p> <p>The test of the defendants’ liability in an action of this nature is not whether they, after learning of the plaintiff’s rights under his contract, did all that a reasonably prudent person would have done under the circumstances to protect the plaintiff in his contract rights but whether or not after knowledge of the plaintiff’s contract the defendants acted maliciously for the purpose of injuring the plaintiff, and it was error to charge that the test of defendants’ liability was their failure to use due care after learning of the plaintiff’s rights.</p> <p>It seems, that the case was submitted to the jury on an erroneous theory of damage in that the court charged that the measure of damages would be what the contract cost the plaintiff, whereas the correct measure would have been the loss of profits which plaintiff could have derived under his contract.</p> <p>It was error to admit the opinions of experts as to the value of the contract hold by the plaintiff since that question should have been determined by the jury from the facts proven.</p>

<p>Appeal by the defendants, Louis P. Bach and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on or about the 1st day of May, 1923, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Wills — construction — devise of one-half of property to wife for life with power to sell real estate with consent of co-executor — co-executor died — consent of co-executor not necessary to marketable title to real estate — res judicata — judgment in action in Supreme Court to construe will is res judicata—Supreme Court had jurisdiction of said action.</p> <p>Under a will which devises one-half the property of the testator to his wife for life with remainder to his children and which provides that the wife may sell the realty upon obtaining the consent of her co-executor to the sale, and that in the event of a sale the wife shall have the right to use so much of the proceeds for her own benefit as she may desire, the death of the co-executor without his consent having been obtained for the sale of the real estate, does not destroy the power of sale and the wife may give a good and marketable title to the real estate, since it was evidently the intention of the testator to permit his wife to have the right to use the entire proceeds of the sale, and if tho consent of her co-executor were necessary then the intent of the testator ■wieewrd be frustrated.</p> <p>A judgment in an action in the Supreme Court brought for the purpose of construing the will in which all the persons in whom any interest in the property was either vested or contingent were parties, is res judicata in this action on the power of the wife to convey a good title to the promises.</p> <p>The Supreme Court had jurisdiction of the prior action since it was expressly stated in the complaint to be and was maintainable as an action to determine the validity, construction and effect of a testamentary disposition of real property.</p>

<p>Appeal by the defendant, The Public National Bank 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 23d day of October, 1923, denying its motion for judgment dismissing the complaint.</p>

<p>Sales — action in conversion to recover for goods stopped in transit — plaintiff secured letter of credit in favor of third person to be drawn on by draft accompanied by parcel post receipts — third person bought from defendant who shipped to plaintiff by parcel post and delivered receipts to third person — goods were not delivered on false representations and defendant could not reclaim them—goods were transferred to plaintiff, bona fide purchaser, before disaffirmance —■ Personal Property Law, § 105, applied — defendant did not have right under Personal Property Law, § 143, to stop goods in transit.</p> <p>In an action in conversion to recover the value of goods shipped by the defendant by parcel post to the plaintiff, it appeared that the plaintiff opened a letter of credit in favor of a third person to be drawn on by drafts accompanied by parcel post receipts; that said third person purchased the goods from the defendant who, at his request, forwarded them by parcel post to the plaintiff and delivered the parcel post receipts to the third person upon his representation that he would use the same to procure the money and bring the cash back to the 'defendant; and that said third person failed to pay for the goods and the defendant stopped the delivery thereof and reclaimed them.</p> <p>Held, that since the goods were shipped to the plaintiff before the alleged fraudulent representation was made by the third person to the defendant in reference to securing the money on the parcel post receipts, the goods were not delivered upon false representations which would permit the defendant to disaffirm the sale and reclaim the goods and there not being any evidence of a preconceived design by the third person not to pay for the goods, the defendant did not have the right to stop delivery, and furthermore, there is sufficient evidence to justify the finding that the goods were sold by the defendant to the third person on credit.</p> <p>Moreover, even if it be assumed that the goods were fraudulently procured by the third person, his title was not void but voidable merely at the option of the defendant provided such option was exercised before the transfer of the goods to the plaintiff, who was a bona fide purchaser for value and without notice; therefore, the defendant, not having complied with section 105 of the Personal Property Law prior to the transfer, is not entitled to stop the goods in transit and its doing so constituted conversion.</p> <p>The right of stoppage in transit which the defendant may have possessed against the third person was, under section 143 of the Personal Property Law, divested by the act of the defendant in transferring the goods to the plaintiff before repudiation and, in connection with the third person, destroying the safeguards which the plaintiff had imposed for its protection which made it possible for the third person to obtain from the plaintiff the purchase price of the goods. Merbbll, J., dissents.</p>

<p>Appeal by the defendants, E. Bayard Halsted 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 25th day of March, 1924, granting the plaintiff’s motion to set aside the judgment dismissing the complaint and to place the cause on the calendar for trial.</p>

Appeal by the plaintiff, Helen L. Keegan, 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 24th day of December, 1923, upon the decision of the court rendered after a trial at the New York Trial Term without a jury dismissing the complaint upon the merits.

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

<p>Appeal by the defendant, Louis Steinmetz, from a judgment of the Supreme Court rendered against him on the 15th day of March, 1922, convicting him of the crime of grand larceny in the first degree after a trial at the New York Trial Term.</p>

<p>Appeal by the plaintiff, Ellen Shaw Barlow, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of February, 1924, denjdng her motion for an injunction pendente lite in a taxpayer’s action. (See 122 Misc. Rep. 518; Gen. Mun. Law, § 51.)</p>

Appeal by the plaintiff, Sophia Rosenblum, as administratrix, 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 12th day of June, 1923, as denies her motion to dismiss the counterclaim in the answer, and also from so much of an interlocutory judgment in favor of the defendant entered in said clerk's office on the same day pursuant to said order as denies plaintiff's motion…

Appeal by the plaintiff, Bristol Manufacturing Corporation, 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 16th day of July, 1923, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint, with notice of intention to bring up for review on such appeal an order made at the New York Special Term and entered in said clerk’s office on the 23d…

<p>Contracts — consideration—plaintiff’s brother had margin account with defendants, stockbrokers, who asked for more margin — plaintiff transferred his own stock to his brother’s credit with defendants — defendants’ forbearance to close out brother’s account and their permitting him to continue trading was legal consideration.</p> <p>Legal consideration existed for the transfer of corporate stock from the plaintiff’s account with the defendant stockbrokers to the credit of plaintiff’s brother with the defendants, since it appears that at the time of the transfer the brother’s account was about to be closed out unless he could furnish more margin, and that the defendants on receipt of plaintiff’s stock to his brother’s credit, refrained from closing out the brother’s account, and in addition thereto permitted him to continue to trade with them on margin. The agreement whereby the stock was transferred resulted in a detriment to the defendants which is a legal consideration.</p>

Appeal by the defendant, Marc Klaw, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of July, 1923, upon the decision of the court rendered after a trial at the New York Trial Term without a jury.

<p>Appeal by the claimant, Theodore Minzesheimér, from certain parts of 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 March, 1923, sustaining objections filed by the city of New York to the report of commissioners of estimate in street-opening proceedings as to awards made for damage Nos. 4, 5, 5-A, 7 and 7-A in favor of the claimant, the grantee of the bed of a street; confirming said report except as to said damage awards; directing as to said awards the return of the report to the commissioners for revision and correction, and awarding nominal damages in place of $87,496 awarded by the commissioners, on the ground that there had been a complete dedication and acceptance of the land for a public street and that, therefore, it was subject to a permanent easement for street purposes.</p>

Appeal by the defendants, Annie Cohen and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of June, 1923, upon the verdict of a jury rendered by direction of the court.

<p>Fraudulent conveyances — action by receiver in supplementary proceedings to set aside transfer by judgment debtor to his wife — original judgment was secured in Pennsylvania on which judgment was secured by default in this State — fraud in procuring Pennsylvania judgment not good as defense — defenses which amplify denials that raised issues as to indebtedness at time of transfer, transfer of all property, and intent to defraud, stricken out as frivolous — defenses amounting to denials previously made stricken out under Rules of Civil Practice, rule 90 — defense of fraud in procuring New York judgment stricken out — defense of laches, Statute of Limitations not having run, is not available.</p> <p>In an action by a receiver in supplementary proceedings to set aside an alleged fraudulent transfer by a judgment debtor to his wife, a defense that the original judgment which was secured in Pennsylvania and on which a judgment was secured by default in this State, was obtained by fraud, should be stricken out as frivolous, since the defense of fraud cannot be raised in a collateral proceeding. The denials in the answers of the defendants having raised the issues of the indebtedness of the judgment debtor to the judgment creditor at the time of the transfer, the transfer by the judgment debtor to his wife of all of his property and the intent to defraud any creditors by that transfer, the separate defenses interposed which merely amplify the denials must be stricken out as frivolous. Defenses which amount practically to denials of the allegations of the complaint previously made must be stricken out under rule 90 of the Rules of Civil Practice which provides that denials of fact alleged in a complaint must not be repeated nor incorporated in a separate defense.</p> <p>The defense that the New York judgment which was recovered by default in a suit on the Pennsylvania judgment was recovered through conspiracy and fraud must be stricken out, since it is a collateral attack upon the New York judgment and there is no fact alleged showing fraud in the procuring of the judgment and no lack of jurisdiction is pleaded.</p> <p>The defense of laches based on the fact that the transfer in question occurred in December, 1920, and that this action was not commenced for several years thereafter, is not available, since it does not appear that the time fixed by the Statute of Limitations for the commencement of this action has run and the defendants have failed to show the existence of any extraordinary circumstances which require the application of the doctrine of laches.</p>

Appeal by the defendant, Frank W. Smith, 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 August, 1923, upon the verdict of a jury for $3,000, reduced by consent to $1,500, and also from an order entered in said clerk’s office on the 7th day of August, 1923, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — action to recover for injuries suffered by plaintiff when she tripped over door sill as she was leaving defendant’s store and fell — sill was five-eighths of an inch in height, of ordinary size and shape and not defective — defendant not liable — liability cannot be predicated on absence of platform outside door and level with floor.</p> <p>The defendant, the owner of a store, was not liable to the plaintiff for injuries that she suffered when she tripped on the door sill as she was leaving defendant’s store and fell, since it appears that the door sill was five-eighths of an inch in height and was uniform in size and shape and was not worn or defective in construction.</p> <p>Liability cannot be predicated on the ground that owing to the absence of a platform outside of the door, the plaintiff’s injuries were aggravated, since it is a mere matter of speculation whether or not the plaintiff’s injuries would have been less if there had been a platform outside the door and level with the floor of the store.</p>

Appeal by the defendant, James McCreery & 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 25th day of May, 1923, upon the verdict of a jury. The defendant appeals upon both the facts and the law.

<p>Appeal by the plaintiff, Elizabeth S. Stephens, 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 2d day of October, 1923, upon the decision of the court rendered after a trial at the Westchester Trial Term, dismissing the supplemental and amended complaint upon the merits, a jury having been waived at the close of the case.</p>

<p>Municipal corporations — zoning ordinance — mandamus to compel inspector of buildings of city of New Rochelle to permit erection of building—ordinance restricting number of families per acre is not authorized by General City Law, § 20, subd. 24, and is invalid — mandamus was properly granted.</p> <p>Section 12 of article 2 of the New Rochelle Zoning Ordinance of May 31, 1921, as amended, restricting the number of families that may lawfully be housed on an acre of ground or a fractional part thereof is not authorized by subdivision 24 of section 20 of the General City Law, and is invalid.</p> <p>Accordingly, a peremptory mandamus order was properly granted directing the inspector of buildings of the city of New Rochelle to issue a permit to the plaintiff for the erection of a building in that city, where all provisions were complied with, with the exception of the one relating to the number of families that may be housed on an acre of ground.</p>

<p>. Appeal by the defendant, Johan Ehrlich, from part of an order of the Supreme Court, made at the Queens Trial Term and entered in the office of the clerk of the county of Queens on the 10th day of March, 1924, directing service of a verified bill of particulars.</p>

Appeal by the defendants, John F. Erdmann 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 28th day of January, 1924, granting plaintiff’s motion to compel defendants to submit to an oral examination for the purpose of framing a complaint.

Appeal by the defendant, Nathan L. Doblin, 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 April, 1924, denying his motion to vacate a levy under a warrant of attachment.

Appeal by the defendants, Herman Leviten 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 September, 1923, granting plaintiff’s motion, made under rule 113 of the Rules of Civil Practice, for an order striking out the answer and for summary judgment, and also from the judgment in favor of the plaintiff entered in said clerk’s office on the 12th day of…

<p>Husband and wife — action by wife for separation — temporary alimony and counsel fees may be awarded under Civil Practice Act, § 1169, pending appeal from judgment in favor of wife, notwithstanding stay —• temporary alimony will be applied on permanent alimony granted in judgment if same is affirmed.</p> <p>Tn an action for separation brought by a wife, the court has the power under section 1169 of the Civil Practice Act to award temporary alimony and counsel fees to the plaintiff pending an appeal from a judgment in her favor, which awards her permanent alimony, notwithstanding all proceedings under the judgment were stayed pending the appeal; but the temporary alimony so awarded must be applied as payment pro tanto of the judgment in the event of affirmance.</p>

<p>Appeal by William Nelson Cromwell and others, as executors, etc., from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 2d day of November, 1923, amending an order entered in said Surrogate’s Court on the 3d day of March, 1922, upon an appeal from a prior order fixing a transfer tax, by substituting a new appraiser after an appeal to the Court of Appeals and remittitur thereon.</p> <p>Also an appeal by said executors from an order of said Surrogate’s Court, entered in the office of said Surrogate’s Court on the 2d day of November, 1923, as resettled by an order entered therein on the 3d day of November, 1923, denying their motion, made after such appeal to the Court of Appeals and remittitur thereon, to modify the original order fixing the transfer tax entered therein on the 27th day of May, 1920.</p>

<p>Appeal by the defendant, Oriental Navigation Corporation, 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 5th day of April, 1923, as denies its cross-motion for judgment on the pleadings dismissing the complaint.</p>

Appeal by the defendants, Anna O’Brien and another, from an order and determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 14th day of June, 1923, affirming a judgment of the Municipal Court of the City of New York, Borough of Manhattan, Ninth District, in favor of the plaintiff.

Appeal by the plaintiff, E. E. Smith Contracting 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 21st day of March, 1921, as resettled by an order entered in said clerk’s office on the 17th day of May, 1921, in so far as said order grants defendant’s motion to dismiss its complaint in reference to several so-called insurance claims, and also from a judgment entered in said…

Appeal by Henry R. Taylor and others, as executors and trustees, etc., and by Henry R. Taylor and another, individually, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 30th day of June, 1923, as resettled by an order entered therein on the 14th day of July, 1923, except in so far as said orders sustain certain grounds of their appeal to the surrogate from a prior order entered therein, as resettled,…

Appeal by the defendant, Malone Dairy Co., Inc., 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 6th day of February, 1924, granting the plaintiff’s motion for a special preference and setting the case down for the 3d day of March, 1924, in Trial Term, Part II.

<p>Appeal by the petitioner, John J. Tierney, 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 3d day of March, 1924, granting the defendants’ motion to dismiss the petition and denying the petitioner's motion for a mandamus order.</p>

<p>Appeal by the plaintiff, Emma T. Geldart, 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 18th day of February, 1924, upon the verdict of a jury rendered by direction of the court after a trial before the court, a jury having been dismissed by stipulation which provided that the court should direct a verdict with the same force and effect as if a jury were present, and also from an order made on the 8th day of February, 1924, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Burns Bros., from so much of 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 24th day of October, 1922, striking out the amended answer of defendant Burns Bros, and granting judgment in favor of the plaintiff and as grants judgment in favor of the defendants Andrew D. Baird and another for costs, and also from the judgment entered in said clerk’s office on the 27th day…

Appeal by Mary S. MacArthur, as executrix, etc., from parts of a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of said court on the 29th day of January, 1924, passing the final account of the Brooklyn Trust Company, as trustee under the will of Caroline A. Seymour, deceased.

<p>Motor vehicles — action to recover for injuries suffered in collision between plaintiff’s motorcycle and defendant’s automobile at street intersection — evidence evenly balanced — instructions — error to charge that question whether motorcycle has right of way could not be considered if it was found that both were not equidistant from intersection— evidence — error to reject testimony by defendant on cross-examination as to his knowledge of rules of road.</p> <p>In an action to recover for injuries suffered by the plaintiff in a collision between Ms motorcycle and defendant’s automobile at a street intersection in which it appeared that the defendant was turning from the street into a cross street at the time of the accident, it was error, especially as the evidence was very evenly balanced, for the court to charge in effect that the jury should not consider the question whether or not the plaintiff had the right of way, unless it found that the motorcycle and the automobile were equidistant from the street intersection and proceeding at substantially the same rate of speed for, notwithstanding those conditions may not have existed, the jury had the right to consider the right of way rule as fixed by the statute.</p> <p>It was error to exclude testimony on the part of the defendant on cross-examination as to his knowledge of the rules of the road applicable where two vehicles approach each other at intersecting streets, where he had already stated that he knew the rules.</p> <p>Kelly, P. J., and Kapper, J., dissent.</p>

<p>Appeal from an award of the State Industrial Board, made on February 15, 1923.</p>