Volume 215 — New York Reports

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 11, 1913, modifying and affirming as modified a judgment in favor of plaintiff 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>Inasmuch as the plaintiff in this action could not have been forced to take the property in an action for specific performance, if brought by the defendant Oussani, and inasmuch as the presence of mutuality in the agreement was dependent upon the happening of a subsequent event, which never took place, the plaintiff in the present action is not entitled to maintain an action for specific performance. (Levin v. Dietz, 194 N. Y. 376; Benedict v. Lynch, 1 Johns. Ch. 370; Clason v. Bailey, 14 Johns. 484; Wadick v. Mace, 191 N. Y. 1; Ide v. Brown, 178 N. Y. 26.) The contract before the court is not an option, but a contract dependent as regards its enforceability upon the happening of three events: (1) That the branch of the Longwood road-be legally closed; (2) that it be transferred to the road below; (3) that this be effected within a week. In view of the language that plaintiff shall be “ in no way obliged,” these events do not constitute a condition or lack of mutuality that can be waived. (Palmer v. Gould, 144 N. Y. 671; Lloyd v. Nowell, L. R. [2 Ch. Div. 1895] 746; Putnam v. Grace, 161 Mass. 237; Lighton v. City of Syracuse, 188 N. Y. 499; Corcoran v. White, 117 Ill. 118.) The plaintiff has not shown that the agreement sued upon, or the alleged waiver, or the.contract tendered pursuant to said agreement, or . the bond and mortgage tendered pursuant to said agreement, was authorized by the concurring vote of at least two-thirds of the whole number of the board of directors of the plaintiff, as required by section 13 of the Membership Corporations Law. (Dudley v. Congregation, 138 N. Y. 451; Beatty v. Marine Ins. Co., 2 Johns. 109.) The authority given by the board of directors to the president to sign and execute all documents is insufficient as evidence of authority to make a contract for the purchase of real estate, or to waive the conditions of any contract, or to execute any contract or a bond and mortgage. The authority is limited merely to signing documents in the ordinary course of the corporation’s business, and if the corporation wants to purchase property and authorize its president to do so, it must do so by clear and specifically expressed language. (Jacoby v. Pason, 91 Hun, 480; Holtsinger v. Nat. C. E. Bank, 6 Abb. [N. S.] 292; A. F. Ins. Co. v. Bay, 4 N. Y. 1; Porges v. U. S. M. & T. Co., 203 N. Y. 181; Craighead v. Peterson, 72 N. Y. 279.)</p> <p>The contract in question is an obligation, binding on both parties, specific performance of which can be enforced. (Pomeroy on Spec. Perf. [2d ed.] 241, 242, § 173; Clark v. West, 193 N. Y. 344; Baldwin v. McGrath, 90 App. Div. 199; Hellmann v. City Trusts S. D. & S. Co., 111 App. Div. 879; 132 App. Div. 151; Birkett v. Nichols, 184 N. Y. 315; Arnold v. Union Salt Co., 186 N. Y. 501; Thompson v. Poor, 147 N. Y. 402; Barnett v. Sussman, 116 App. Div. 859; Toplitz v. Bauer, 161 N. Y. 325.) The question raised by appellant as to the authority of the president of the plaintiff to make the contract was not pleaded, and cannot now be raised by appellant. Such authority was sufficient and was recognized by the corporation. (Gordon Malting Co. v. Bartels Brewing Co., 206 N. Y. 528.)</p>

The action was brought to have declared invalid and void a sale of the interest of the plaintiffs in premises in the complaint described, pursuant to an interlocutory judgment entered July 2, 1883, in an action brought by Gabrielle M. Greeley against Nicholas Smith and others, and that the decision, judgment and all proceedings in that action and the order confirming the sale made pursuant to said interlocutory judgment therein so far as they affect the plaintiffs in this…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 14, 1914, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The making of the representations by the defendants, knowledge of their falsity, and actual intent to deceive and defraud, must be established and found. (Taylor v. Comcl. Bank, 174 N. Y. 181; Kuelling v. Lean Mfg. Co., 183 N. Y. 78; Hotchkin v. T. Nat. Bank, 127 N. Y. 329; Brackett v. Griswold, 112 N. Y. 454; Wakeman v. Dalley, 51 N. Y. 31; Bell v. James, 128 App.

The facts, so far as material, are stated in the opinion. To hunt and fish without interference on these lands ceded qualifiedly to Morris was a right as fully secured as was exclusive enjoyment of the several parcels on which the Senecas-expected to dwell.

<p>(1.) Statutes—Repeal of, by implication not favobed by law.</p> <p>Repeal of a statute by implication is not favored, and a statute will not be deemed to have been repealed by a later statute if the two are not clearly repugnant, unless the intent so to do is clearly indicated.</p> <p>(2.) Same—When courts will sustain two statutes even though .THEY COVER SUBSTANTIALLY THE SAME OFFENSE.</p> <p>Penal statutes even though they cover substantially the same offenses may stand together. (Penal Law, § 1938.) Where, as in section 2500 of the Penal Law, the legislature has said that no provision of a particular act shall be deemed repealed, altered or amended by the passage of any subsequent statute inconsistent therewith, unless such statute shall explicitly refer thereto and directly repeal, alter or amend the same, the courts will not construe a subsequent statute as repealing, altering or amending such former statute unless the intent so to do is clear and unmistakable.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 30, 1914, affirming a judgment in favor of defendants, respondents, entered upon a dismissal of the complaint as to them by the court at a Trial Term. The nature of. the action and the facts, so far as material, are stated in the opinion.

<p>Evidence — action to recover damages for causing death — burden of proof of contributory negligence — effect of section 841-b of Code of Civil Procedure.</p> <p>1. Section 841-b of the Code of Civil Procedure (enacted by L. 1913, eh. 395, to take effect September 1,1913), relating to the “ Trial and burden of proof of contributory negligence,” which provides that “ On the trial of any action to recover damages for causing death, the contributory negligence of the person killed shall be a defense, to be pleaded and proven by the defendant,” establishes a rule of evidence and order of proof, which was subject to modification and control by the legislature and applicable upon the trial of then existing actions. It operates only as a change of procedure and applies to an action to recover damages for death, although the accident causing death and the commencement of the action antedated the enactment of the statute.</p> <p>2. Such change in order of proof does not operate to permit a plaintiff to recover in an action for death resulting from an accident unless the proximate cause of the accident was the negligence of the defendant.</p> <p>3. Plaintiff’s intestate, employed in an office on the sixteenth floor of an office building, met her death by falling down an elevator shaft. On leaving the office she turned to the left to the elevator which was on the same side of the hall and a few feet from the office. She was heard to call “Down, Sixteen” and then to scream. There was evidence which would justify a finding by a jury that the elevator had passed down; that the door to the elevator shaft had been left wide open; that the lock on the door was not such as was in common use, and that there were better and well-known appliances in use for locking elevator doors. Held, that it was error for the trial court to dismiss the complaint at the close of plaintiff’s case on the ground that, as matter of law, “the deceased walked into an open elevator shaft in daylight, and, therefore, was guilty of contributory negligence. ” (Greif v. Buffalo,, Lookport & Rochester By. Co., 205 N. Y. 239, distinguished.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was negligent; its negligence resulted in its failure to receive the money on the note and in the defendants suffering damage in the amount thereof. (Shipsey v. Bowery Nat.

<p>Contract — action for breach.—measure of damages — when manufacturer not bound to continue performance — evidence of trade usage and custom.</p> <p>1. In an action to recover for breach of an agreement by which plaintiff was to manufacture and deliver paper board at certain times, for specified purposes and of the quantity specified, and the defendant undertook to purchase the manufactured article and pay for the same to the extent disclosed in the contract, the measure of damages is the difference between the contract price the defendant agreed to pay and the actual cost to the plaintiff of producing the article in question — in other words, the profit which would accrue to plaintiff had the contract been fully executed. The fact that plaintiff’s mill was continually in operation does not deprive the plaintiff of the value of its contract, a breach of which was caused by defendant.</p> <p>2. Where the purchaser has refused to perform before the goods are manufactured, the manufacturer is not bound to continue performance; but can after the breach recover the profit which he would have made.</p> <p>3. Evidence on the part of the plaintiff to show that there was a trade usage as to variation and thickness of paper was admissible, not for the purpose of contradicting the express terms of the contract, but rather to show a trade usage and custom in the manufacture of goods.</p> <p>4. Authorities on the question of damages for breach of contract collated and considered.</p>

The facts, so far as material, are stated in the opinion. It was the duty of the commissioners of estimate, in appraising the appellants’ damages, to have taken into consideration all the street or public uses specifically or impliedly authorized by law at the time title was acquired in fee by the city of New York, to which the new street might or could be devoted on or after the acquisition of title. (Lewis on Em.

<p>Appeal from a judgment of the Supreme Court rendered May 29, 1914, at a Trial Term for the county of New York upon a verdict convicting the defendant of the crime of murder in the first degree. Also appeal from an order of said court, entered February 26, 1915, denying defendant’s motion for a new trial on the ground of newly-discovered evidence.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Defendant’s guilt was not established beyond a reasonable doubt but the verdict is against the overwhelming weight of the evidence and is thus contrary to law. (People v. Fitzgerald, 156 N. Y. 263, People v. Patrick, 182 N. Y. 131; Moller v. Moller, 115 N. Y. 466; Matter of Cross, 85 Hun, 357; People v. Ledwon, 153 N. Y. 10; People v. Razezicz, 206 N. Y. 249.) The prosecution having failed to establish defendant’s guilt beyond a reasonable doubt, the verdict of guilty, being hopelessly against the weight of the evidence, is contrary to law and cannot stand. (People v. Corey, 157 N. Y. 332; People v. Farmer, 196 N. Y. 65; People v. Ledwon, 153 N. Y. 10; People v. Raffo, 180 N. Y. 434.) The conviction was had upon testimony of accomplices without corroboration by any other evidence tending to connect defendant with the commission of the crime, and is thus contrary to law. (People v. Farrell, 175 N. Y. 323; People v. Page, 162 N. Y. 272; People v. Kathan, 136 App. Div. 303; People v. Plath, 100 N. Y. 590; People v. Bissert, 71 App. Div. 118; People v. Butler, 62 App. Div. 508; People v. Courtney, 28 Hun, 589; People v. Josephs, 143 App. Div 534.) The admission of the alleged statement of Dago Frank in the hearing of Shapiro, just before the murder, in •defendant’s absence, was highly prejudicial and constitutes reversible error. (People v. Kathan, 136 App. Div. 303; Ormsby v. People, 53 N. Y. 472: People v. Friedman, 205 N. Y. 181; People v. Conrow, 200 N. Y. 356; People v. Koerner, 154 N. Y. 355; People v. Razezicz, 204 N. Y. 249; People v. Smith, 172 N. Y. 210; People v. Helmer, 154 N. Y. 596; Coleman v. People, 58 N. Y. 555.) The rulings of the court on the cross-examination of Rose, in declining to strike out answers not .responsive to the questions, and in excluding evidence which would establish that Rose changed his testimony on this trial about alleged conversations over the telephone in order to overcome the criticisms of this court on the former appeal, were erroneous and highly prejudicial to defendant. (Cannon v. Fargo, 138 App. Div. 20; 147 App. Div. 51; 158 App. Div. 290; Brennan v. City of New York, 130 App. Div. 267.) The admission of self-serving declarations of Webber to the district attorney in defendant’s absence and after the murder was reversible error. (People v. Schlessel, 196 N. Y. 476.) The admission of the testimony of Lefty Louie’s widow of an alleged conversation, which she claims to have overheard between Rose and Lefty Louie, in defendant’s absence, was highly prejudicial and constitutes reversible error. (People v. Kathan, 136 App. Div. 303; Qrmsby v. People, 53 N. Y. 472; People v. Friedman, 205 N. Y. 161; People v. Maine, 168 N. Y. 50.) The admission of the testimony of Lefty Louie’s widow, of alleged occurrences in her Seventh avenue apartment, on the evening after the murder, in defendant’s absence, respecting a division of money among the gunmen, was highly prejudicial, and constitutes reversible error. (People v. Razezicz, 206 N. Y. 270.) The admission of anoymous complaints received at police headquarters, charging defendant with protecting Rosenthal’s gambling house and receiving money for such protection, was highly prejudicial, and constitutes reversible error. (People v. Freedman, 203 N. Y. 267; People v. Fitzgerald, 156 N. Y. 253.) The exclusion of the dying statement of Dago Frank to Father Cashin, Thomas F. Mclnerney and his mother and sister, all present with him, immediately before his electrocution, that so far as he knew defendant had nothing to do with the murder, was highly prejudicial and constitutes reversible error. (People v. Falletto, 202 N. Y. 494; People v. Schiavi, 98 App. Div. 479; Donnelly v. United States, 228 U. S. 248; People v. Giro, 197 N. Y. 152.) The exclusion of the jury from the court room, over defendant’s objection, during defendant’s offer of proof of the Dago Frank confession, and the discussion of its admissibility, was reversible error. (People v. Cancemi,. 18 N. Y. 128; People v. Randazzio, 194 N. Y. 147; Maurer v. People, 43 N. Y. 1; People v. Palmer, 43 Hun, 897.) The exclusion of testimony from the auditor of disbursements of the district attorney’s office, which would have established that Moe Cohen, a material witness whom the People failed to call, had been drawing a salary from the district attorney’s office and was under the district attorney’s control, was highly prejudicial to defendant and constituted reversible error. The ex- ■ elusion of similar testimony respecting Schepps was also erroneous. (People v. Leonardo, 199 N. Y. 432.) The court erred in refusing to permit defendant’s counsel to frame questions to-People’s witness Rose in the identical form which was allowed to the district attorney in his cross-examination of defendant’s witnesses, thus depriving defendant of a scrupulously fair and impartial trial. (People v. Criscuoli, 164 App. Div. 119.) The flagrant and repeated injection of incompetent, extraneous, matters, unsupported by any proof, into the case, by the district attorney in his opening and summing up, and throughout the course of the trial, were highly prejudicial to defendant and deprived him of a scrupulously fair and impartial trial. (People v. Wolf, 183 N. Y. 464; People v. Fielding, 158 N. Y. 542; People v. Smith, 162 N. Y. 520; People v. Hinksman, 192 N. Y. 421; People v. Mull, 167 N. Y. 247; People v. Pisano, 142 App. Div. 524; People v. Smith, 55 App. Div. 868; People v. Greenwall, 115 N. Y. 520; People v. Smith, 182 N. Y. 210; People v. Wennerholm, 166 N. Y. 582; People v. Helmer, 154 N. Y. 596; People v. Cascone, 185 N. Y. 817.) The charge-was unfair, erroneous and highly prejudicial in many respects. (People v. Razezicz, 206 N. Y. 249; People v. Barberi, 149 N. Y. 256; People v. Tuczkewitz, 149 N. Y. 240; Allison v. United States, 160 U. S. 208; People v. Barone, 161 N. Y. 451; People v. Speski, 57 App. Div. 91.)</p> <p>The corroboration of the accomplices was sufficient. (People v. Conroy, 97 N. Y. 62; People v. Place, 157 N. Y. 584; People v. Willett, 213 N. Y. 368; People v. Hooghkerk, 96 N. Y. 149; People v. Ammon, 92 App. Div. 205; 179 N. Y. 540; People v. Ryland, 97 N. Y. 126; 28 Hun, 568; People v. Jaehne, 103 N. Y. 182; People v. Everhardt, 104 N. Y. 591; People v. Elliott, 106 N. Y. 288; People v. Terwilliger, 142 N. Y. 629.) Defendant’s contention that the district attorney “ staged ” this trial in such a way that the defendant was prejudiced from the outset cannot be sustained, in view of the fact that defendant’s counsel, at the trial, expressed appreciation of its fairness. (People v. Cummins, 206 N. Y. 283; People v. Seidenshner, 210 N. Y. 341.) Objections that matters were permitted to be proved that happened in the absence of the defendant are frivolous. (People v. Seidenshner, 210 N. Y. 341.) Mrs. Rosenberg’s testimony as to the division of the money was relevant. (People v. Storrs, 207 N. Y. 147.) The anonymous Iettesrs were an inseparable part of the history of the case, and, as such, were properly received. (People v. Willett, 213 N. Y. 868; Lawlor v. Loewe, 235 U. S. 522.) There was no error in limiting the scope of Rose’s cross-examination. It is well settled that the extent of cross-examination is discretionary with the trial judge. (G. W. Tpk. Co. v. Loomis, 82 N. Y. 127; White v. McLean, 57 N. Y. 670; Langley v. Wadsworth, 99 N. Y. 61; People v. Braun, 158 N. Y. 558.) The trial court properly excluded Dago Frank’s dying statement. (People v. Greenfield, 85 N. Y. 75; Brown v. State, 37 L. R. A. [N. S.] 845; Donnelly v. United States, 228 U. S. 243; People v. Hall, 94 Cal. 596; Tillman v. State, 166 S. W. Rep. 582; Snow v. State, 58 Ala. 875; People v. Davis, 56 N. Y. 95.) The exclusion of the jurors from the court room was proper. (People v. Smith, 104 N. Y. 491.) Reversible error cannot be predicated on alleged misconduct of the district attorney. (Chesebrough v. Conover, 140 N. Y. 382; Cattano v. M. S. Ry. Co., 173 N. Y. 565; Schultze v. Huttlinger, 150 App. Div. 489; People v. Collins, 206 N. Y. 668; People v. Muehlfeldt, 200 N. Y. 550; People v. Doody, 177 N. Y. 165; People v. Wagner, 180 N. Y. 58; People v. Smith, 180 N. Y. 125; People v. Gillette, 191 N. Y. 107; People v. Poulin, 207 N. Y. 73; People v. Cummins, 209 N. Y. 283; People v. Hartigan, 216 N. Y. 144.) .</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 4, 1914, affirming a determination of the Appellate Term which affirmed a judgment of the Municipal Court of the city of New York in favor of defendant dismissing the complaint. 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. By reason of the proceedings had under the indictment for manslaughter relator was put in jeopardy for the offense charged in the murder indictment. Therefore, a trial under the latter indictment would be in violation of the Constitution. (N. Y. Const, art. 1, § 6; People ex rel.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 1, 1913, affirming a judgment in favor 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. The recovery of a judgment in the Enquirer case is not a bar to the prosecution of this case.

The nature of the action and the facts, so far as material, are stated in the opinion. The case was submitted to the jury upon an erroneous charge excepted to by the plaintiffs. (Hoffman v. King, 160 N. Y. 618; Webb v. R., W. & O. R. R. Co., 49 N. Y. 420; O’ Neil v. N. Y., O. & W. R. R. Co., 115 N. Y. 579; Van Inwegen v. P. J. R. R. Co., 165 N. Y. 625.) • The case was properly submitted to the jury and no exception was taken by the plaintiffs except to the amount of damages.

<p>Sale — replevin — facts regarding sale and delivery of goods examined, and held, that title passed and that seller cannot replevin goods after bankruptcy of buyer.</p> <p>Defendant sold and delivered store fixtures to a customer who coin- . plained because there was delay in delivery and non-compliance with the contract, demanded a reduction in price and suggested a compromise, stating that pending a compromise the fixtures would not be accepted. Defendant refused to compromise or take back the fixtures and several times demanded payment. The purchaser became bankrupt and a receiver, who afterward became trustee, took possession of the fixtures with other property of the bankrupt and used them in the business. Thereafter they were sold, with other assets of the bankrupt, and the plaintiff herein became the purchaser. Later this defendant in an action of replevin, to which the receiver was a party, obtained possession of the fixtures. The United States Supreme Court on appeal by the receiver held that the State court had no jurisdiction, upon the ground that when the action was begun the fixtures were-in the custody of the court of bankruptcy, hence the question of title thereto was not determined. While that action was pending the defendant resold the fixtures to another. The purchaser at the bankruptcy sale brings this action for the conversion of the fixtures. Held, that the fixtures had been delivered to the original purchaser and title had passed upon delivery. The seller refused to retake the goods and demanded payment and thus elected to confirm the title already vested in the buyer, and upon the buyer’s bankruptcy its receiver continued the use of the fixtures, accepted the same as part of the estate and maintained the bankrupt’s ownership thereof. Hence the defendant’s claim of title cannot be sustained.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The check was paid when the balances in the Clearing House were paid, at half-past one o’clock on January 19, 1910, and the defendant was not thereafter liable thereon. (Nat. Union Bank v. Earle, 93 Fed. Rep. 330; Morse on Banks & Banking, § 449; Nat. Park Bank v. Ninth Nat. Bank, 46 N. Y. 77; Title G. & T. Co. v. Haven, 126 App. Div. 802; Chambers v. Miller, 3 F. & F. 202; Nat.

The action is in foreclosure. The findings show that in 1884 one Nelson Woodward was the owner of a farm in Erie county, which, on September Uth of that year, he conveyed to William H. Blakely for $1,500, $500 being paid in cash and $1,000 secured by a mortgage on the .farm.

Hoffman, deceased. The controversy raised by the objections is precisely within the provisions of sections 2731 and 2472 of the Code of Civil Procedure in effect prior to September 1, 1914. (Matter of Adams, 51 App. Div. 619; Matter of Westerfield, 32 App. Div. 324; Matter of Arkenburgh, 58 App. Div. 583; Matter of Archer, 51 Misc. Rep. 260; Matter of Ammarell, 38 Misc. Rep. 399; Matter of Niles, 142 App. Div. 198; Matter of Perry, 129 App. Div. 587; Sexton v. Sexton, 64 App.

' The nature of the action and the facts, so far as material, are stated in the opinion. There was no mutual mistake justifying reformation of the policy. (Hearne v. Marine Ins. Co., 20 Wall. 488; Mackenzie v. Coulson, L. R. [8 Eq. Gas.] 368; Heilbrunn v. G. A. Ins. Co., 202 N. Y. 610; Southard v. Curley, 134 N. Y. 148; Burt v. Quackenbush, 72 App. Div. 547; 175 N. Y. 490; Lake View Brewing Co. v. Commerce Ins. Co., 143 App. Div. 656; 207 N. Y. 746; Mead v. W. F. Ins.

<p>Associations — labor unions — United Association not liable, in absence of bad faith, for erroneous disposition of appeal —action "hot maintainable under section 1919 of Code of Civil Procedure' unless maintainable against all members of associatipn—bonstitutioiS'and by-laws construed — penalties.</p> <p>1. Dhe members of the executive board of an association consisting of a large number op]ocal unions are not, nor is the association which they represent, hable, in the absence of bad faith, for an erroneous decision by that board upon the appeal of a member from the action of a local union.</p> <p>2. The plaintiff having been expelled fróin a"local, labor union appealed to the executive board of the United .Association which confirmed the action of the local union.-1 He- -thereupon brought this action, under section 1919 of the Code of Civil Procedure, to recover damages. Held,, that the action cannot be maintained in its present form, it being essential to aright of recovery under that section that the cause of action be one which might be maintained against all of the members of the United Association.</p> <p>3. Provisions of the by-laws of the United Association and of the constitution of the local union construed, and held, that the local’s right to determine the penalty imposed upon the plaintiff was eonferred upon and was not limited by the constitution and by-laws, in case of an offense such as that with which the plaintiff was charged.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1913, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the trial court at a Trial Term without a jury.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>This is purely an action for conversion, and, unless the rights of the parties were altered by the filing of the petition in bankruptcy the cause of action arose on and not before March 21, 1910, when the plaintiff’s note matured and he tendered payment and demanded his securities, but the defendants failed to return them. (Lawrence v. Maxwell, 53 N. Y. 19; Castle v. Corn Exchange Bank, 148 N. Y. 122; Williamson v. Seely, 22 App. Div. 389; Chankalian v. Powers, 89 App. Div. 395; Logan County v. Townsend, 139 U. S. 67; MacDonnell v. Buffalo L. T., etc., Co., 193 N. Y. 92; Oregon & Transcontinental Co. v. Hilmers, 20 Fed. Rep. 717; Cohnfeld v. Walsh, 2 App. Div. 190; Rothschild v. Allen, 90 App. Div. 233; Byrne v. Weidenfeld, 113 App. Div. 451; Katz v. Diamond, 16 Misc. Rep. 577.) The defendants’ discharge in bankruptcy does not affect the plaintiff’s cause of action unless such cause of action existed at the date of the filing of the petition in bankruptcy, February 1, 1910. (Matter of Burka, 5 Am. Bank. Rep. 12; Matter of Garlington, 8 Am. Bank. Rep. 602; Swarts v. Fourth Nat. Bank, 8 Am. Bank. Rep. 673; Matter of Adams, 12 Am. Bank. Rep. 368; Matter of Reading Hosiery Co., 22 Am. Bank. Rep. 562.) The filing of the petition in bankruptcy made no such change in the relations of the parties as to bring into existence a claim in favor of the plaintiff against the defendants as a debt existing on the day the petition -was was filed. (Lawrence v. Maxwell, 53 N. Y. 19; Matter of Neff, 157 Fed. Rep. 57; Matter of Swift, 112 Fed. Rep. 315; Matter of Pettingill, 137 Fed. Rep. 143; Phenix Nat. Bank v. Waterbury, 197 N. Y. 161.) Even if the conversion occurred before the filing of the petition in bankruptcy, the claim was not discharged because in that event it was a liability for willful and malicious injury to plaintiff’s property within subdivision 2 of section 17 of the Bankruptcy Act. (Kavanaugh v. McIntyre, 210 N. Y. 175; Tinker v. Colwell, 193 U. S. 473; McChristal v. Clisbee, 16 Am. Bank. Rep. 838; Flanders v. Mullin, 18 Am. Bank. Rep. 708; McDonald v. Brown, 10 Am. Bank. Rep. 58; Matter of Munro, 195 Fed. Rep. 817; 197 Fed. Rep. 450; Parker v. Brattan, 120 Md. 428; Hallagan v. Dowell, 139 N. W. Rep. 883.)</p> <p>Upon the facts pleaded and proven, the plaintiff failed to establish a right of action for conversion. (Salt Springs Nat. Bank v. Wheeler, 48 N. Y. 492; McMorris v. Simpson, 21 Wend. 610; Sternberg v. Schein, 63 App. Div. 417; Acme Harvester Co. v. Beekman Lumber Co., 222U. S. 300; Remington on Bankruptcy [2d ed.], 1692, § 1807; Guaranty Trust Co. v. Todd, 170 N. Y. 233.) The plaintiff had a provable claim against the defendants’ estate -under subdivision 4 of section 63a of the Bankruptcy Act, on the ground that'it was “founded upon an open account, or upon a contract express or implied.” (Crawford v. Burke, 195 U. S. 176; Fechter v. Postel, 114 App. Div. 776; Maxwell v. Martin, 130 App. Div. 80.) The claim arising under subdivision 4, section 63a, became fixed at the time of the filing of the petition in bankruptcy, February 1, 1910, and was, therefore, provable. (Cortelyou v. Lansing, 2 Caines’ Cas. 200; Jones on Pledges [3d ed.], § 748; Cooley on Torts [2d ed.], 532; Woolner v. Hill, 93 N. Y. 576; Kelsey v. Griswold, 6 Barb. 436; MacDonnell v. Buffalo L., T. & S. D. Co., 193 N. Y. 93; Matter of Swift, 112 Fed. Rep. 315; Nichols v. Scranton Steel Co., 137 N. Y. 471; Windmuller v. Pope, 107 N. Y. 674; Kelly v. Insurance Co., 186 N. Y. 16; Ferris v. Spooner, 102 N. Y. 10; Union Ins. Co. v. Central Trust Co., 157 N. Y. 643.) Defendants were not guilty of willful and malicious injury to property. (Kavanaugh v. McIntyre, 210 N. Y. 175; Tinker v. Colwell, 193 U. S. 473.)</p>

The facts, so far as material, are stated in the opinion. The error of the court as to burden of proof was substantial and not technical; likewise its error as to the. presumption to be drawn from long-continued voluntary collection of a rate lower than that ordered by the commission. It went to the whole character of the review which the commission’s order was subjected to by the court. (S. & N. A. R. Co. v. R. R. Comm., 210 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The notices mailed to the insured in this case complied with all the requirements of the statute. (Cons. Laws, ch. 28, §92; Schad v. S. M. L. Assn., 11 App. Div. 487; Trimble v. N. Y. L. Ins. Co., 20 Wash. 386; N. L. Ins. Co. v. Meinert, 199 U. S. 171; Schnell v. Mutual Life Ins. Co., 53 App. Div. 172; Summitt v. Ins. Co., 123 Ia. 681; S. T. & L. Ins. Co. v. Hallum, 32 Tex.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1911, which affirmed an order of Special Term overruling a demurrer to the complaint. The following questions were certified: “1. Does the complaint state facts sufficient to constitute a cause of action ? 2. Has the court jurisdiction of the subject-matter of the action ? 3.

Motion to dismiss an appeal from a judgment of the Supreme Court rendered February 9, 1912, at a Trial Term for the county of Yates, upon a verdict convicting the defendant of the crime of murder in the first degree. The motion was made upon the ground of failure to prosecute the appeal.

<p>Appeal — reversal of judgment by Appellate Division —when it must be assumed that reversal was on the law, the Court of Appeals is bound by findings of trial court — railroads — action to restrain alleged nuisances of railroad in maintenance of its tracks and operation of its trains — relative rights of railroad company and of adjacent property owners.</p> <p>1. When the Appellate Division reverses a judgment but does not specify that such reversal is on the facts and it does not make any new finding of fact, it must be assumed that the reversal was on the law, and this court is bound by the findings made by the trial court if supported by the evidence and unimpeached by any erroneous rulings. (Code Civ. Pro. § 1338.)</p> <p>2. Railroads constructed and operated for the public use are not subject to actions in behalf of neighboring property owners for the ordinary damages attributable to the operation of the railroad in the absence of negligence. The immunity is limited to such damages as naturally and unavoidably result from the proper conduct of the road. It includes the noises and vibrations incident to the running of trains, the necessary emission of smoke and sparks from the locomotives and similar annoyances inseparable from the normal and non-negligent operation of a railroad.</p> <p>3. This immunity exists so long as the acts of a railroad company in carrying on its business in and about its yards are not shown to be negligently done or to be outside the range of operations necessary or reasonably incidental to the proper operation of its road in a situation which lawfully exists. But when it is found that the acts complained of were injurious and were not necessarily or reasonably incidental to the operation of a railroad at the point in question, but could be performed elsewhere, a right to relief arises in favor of the injured property owner.</p> <p>4. Pacts examined and the foregoing rules applied in an action brought by a property owner and resident in the neighborhood of defendant’s yard and tracks to restrain alleged nuisance in the maintenance of its tracks and operation of its trains, and, held, (1) that the habitual and indefinite storing of live stock cars outside its freight yard and near the plaintiff’s residence should be enjoined; (2) that the use by the defendant of its through tracks for the purpose of separating and classifying cars intended for its other yards was not reasonably incident to the operation of the yard at the point in question; (3) that the railroad company, having the right, expressly found against the plaintiff, to maintain and operate its freight yard, was justified in any use of its tracks at their junction with said yard which was reasonably incidental to that lawful situation and to the proper maintenance and usé of its yard although the method of operation involved accompanying noises; (4) that defendant’s rules which required outgoing engines to be supplied with enough anthracite coal to carry them some distance beyond the point in question and that the fires on incoming engines should be banked above that point and no smoke or cinders emitted, are sufficient under ordinary circumstances and that the company should be held to the observance of those regulations.</p>

The facts, so far as material, are stated in the opinion. The confession of the defendant obtained at the coroner’s inquest was improperly admitted in evidence because it appeared on its face: (a) That it was involuntary and (b) that it was not taken in conformity with the statute.

The nature of the action and the facts, so far as material, are stated in the opinion. The privilege and license which the agreement in suit contemplated giving the defendant cannot be enforced without violating the law. Such agreement, therefore, is illegal and without consideration. (Bridger v. Pierson, 45 N. Y. 600; Blackman v. Striker, 142 N. Y. 555; W. A. Segar Co. v. Salomon, 109 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in granting defendant’s motion for a nonsuit, (Onesti v. C. N. E. R. R. Co., 121 App.

The facts, so far as material, are stated in the opinion. The award by the state workmen’s compensation commission to Thomas Petrie of two-thirds of his weekly wages for twelve and one-half weeks as for the loss of his third finger was, in view of the facts found by the commission, unauthorized by the Workmen’s Compensation Law. (L. 1918, ch. 816, § 15.) The Workmen’s Compensation Law being in derogation of the common law, should be strictly construed.

The facts, so far as material, are stated in the opinion. The writ of prohibition lies. It is the only remedy or at least the only adequate remedy. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Hummel v. Trial Term, 184 N. Y. 30; People ex rel, Ballin v. Smith, 184 N. Y. 96; People ex rel. Duryee v. Duryee, 188 N. Y. 440; People ex rel. Keator v. Moss, 6 App. Div. 414; N. Y., L. & W. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment of the Appellate Division is not based upon any findings of fact. (Code Civ. Pro. § 1317; Bonnette v. Molloy, 209 N. Y. 167.)

Appeal, in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 7, 1915, which modified and affirmed as modified an order of Special Term granting a writ of peremptory mandamus in a proceeding instituted under section 381 of the Election Law. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The Westchester County Tax Act is invalid in that it violates section 2, article 10 of the Constitution of the state of New York, known as the home rule provision of the Constitution. (People ex rel. Bush v. Houghton, 182 N. Y. 301; People v. Raymond, 37 N. Y. 428; People v. Draper, 15 N. Y. 522; People ex rel. Albertson v. Bolton, 55 N. Y. 50; People ex rel. Met. St. Ry.

The facts, so far as material, are stated in the opinion. The dismissal of the relator was not subject to review by the courts. (L. 1901, ch. 466, § 406; L. 1905, ch. 648; People ex rel. Scheel v. Guilfoyle, 65 App. Div. 498; People ex rel. Hillman v. Scholer, 94 App. Div. 282; 179 N. Y. 602; People ex rel. Wilson v. Miller, 150 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 4,1914, which affirmed an order of Special Term denying a motion by plaintiff for judgment on the pleadings. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion. Defendant as indorser is not entitled to set off his deposit balance unless the maker is insolvent.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff had a clear right to have the truth of Graham’s statement passed on by the jury, which was at liberty to discredit it. (Elwood v. West. Union Tel.

The facts, so far as material, are stated in the opinion. The court erred in admitting in evidence as against the appellants the testimony of the witness Thomas Lynch concerning a telephone conversation alleged to have taken place between Lynch and the appellant Dunn relative to placing Fogarty in charge of the work of state road No. 91, and in admitting in evidence a letter purporting to have been written by the appellant Dunn to Lynch.

The nature of the controversy and the facts, so far as material, are stated in the opinion. The removal of any portion of the structure was never contemplated by the parties, nor provided for in the lease or otherwise.' (City of New York v. U. S. Steel Co., 116 App. Div. 349.) It was the clear intention of the parties to this lease to impose upon the tenant an expense of this character. (Brokaw v. Sherry, 161 App.

Gross-appeals from an order of the Appellate Division j)f the Supreme Court in the fourth judicial department, entered March 3, 1915, which modified and affirmed as modified an order of Special Term in certiorari proceedings to review a special franchise assessment against the relator for the year 1909. The facts, so far as material, are stated in the opinion.

Townsend, deceased. The facts, so far as material, are stated in the opinion. The surrogate has no jurisdiction to make such an order as the Appellate Division directs. (Code Civ.

Hodges, deceased. The facts, so far as material, are stated in the opinion. The construction of the Transfer Tax Statute, section 221a, by the courts below violates the plain intent of the law. (Matter of Hodges, 86 Misc. Rep. 367; Matter of Thompson, 87 Misc. Rep. 539; Matter of Harbeck, 161 N. Y. 211; People ex rel.

The facts, so far as material, are stated in the opinion. The change of relator to the position of “clerk’’from that of “ stenographer ” was not a promotion, and, under the statute and the rules, did not require an examination.

The nature of the action and the facts, so far as material, are stated in the opinion. The case should have been submitted to the jury upon the theory that the master had failed to supply the plaintiff a safe place to work. (Connelly v. H. & G. Const. Co., 192 N. Y. 182; Pantzar v. T. F. I. M. Co., 99 N. Y. 368; Palmijiano v. Hyde-McFarlin Co., 126 App. Div. 221; 194 N. Y. 524; Glennon v. Star Co., 130 App. Div. 491; 197 N. Y. 597; McGovern v. C. V. Ry.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 16, 1914, which affirmed an order of the Suffolk County Surrogate’s Court assessing a transfer tax.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The manifest intention of the law was to treat transfers as testamentary which either possessed the ambulatory characteristics of a will (like the trust deed herein of the 655 shares) or where the transfer was not absolute. They are in substance testamentary dispositions which take effect at death, are taxable under the statute in force at that time and consequently the aggregate of such transfers, effective at death whether by will, gift causa mortis, grant or gift in contemplation of death, should be aggregated and not segregated in levying the death duties. (Matter of Buckingham, 106 App. Div. 13; Matter of Howe, 86 App. Div. 286; 176 N. Y. 570; Billings v. People, 189 Ill. 472; Ayers v. Title & Trust Co., 187 Ill. 42; Matter of Graves, 242 Ill. 212; Nat. S. D. Co. v. Stead, 250 Ill. 584; McCurdy v. McCurdy, 83 N. E. Repr. 881; Matter of Seaman, 147 N. Y. 69; Matter of Euston, 113 N. Y. 174; Matter of Palmer, 117 App. Div. 360; Matter of Swift, 137 N. Y. 77.)</p> <p>The surrogate properly determined that under the statute governing taxable transfers in force at the time of the death of the maker of the trust the sum representing the cash value of stock conveyed by the trust deed should not be added to any sum or sums passing to the same persons under the will of the said maker of the trust deed, but that the tax should hi all respects be assessed against the several beneficiaries under the trust deed as property derived from an instrument entirely distinct from the will. (L. 1910, ch. 706; Keeney v. Comptroller, 222 U. S. 525; Matter of Durfee, 79 Misc. Rep. 653.)</p>

The facts, so far as material, are stated in the opinion. The costs and allowances belong to the client, especially where the compensation of the attorney is otherwise agreed upon. (Earley v. Whitney, 106 App. Div. 399; Caccia v. Isecke, 123 App. Div. 779.) .

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. 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 delivery of the bond and mortgage by the owner to his nephew, a person of identically the same name, vested in such nephew the apparent ownership thereof so as to estop the actual owner from questioning the title thereto of any person who purchased the same for a valuable consideration from the latter on the faith of such apparent ownership.

The parties to this action entered into a contract dated May 7th, 1906, for the sale by the plaintiff and the purchase by the defendant of a seven-story apartment building situate on the comer of Manhattan avenue and One Hundred and Sixteenth street in the borough of Manhattan in the city of New York. The premises are more particularly described in the contract as numbers 354 and 356 West One Hundred and Sixteenth street, and 275 Manhattan avenue.

The facts, so far as material, are stated in the opinion. The river crossings were improperly assessed under the Special Franchise Tax Law. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417; People ex rel. N. Y. C. & H. R. R. R. Co. v. Woodbury, 206 N. Y. 304; People ex rel. Hudson & Manhattan R. R. Co. v. Tax Comrs., 203 N. Y. 119; Saunders v. N. Y. C. & H. R. R. R. Co., 144 N. Y. 87; East River Tunnel Case, 142 App. Div. 796; People ex rel.

<p>Workmen’s Compensation Law — constitutionality — scope and application — when and to what extent applicable to interstate work and commerce—fatal injury to employee of a foreign railroad corporation owning and operating steamship engaged solely in interstate commerce.</p> <p>1. The Workmen’s Compensation Law (Cons. Laws, eh. 67; L. 1914, ch. 41) is not violative of the Fourteenth Amendment of the Constitution of the United States for taking property without due process of law, and under. the amendment to the State Constitution, adopted November 4, 1913, and now section 19 of article 1 of such Constitution, it is a valid enactment within the police power of the state for the promotion of the general welfare. It protects both employer and employee, the former from wasteful suits and extravagant verdicts, the latter from the expense, uncertainties and delays of litigation in all cases and from the certainty of defeat if unable to establish a case of actionable negligence; it creates a fund for the payment of the compensation allowed for disability or death from accidental injuries sustained by employees engaged in certain enumerated hazardous employments, and distributes the burden thereof equitably over the business and industries affected.</p> <p>2. The statute properly construed applies to accidental injuries received in interstate as well as intrastrate work, except those injuries received while employed in interstate or foreign commerce, for which “a rule of liability or method of compensation has been or may be established by the Congress of the United States.” Hence the statute is not violative of the Federal Constitution for attempting directly to regulate or impose a tax or burden on interstate or foreign commerce.</p> <p>3. The fact that the statute deprives an employee, injured by negligence imputable to the employer, of a further right of action against his employer does not render the act unconstitutional. The act does not deal with intentional wrongs but only with accidental injuries for which a new remedy is substituted in place of the common-law right of action. The legislature has the power, in the promotion of the public welfare, to require both employer and employee to yield something toward the establishment of a principle and plan of compensation for them mutual protection and advantage, and it is certainly competent for the legislature to provide, by the creation of an insurance fund, for a limited compensation to the employee for all accidental injuries, regardless of whether there was a cause of action for them at common law.</p> <p>4. An employee of a foreign railroad corporation, owning and operating a steamship engaged solely in interstate commerce, was killed by an accident while engaged in unloading the steamship, which was berthed alongside a pier in the Hudson river in the city of New York. Held, that the work in which he was engaged is classified as “ Longshore work ” in group 10 of section 2 of the statute, and, therefore, does not fall within group 8, which excepts injuries received in the operation of “vessels of other states or countries used in interstate or foreign commerce when operated or repaired by the company.” Hence, the ease is not covered by the Federal statute (Liability Act of April 22,1908, 35 Stat. L. 65), and an award made by the workmen’s compensation commission to the widow of such employee should be affirmed. (Noble State Bank v. Haskell, 219 U. S. 104; Ives v. South Buffalo Railway Co., 201 N. T. 271, 294, distinguished.)</p>

<p>Workmen’s Compensation Law — injury to employee of a foreign railroad corporation owning and operating a steamship engaged solely in interstate commerce — when such employee entitled to award under statute, although he may maintain an admiralty proceeding in rem against the company for,the same injury.</p> <p>Where an employee of a foreign railroad corporation, owning and operating a steamship engaged solely in interstate commerce, was accidentally injured on the steamship while it was lying alongside a pier in the .Hudson river in the city of New York, he may sustain a claim under the Workmen’s Compensation Act notwithstanding the fact that he may maintain an admiralty proceeding in rem for the same injury. While the remedy provided by the Workmen’s Compensation Act is a substitute for the common-law remedy, it is in no sense a proceeding in rem to enforce a maritime lien and may, therefore, exist concurrently with the remedy in admiralty.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 11, 1913, which affirmed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of plaintiff and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The claim is not barred by the Statute of Limitations.

The action was brought to secure an injunction restraining the defendant from trespassing upon the plaintiff’s lands. The plaintiff is a corporation organized for the enforcement of the Game Law, the propagation of game and fish, and the purchasing and holding of lands and waters for the purpose of hunting and fishing.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff, as attorney, has a lien on the proceeds of the settlement between Wischerth and the corporation, and may enforce the same by a plenary suit in equity against the corporation. (Meighan v. American Grass Twine Co., 154 Fed. Rep. 346; Matter of Meighan, 182 N. Y. 558; Rooney v. S. A. R. R. Co., 18 N. Y. 368; C. R. R. Co. v. Pettus, 113 U. S. 116; Hardoon v. Belilos, L. R. [App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 8, 1913, 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.

<p>Abatement — action for accrued alimony does not abate upon death of wife.</p> <p>Alimony which accrues prior to the death of a wife is not a personal claim that dies with her but a right which survives in favor of her personal representatives, and the husband’s estate is liable for alimony due and unpaid at the time of his death. {Faversham v. Faversham, 161 App. Div. 521, overruled.)</p>

<p>Will —trust of unproductive real estate with imperative power of sale—when proceeds should be apportioned between income payable from time of testator’s death to life beneficiary and principal belonging to remaindermen — when income commences where a conversion of property is required to form trust fund — rate of interest in computing income—whether Supreme Court will entertain jurisdiction of an action where relief might be obtained in Surrogate’s Court discretionary.</p> <p>1. Under a will creating a trust of unproductive real estate, income payable to a life beneficiary and remainder to others, with an imperative power of sale and equitable conversion of the real estate into personalty at the death of the testator, with actual sale and conversion accruing only after a considerable delay, the testator will be held to have intended that the proceeds thus and when realized should be apportioned between income payable from the time of her death to the life beneficiary and principal belonging to the remaindermen. Authorities bearing upon the principle involved collated, discussed and followed.</p> <p>2. A clause of the will whereby after giving a power of sale to the executors, it was provided “that they apply such portions of the proceeds (of sales) as in their judgment they may deem proper to the payment of any taxes and assessments that may be liens upon said real estate or any part thereof and to pay over the surplus that may not be required in their judgment for the above purpose to the said * * (plaintiff and the three other beneficiaries named with her) in the proportions mentioned in the eighth and ninth clauses of this my will, the whole of such part or share as may then fall to the said (plaintiff; to be held in trust by my executors as hereinbefore provided,” construed, and held, that a contention that thereunder there was a power to sell only for payment of taxes which would give plaintiff an interest only in any surplus that might happen to be produced in that manner, cannot be sustained where there has been a prior adjudication that there was an imperative power of sale which worked an equitable conversion of all the residuary property at the date of testatrix’s decease; that the provision in question was intended to give the power to sell land, pending the general conversion, for the purpose of raising money with which to pay taxes on all the property as well as those resting on the particular piece which was sold. The fact that the power of sale was imperative did not deprive the trustees or executors of some discretion as to time and manner of sale or insure against delay in conversion during which taxes would accumulate.</p> <p>8. Nor does the assumption that the real property devised to trustees was to be sold by them acting as executors and the proceeds paid to them in the former capacity by themselves acting in the latter capacity establish the proposition for the purposes of this action that until such surplus was obtained by the execution of the power there could be no income to which plaintiff would be entitled. The property was devised to the trustees for the purposes of the trust. The provision for converting it into personalty was imperative, and the fact that there was no actual income to be enjoyed by plaintiff until the proceeds of the sale were received by the trustees is the very basis for applying the rule in such a case and giving to the life tenant a sum as income during the period when she would have actually received income if the assumed intentions of the testatrix had prevailed.</p> <p>4. The ordinary rule is that where a conversion of property is required to form the trust fund income will not commence until one year after the decease unless the conversion has actually been accomplished sooner, but where there has been a prior adjudication that the will “worked and effected at the time of her (testatrix’s) death an equitable conversion into personal property of all of the real property,” the doctrine of equitable conversion will be followed out for all purposes of the will, and the intervening period for which income is to be apportioned be deemed to commence at the date of testator’s decease.</p> <p>5. The income should not be figured at a greater rate than could have been realized by the trustees on a proper investment of funds if they were actually in existence, and in apportioning the income it will be the duty of the trial court to determine at what rate of interest this income should be computed.</p> <p>6. While the Supreme Court, under ordinary circumstances, will refuse to entertain jurisdiction of an action seeking relief which can be fully administered in the Surrogate’s Court, the question whether it will thus refuse to entertain jurisdiction is one which largely rests in its discretion, and, therefore, should be addressed to it, certainly in the first instance.</p>

The nature of the action and the facts, far as material, are stated in the opinion. The failure to furnish a punch to plaintiff for punching holes in hoops was not a defect in defendant’s plant. (Davis v. Plant, 138 N. Y. Supp. 145; G. P. R. R. Co. v. Brooks, 84 Ala. 138; Clements v. A. G. S. R. R. Co , 127 Ala. 166; Southern R. R. Co. v. Moore, 128 Ala. 434; Coffee v. N. Y., N. H. & H. R. R. Co., 155 Mass. 21; Birmingham Furnace & Mfg.

<p>(1.) Murder—Sufficiency of evidence.</p> <p>The evidence upon a trial for murder in the first degree examined, and held, to present a question of fact for the jury and to be sufficient, if true, to justify a judgment of conviction.</p> <p>(2.) Same—When no adverse influence can be drawn from failure TO CALL WITNESS AS TO LOW MENTALITY.</p> <p>Where, upon a trial for murder, there is evidence from which the jury might infer that a possible witness for the People is a man of low mentality who cannot testify intelligently no inference adverse to the prosecution can be drawn from its failure to call him as a witness, more especially where the defective is in court and may be called by the defense should his testimony be desired.</p> <p>(3.) Same—Confessions—Verdict of jury as to whether voluntary, CONCLUSIVE.</p> <p>Where, whether or not confessions of the defendant were voluntary was the subject of conflicting testimony, and the court received all the evidence that was offered bearing upon the question and submitted the matter to the jury with proper instructions, their verdict as to their voluntary character is conclusive.</p> <p>(4.) Same—Proof of corpus delicti only additional proof necessary TO WARRANT CONVICTION.</p> <p>The only additional proof which the statute makes necessary to justify a jury in convicting a defendant who has confessed his guilt is that there shall be proof “that the crime charged has been committed.” (Code Crim. Pro. § 395.) There must be evidence in addition to the confession to prove the corpus delicti, but when, as in this case, the corpus delicti is proved by independent evidence, and the defendant has voluntarily confessed his guilt, a case for the jury is made out, and a conviction based upon such testimony is warranted in law.</p> <p>(5.) Same—Expert evidence as to finger print's competent and weight' THEREOF FOR JURY.</p> <p>The evidence of an expert as to the identity of the finger prints of the defendant with blood marks found upon the clapboards of the house where the murder was committed, was a proper subject for the consideration of the jury, and the weight to be given to this evidence was for it, not the court, to determine.</p> <p>(6.) Same—When testimony of attorney as to conversation had in presence of several other persons improperly rejected.</p> <p>Testimony of an attorney was offered to contradict a denial by a witness for the prosecution that he had made certain statements to said attorney and objection thereto was sustained upon the ground' that the proposed witness was acting as attorney for the county and could not disclose the information that he had received. Several other persons were present when this alleged conversation occurred. Held, error, but, that while the testimony might well have been admitted for the purpose of showing bias or hostility on the part of the witness,, where it is not reasonable to suppose that its admission could have contributed to change the result, its exclusion was one of those errors which this court in a case of this character is expressly required to disregard. (Code Crim. Pro. § 542.)</p> <p>(7.) Same—When error will be disregarded—Testimony of private detective—When properly rejected though ground stated for its seclusion erroneous.</p> <p>Defendant sought to prove by a private detective that neither the defendant nor his employer had acted in a manner to indicate consciousness of guilt on their part. Objection was made to this testimony on the ground that it was prohibited under section 74-b of the General Business Law as amended by chapter 515 of the Laws of 1910. The court sustained this objection. That section prohibits a licensed detective from revealing without his employer’s consent information obtained by him “ except as he may be required by law.” Held., that it was clearly without application to this case, and the reason assigned' by the court for the exclusion of this testimony was erroneous. The ruling itself, however, was correct. The evidence sought to be presented was incompetent; it was purely negative in character, and designed merely to show that the witness had been unable to discover evidence of the defendant’s guilt. As the evidence thus sought to be introduced was incompetent, no error can be predicated upon its exclusion.</p> <p>(8.) Same—Good character—Charge.</p> <p>Defendant’s counsel asked the court to charge that the defendant’s. good character “ which is not questioned is presumptive evidence of his. innocence.” In response to this request the court said: “ I will charge the jury that the evidence oi his good character in itself might be sufficient to create a reasonable doubt.” To this charge the defendant excepted and again repeated his last request to charge and the court replied: “ He is presumptively innocent in all respects until the proof shows otherwise.” Held, that the refusal of the court to charge as requested was not error when considered in connection with the charge made. (People v. Conrow, 20G N. Y. 356, 260, distinguished.)</p>

5, 1913, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. Where there is no mistake about the agreement and the only mistake alleged is in the reduction of that agreement to writing, such mistake of the scrivener or of either party, no matter how it occurred, may he corrected.

The questions at issue were: 1. Whether the notice of claim was sufficient as a matter., of law. 2. Whether there was a sufficiency of proof to require submission to the jury of the question as to whéther there had been a waiver of further notice or proofs of loss. 3. Whether the proofs were sufficient to require the submission to the jury of the question of whether or not the insured came to his death solely by reason of bodily injuries- effected through accidental means.

<p>Motion to permit appeal to be heard upon a record in part not printed.</p>

The plaintiff is the widow of one John Smith Rice, and the remainderman of a trust of personal property created by her late husband, who was the life tenant thereof. The defendants are stockbrokers, doing business in the city of New York under the firm name of C. D. Halsey & Co. The trustee of the said trust was John Drohan. He was originally joined as a party defendant, individually and as trustee, but the action as to him was severed.

Plaintiff testified that he was shown the place and the price thereof was $625 and immediately upon the payment of the money he went into possession and immediately attempted to have the license transferred to his name and to procure goods with which to do business from the Koehler Brewing Company.

Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 3, 1913, affirming a judgment in favor of defendant entered upon a verdict in an action to recover upon a policy of fire insurance.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 1913, upon an order reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and directing a dismissal of the complaint in an action brought to fix the status of the parties under a contract of insurance, of which the application for insurance is a part, which lapsed for nonpayment of premium April 19, 1891, and for an adjudication that the plaintiff is entitled to paid-up assurance in the defendant company in the sum for which the reserve on the policy would have purchased paid-up assurance at the time of the lapse, such paid-up assurance to be payable at the same time and on the same conditions except as to payment of premiums, as the original policy, and to fix the amount of such paid-up insurance.</p>

<p>' Appeal — Court of Appeals cannot consider question of jurisdiction raised for first time on appeal.</p> <p>The Court of Appeals is without power, in an action to recover damages caused by a railroad’s failure to furnish cars for the transportation of freight, to consider or decide the question, raised for the first time on appeal, that the court had no jurisdiction because a substantial number of ears demanded by the plaintiff were intended for interstate shipments where there was no attempt on the trial to separate the intrastate shipments from the interstate shipments.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 13,1912, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term.

Appeal, by permission, in each of the above-entitled actions, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 12, 1915, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court- on trial at Special Term, directing judgment in favor of plaintiff, and appointing a referee to ascertain the amount due to the plaintiff and other creditors in an action brought to recover on a bond…

Motion to dismiss two separate appeals taken from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 31, 1914, modifying and affirming as modified a judgment in favor of plaintiff entered upon the decision of the court on trial at Special Term in an action to restrain an encroachment upon real property.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 30, 1915, which affirmed an order of Special Term dismissing a writ of habeas corpus and remanding the relator to custody. The appellant was arrested, charged with a violation of subdivision 2 of section 161 of the Labor Law in having permitted a female employed by him in a mercantile establishment to work after ten o’clock at night. The question on appeal is: 1 ‘ Can a woman of full age be prevented by statute from working after ten p. m. at night and before seven A. M. in the morning in mercantile ■ establishments in this state ? ”</p>

Trim, deceased. The question ' at issue involved the construction of the following two provisions of the will: “ Sixteenth. Should any of the gifts and bequests made by me in this my will lapse or fail for any reason, I direct that the gift or bequest so lapsing or failing shall go to form part of my' residuary estate and be disposed of under and in accordance with the seventeenth paragraph of this .my will. Seventeenth.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 9, 1915, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action under sections 1638 to 1650 of the Code of Civil Procedure to compel determination of a claim to real property.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1915, which reversed an order of Special Term sustaining a demurrer to the complaint on the grounds that there is a misjoinder of parties plaintiff, and also a misjoinder of causes of action.

<p>Crimes — murder — motion, for new trial on ground of newly-discovered evidence should be made upon verified affidavits in due form or explanation for failure submitted—when opportunity for rehearing granted.</p> <p>A defendant, convicted of murder in the first degree, on an application for a new trial on the ground of newly-discovered evidence, should submit affidavits in due form verified by the witnesses on whose testimony he relies, and if this cannot be done should at least submit some explanation of his failure to produce the affidavits, and some excuse for the presentation of informal or unverified statements. Where this has not been done, and there are features of the case unusual and suspicious, an opportunity for a rehearing will be granted upon which the affiants should be placed upon the witness stand and subjected to the test of cross-examination. (Code Crim. Pro. § 465, subd. 7.)</p>

The answer alleges that in equity and in truth and in fact the brewing company was the owner of the said certificate, and that it had permitted the plaintiff to make use thereof for the purpose of selling liquors, but upon the express condition that only the beer of the defendant brewing company was to be sold, and that the plaintiff had violated the terms of that agreement by selling other beer, and that the defendant brewing company had taken possession of the certificate…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 15, 1915, modifying and affirming as modified an order of the Erie County Court in an action to foreclose a mortgage held by the plaintiff bank against the defendant Polish church. Judgment of foreclosure and sale was taken by default.

Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 9, 1915, which affirmed an order of Special Term canceling assessments for purposes of taxation upon certain bridges over the rights of way and tracks of the railroads leased and operated by the relator in the borough of The Bronx, city of New York.

Appeal in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 6, 1915, which reversed an order of Special Term confirming the report of commissioners of appraisal. The following questions were certified in the first proceeding: “ 1.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 22, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in favor of the plaintiff adjudging reformation as to a certain written instrument bearing date April 23, 1910, and decreeing that the defendant Carnegie Trust Company pay the plaintiff the sum of $145,528.15,…

At the hearing objection was made to the making of an award on the ground that the act does not apply because the injured man was engaged in interstate commerce in the employ of a foreign corporation of the state of Kentucky which was engaged solely in interstate commerce; the injury was one with respect to which Congress may establish and by the Federal Employers’ Liability Act has established a rule of liability, and under the language of section 114 of the State Workmen’s…

By this deed certain shares of stock were transferred to the Central Trust Company in trust to pay over part of the income thereof to Mrs. Fannie H. Gaffney, this defendant, and the mother and guardian of Jayta Humphreys, now Jayta Humphreys von Wolf, and Frederic E. Humphreys, during the minority of the said children.

Motion to set aside and vacate an order of an associate judge of the Court of Appeals staying proceedings pending the hearing and determination of an appeal.