Volume 216 — New York Reports

<p>Appeal'from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 28, 1913, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a decision of the 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>The right to flow which is granted to the defendant Philip Schantz by a long series of conveyances is not in any way restricted or limited as to its purpose. Such a right gives the owner the right to cut and remove ice forming over the lands of another. (Myer v. Whitaker, 55 How. Pr. 376; Dodge v. Berry, 26 Hun, 246; Hazleton v. Webster, 20 App. Div. 177; Swan v. Goff, 39 App. Div. 95.)</p> <p>The privilege to raise the water cannot be construed into a grant of a right to enter that part of the pond lying within plaintiffs’ boundaries, take the ice forming thereon and prevent the plaintiffs from taking any ice or water therefrom. (Dodge v. Berry, 26 Hun, 246; Hazleton v. Webster, 20 App. Div. 177; Swan v. Goff, 39 App. Div. 95; Howe v. Andrews. 62 Conn. 398.)</p>

The facts, so far as material, are stated in the opinion. The private easements in Seventh avenue, or Rockwood street, appurtenant to lot 51, created by grant from the proprietors of the Mt. Eden tract and by mesne conveyances to Minzesheimer, the present owner of that lot, survived the closing of Rockwood street as a public highway and still exist as incumbrances on lot 21, as part of the hed of the street, depriving lot 21 of all substantial value and rendering the title…

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 11,1913, which reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff upon the submission of a controversy under section 211 of the Municipal Court Act as it formerly existed.</p> <p>The nature of the controversy and the facts, so far as material, are stated in the opinion.</p> <p>The defendant became liable for the tariff charges upon the shipment the moment he received the goods. (N. Y., N. H. & H. R. R. Co. v. York & Whitney, 215 Mass. 36; Penn. R. R. Co. v. Crutch-field, 55 Pa). Super. Ct. 346; P. & R. Ry. Co. v. Baer, 56 Pa. Super. Ct. 307; C. G. Ry. Co. v. Birmingham S. & B. Co., 9 Ala. App. 419.) The tariff showing the rate on these peaches was eighty-one cents and not eighty and two-tenths cents "being on file with the interstate commerce commission, all persons dealing with the interstate carrier are chargeable with notice of the tariff and the amount of their liability for transportation is determined by the tariffs alone. (Louisville & Nashville R. R. Co. v. Maxwell, 237 U. S. 94; T. & P. R. R. Co. v. Mugg, 202 U. S. 242; Gulf, etc., R. R. Co. v. Hefley, 158 U. S. 98; C. & A. R. R. Co. v. Kirby, 225 U. S. 155; U. P. R. R. Co. v. A., S. & R. Co., 202 Fed. Rep. 700; Gar-diner v. N. Y. C. & H. R. R. R. Co., 201 N. Y. 387.) The defendant is now liable for the unpaid balance of the tariff charges, and the plaintiff is not estopped to collect. (L. R. & N. Co. v. Holly, 127 La. Ann. 615; L. & N. R. R. Co. v. Mottley, 219 U. S. 467; I. C. R. R. Co. v. Henderson El. Co., 226 U. S. 441.)</p> <p>It being expressly admitted that defendant was not the owner of the goods, he cannot be held liable for the undercharge on the theory that, as consignee, he was presumptively the owner and that, by accepting delivery without disclosing his agency, he authorized the carrier to treat him as the actual owner. (Elwell v. Skiddy, 77 N. Y. 282; Dart v. Ensign, 47 N. Y. 619; Ackerman v. Redfield, 9 Hun, 378.) At common law a consignee who is not the owner becomes in no way liable for transportation charges unless and until the goods have been delivered to and accepted by him. His liability is based solely upon a contract implied from the fact of his accepting the goods and allowing the carrier to waive its lien. (Merrick v. Gordon, 20 N. Y. 93; Clark v. Masters, 1 Bosw. 177; Marian v. Funck, 4 Den. 110; N. Y., etc., Nav. Co. v. Young, 3 E. D. Smith, 187; Erie R. R. Co. v. Wanaque Lumber Co., 75 N. J. L. 878; Central R. R. Co. v. MacCartney, 68 N. J. L. 165; Elwell v. Skiddy, 77 N. Y. 282; Coleman v. Lambert, 5 M. & W. 502; Scaife v. Tobin, 3 B. & A. 523; Davis v. Pattison, 21 N. Y. 317; Hindsdell v. Weed, 5 Den. 172.) The liability of a consignee who is not the owner, hut who accepts the goods, is fully discharged by the payment of the amount demanded by the carrier upon the surrender of its lien. (2 Hutchinson on Carriers [3d ed.], § 807; Central Railroad v. MacCartney, 68 N. J. L. 165.) The Interstate Commerce Act does not change the rule in this case. (Dempsey & Co. v. P. & R. R. R. Co., 30 Pa. C. C. 484; B. & O. R. R. Co. v. La Due, 128 App. Div. 594; Nicola, Stone & Myers Co. v. Louisville, etc., R. Co., 41 I. C. C. 199; Gamble-Robinson Commission Co. v. St. Louis, etc., R. Co., 19 I. C. C. 114; Baker Mfg. Co. v. Chicago, etc., R. Co., 21 I. C. C. 605; Crutchfield & Woolfolk v. Southern Pac. Co., 24 I. C. C. 679.) The purpose of the Interstate Commerce Act is fully effectuated without imposing this liability upon a consignee who has received no benefit, since the carrier has a clear remedy to recover the undercharge either against the shipper on his express contract, or against the owner upon quasi contract. (Barker v. Havens, 17 Johns. 234; Jobbitt v. Goundry, 29 Barb. 509; Gilson v. Madden, 1 Lans. 172; Allen v. Bareda, 7 Bosw. 204; Wooster v. Tarr, 8 Allen [Mass.], 270; Union Freight R. Co. v. Winkley, 159 Mass. 133; Holt v. Westcott, 43 Me. 445; Grant v. Wood, 21 N. J. L. 292; Central R. R. Co. of N. J. v. MacCartney, 68 N. J. L. 165; Hatch v. Tucker, 12 R. I. 501; Shepherd, v. De Barnales, 13 East, 565; Tapley v. Martens, 8 T. R. 451.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The order of the County Court does not comply with the statute and is, therefore, a nullity. (Code Crim. Pro. §§ 867, 868.) The County Court never acquired jurisdiction of the bastardy proceedings. (Code Crim. Pro. §§ 851, 858, 862; Drummond v. Dolan, 155 App. Div. 449; Kingsbury v. Westfall, 61 N. Y. 360; Guardian Trust Co. v. Peabody, 122 App.

<p>Will — evidence — when attorney may testify as to communications from client—indisputable evidence required to attribute irrevocability to will — evidence required to show contract by one since deceased to dispose of his property in a certain manner — insufficiency of evidence to • show agreement to make mutual irrevocable wills.</p> <p>1. A husband and wife consulted an attorney with reference to the drafting of mutual wills, which contained reciprocal conditions. Held, that the provisions of section 835 of the Code of Civil Procedure preventing an attorney from divulging communications from a client do not apply in a controversy arising between beneficiaries under such wills. The disability exists only when the communications are intended to be confidential. (Matter of Cunnion, 135 App. Div. 864; 301 IN. Y. 123, distinguished.)</p> <p>2. The evidence required to show a contract by one since deceased to dispose of his property in a certain manner after his death, must be clear and convincing, or it will not be regarded as sufficient.</p> <p>3. To attribute to a will the quality of irrevocability demands the most indisputable evidence of the agreement which is relied upon to change its ambulatory nature, and presumptions will not take the place of proof.</p> <p>4. Evidence examined, and held, that testimony of witnesses to statements and declarations by decedents tending to sjiow that they contracted to make mutual irrevocable wills, together with such evidence as the wills themselves present, is not sufficient to establish that fact. (Rastetter v. Hoenninger, 214 IN. Y. 66, distinguished.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The town board had no authority to grant the defendant any rights in the highway whatever. (L. 1889, ch. 422; Wilson v. Tennant, 61 App. Div. 100.) The clause in the resolutions of the town board restricting the price of gas to twenty-five cents per thousand cubic feet is wholly without consideration. (Rochester Tel.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1915, which affirmed an order of Special Term sustaining a demurrer to and dismissing the complaint. ' The following question was certified: “Does the complaint state facts sufficient to constitute a cause of action % ” The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Condemnation proceedings — lands under water subject to public easement of passage from high-water line to navigable waters — when such easement does not preclude right of owner to substantial damages when lands under water are taken by municipality in condemnation proceedings.</p> <p>1. Where a perpetual right of way exists in favor of the public between the terminus of a street at the high-water line of navigable tidal waters and those waters, the public has a right of passage over the place where the land, highway and the navigable waters meet. Such an easement is not extended by a structure placed upon the land under the waters and not substantially interrupting the passage between the street and the water. The public has, however, the easement of passage merely and cannot, in appropriating it or exercising it, destroy or seize without compensation other or additional property rights.</p> <p>3. Appellant is the owner, by mesne conveyances from a royal grant, of lands under the navigable waters of Long Island Sound, extending four hundred feet from high-water mark at the foot of a public street upon City Island in the city of New York, subject, by reservation contained in the grant, to the right of the public and the upland owners to use the premises for the purposes of fishing, navigation, anchorage and access to and from the shore until wharfs and buildings should be erected thereon and to use for such purposes all parts of the premises at any time not occupied by such structures. The city seeks to acquire the title in fee simple to such lands under water in condemnation proceedings and nominal damages, merely, have been awarded upon the ground that the ownership of such lands under water is and always has been subject, as matter of law, to the right of the public to travel over them for the purpose of passing to and fro between a public street and the navigable waters, and, hence, that the acquisition of the titles to the lands under water is not an injury to the appellant. Held, error; that the public right of traveling over the lands in question did not exhaust or annihilate the uses of which they were capable or the property rights inherent in the ownership of them; that such rights are private property protected by the relevant constitutional provisions; that the appellant is entitled to substantial damages, and that the order affirming the present award should be reversed and the proceedings remitted to the commissioners to award the appellant damages in accordance with this opinion.</p>

The facts, so far as material, are stated in the opinion. The portion of the Naylor trust property received by the Slosson children passed to them under the Naylor will and constituted, therefore, a transfer taking effect at the date of Naylor’s death, which, being prior to the enactment of the Transfer Tax Law, was not subject to tax thereunder. The children of Josephine Slosson had the right to elect to take under the Naylor will.

Klatzl, deceased. The deed in question did not create a tenancy by the entirety but did create a tenancy in common. (Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 N. Y. 12; Stelz v. Shreck, 128 N. Y. 263; Hiles v. Fisher, 144 N. Y. 306; Dressler v. Mulhern, 77 Misc. Rep. 476; 1 Washburn on Real Property [8th ed.], 529.) If any joint interest passed to Mrs. Klatzl by the deed it was taxable as a gift to take effect at death. (Saxon v. Saxon, 46 Misc.

which modified, on certiorari, and confirmed as modified an assessment against real property of the relator. The facts, so far as material, are stated in the opinion. The assessment is void because no notice was served after district of assessment was established. (L. 1905, ch. 593; Folmsbee v. City of Amsterdam, 142 N. Y. 118; Dillon on Mun. Corp. [5th ed.] 2607; Tifft v. City of Buffalo, 25 App.

Motion to dismiss an appeal from an order of the Appellate Division of the- Supreme Court in the third judicial department, entered June 10, 1915, unanimously affirming an award of the¡state workmen’s compensation commission. The facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 27, 1915, which reversed an order of Special Term granting a motion for leave 'to abandon and discontinue condemnation proceedings as to the appellants herein and vacating and setting aside a prior order which confirmed the report of commissioners of appraisement in said proceeding.

<p>Real property — estates by the entirety—relative rights of husband and wife — injury to lands owned in entirety by change in grade of village street — husband may maintain proceedings for assessment of the damages to his interest in the property without joining his wife as a party—form of report by commissioners of appraisal.</p> <p>1. Since the enactment of the Married Woman’s Acts, a husband and wife owning land as tenants by the entirety have equal rights. Each is a tenant in common with the right of survivorship, and Vrhen land so owned by a husband and wife has been damaged by a change of grade in a village street, an award to the husband does not bind the wife nor include her interest, and she may make her claim for damages independent of her husband.</p> <p>2. Where a husband and wife are the owners of an estate by the entirety, and such land is injured by a change in the grade of a village street, the husband can institute and maintain a proceeding for an assessment of damages to such property without joining his wife, his co-tenant, as a party to the proceeding, but the damage to which he is entitled under the Village Law (Cons. Laws, eh. 64, § 159) should be given for the diminution of the value of his estate as a tenant by the entirety, and not as rents and profits or damages to his use and occupation.</p> <p>3. In making their report, after such appraisal, the commissioners should state that, in fixing their award, they have considered the question of benefits, but they should not itemize the award by allowing a specific sum for damage to, and loss of, shade trees as part of the damages to the fee of the premises.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The refusal of the trial court to grant a nonsuit or to direct a verdict for the defendant was not error. (Burt v. Smith, 181 N. Y. 1; Sprague v. Gibson, 63 Hun, 626; Scott v. Dennet Coffee Co., 31 Misc. Rep. 826; Gerity v. Strasbourger, 133 App. Div. 701; Anderson v. How, 116 N. Y. 336; Rawson v. Leggett, 97 App.

<p>Murder—Evidence upon a trial for murder reviewed and held sufficient TO SUSTAIN JUDGMENT OF CONVICTION-APPEAL-STENOGRAPHIC</p> <p>' MINUTES OF TESTIMONY TAKEN AT TRIAL SUBSEQUENT TO TRIAL OF DEFENDANT CANNOT BE RECEIVED BY APPELLATE COURT EVEN TO SUSTAIN A JUDGMENT.</p> <p>The record, upon the trial of a defendant charged with the crime of murder in the first degree examined and held, that the evidence not only justified hut required the submission of the case to the jury and that the verdict convicting the defendant is amply sustained by such evidence.</p> <p>(2.) Same.</p> <p>While record evidence debars the record of a case under review by an appellate court may sometimes be received for the purpose of sustaining a judgment, it is never allowed for the purpose of reversing a judgment. It is received by the Appellate Court for the reason that; being in its nature incontrovertible, it would be idle to send the case back for the sole purpose of admitting it. But an Appellate Court, even in order to sustain a judgment, cannot receive and consider the Stenographic minutes of the testimony of a party given upon a trial subsequent to the trial under review. (Stemmier v. Mayor, etc of New York, 179 N. Y. 473; People v. Seidenshner, 210 N. Y. 341, distinguished. )</p>

April 30, 1915, which affirmed an order of the New York County Surrogate’s Court vacating a prior order requiring the respondent to show cause why he should not be required to produce the will of James B. Hammond, deceased, dated December 20, 1912. The facts, so far as material, are stated in the opinion. The appellant is entitled, as a matter of law, to a hearing before the surrogate on the question of fact as to the existence of the later will. (Code Civ.

<p>Arpe at. from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 10, 1913, upon an order reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Swenson was a person in the employ of the defendant 1 ‘ exercising superintendence whose sole or principal duty was that of superintendence.” (Guilmartin v. Solvay Process Co., 189 N. Y. 490; Gallagher v. Newman, 190 N. Y. 444; Buckley v. Beinhauer, 136 App. Div. 540, 541; 201 N. Y. 572; Smith v. Milliken Bros., Inc., 200 N. Y. 21.) Swenson in directing that the pawl of the winch he taken out of contact with the cogwheel, and also in directing Borckmann to go to work upon the winch, was performing acts of superintendence within the meaning of the stat: ute, and was guilty of negligence in the performing of said acts; at least the jury would be justified in finding such negligence. (Faber v. City of New York, 213 N. Y. 411; Guilmartin v. Solvay Process Co., 189 N. Y. 490; Gallagher v. Newman, 190 N. Y. 444; Buckley v. Beinhauer, 136 App. Div. 540; 201 N. Y. 572; McGlynn v. Penn. Steel Co., 144 App. Div. 343; 205 N. Y. 574; Wittgren v. Wells Bros. Co., 214 N. Y. 159; Middleton v. Whitridge, 213 N. Y. 499; Buckley v. Beinhauer, 136 App. Div. 540; 201 N. Y. 572.)</p> <p>Swenson, in assisting the other men in the actual work of operating the winch, was not exercising superintendence, but was engaged as a fellow-servant in performing a detail of the work; the shifting of the dog or pawl one way or the other was a detail of the simplest kind connected with the operation of the winch, and for Swenson’s negligence, if any, in respect thereto, the defendant is not liable. ' The complaint, therefore, should have been dismissed upon the defendant’s motion at the trial, and this disposition of the case by the Appellate Division was correct. (Guilmartin v. Solvay Process Co., 189 N. Y. 490; Hope v. Scranton, etc., Coal Co., 120 App. Div. 595; Bannan v. R. R. Co., 112 App. Div. 552; Dolan v. Safe Co., 105 App. Div. 366; Shute v. City of N. Y., 149 App. Div. 758; Kujava v. Irving, 122 App. Div. 375; Droge v. Robbins. Co., 123 App. Div. 537; Utess v. R. R., Co., 204 N. Y. 324; Kwiatkowski v. Nichols Copper Co., 152 App. Div. 663; Larson v. B. H. R. R. Co., 134 App. Div. 679; Shanley v. City of New York, 149 App. Div. 187; Abrahamson v. General S. & C. Co., 112 App. Div. 318; Pratt v. McKie, 135 App. Div. 752.) The evidence wholly failed to show that Swenson was guilty of a negligent act. (Stringham v. Hilton, 111 N. Y. 188; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31; Burke v. Witherbee, 98 N. Y. 562; Ozogar v. Pierce, 134 App. Div. 800; Scott v. R. R. Co., 136 App. Div. 347; Martin v. Degnon Const. Co., 121 App. Div. 85; Mattson v. Phoenix Const. Co., 135 App. Div. 234; Mcue v. Erie R. R. Co., 198 N. Y. 221; Johnson v. City of New York, 208 N. Y. 77.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial judge erroneously refused and failed to try this case ele nova, and refused to examine or consider the new evidence adduced. (Sticht v. Buffalo Cereal Co., 195 N. Y. 70; Ungrich v. Ungrich, 141 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1915, which affirmed an order of Special Term dismissing a writ of habeas corpus.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The board of health has no power to pass an ordinance in regard to the control of dogs in New York city. (Miller v. Donovan, 85 Pac. Rep. 159; 3 Cal. App. 325; State v. City of Trenton, 38 N. J. Law, 68; City of Brooklyn v. Furey, 9 Misc. Rep. 193; Matter of O’Connor, 48 Barb. 258; Flanagan v. Hollingsworth, 2 How. Pr. [N. S.] 391; Endlich on Interp. of Stat. § 216; Dillon on Mun. Corp. [5th ed.] § 586; Mernaugh v. City of Orlando, 41 Fla. 433.) The exercise of the police power by the health department must be reasonable, and that reasonableness must, among other things, consist in its being directed against a real danger to the public health. This ordinance does not fulfill this requirement. (Freund on Police Power, § 148; Matter of Smith, 146 N. Y. 68; Potts v. Breen, 167 Ill. 67; People ex rel. Lodes v. Dept. of Health, 51 Misc. Rep. 190; 116 App. Div. 890.)</p> <p>Regulations of the character in question are clearly within the police power. (Sentall v. N. O., etc., R. Co., 166 U. S. 698; State v. Harriman, 75 Me. 562; Matter of Ackerman, 6 Cal. App. 5; Washington v. Meigs, 1 McArthur [D. C.], 53; State v. Churchill, 15 Ida. 645; State v. Smith, 165 N. C. 628; Citizens Rapid Transit Co. v. Dew, 100 Tenn. 317; Patton v. State, 93 Ga. 111.) If the subject of regulating the keeping of domestic animals is within the power and authority of the board of health it is authorized to legislate on that subject, and, in so legislating, the ordinances which it may enact are not limited in their application to the subject of health only. (Polinsky v. People, 73 N. Y. 65.) Statutes conferring powers upon the board of health should receive a liberal construction in aid of the beneficent purposes of their enactment. (Gregory v. City of New York, 40 N. Y. 273; Gould v. City of Rochester, 105 N. Y. 46.) The passage of the ordinance was justified. (People v. Kaye, 212 N. Y. 407; People v. Frudenberg, 155 App. Div. 199; 209 N. Y. 218; People v. New York Edison Co., 159 App. Div. 786; People v. Jones, 164 App. Div. 894; People v. Finkelstein, 167 App. Div. 591; Lantry v. Hoffman, 55 Misc. Rep. 261; 124 App. Div.. 927; Waldo v. Christman, 72 Misc. Rep. 349; Department of Health v. Sulzberger, 78 Misc. Rep. 134.)</p>

The facts, so far as material, are stated in the opinion. It is evident that no part of the loss of $66,546 incurred during the administration of this estate ever passed to or can pass to the legatees or be enjoyed by them and thus is not taxable. (Matter of Gihon, 169 N. Y. 443; Matter of Silliman, 175 N. Y. 51; 79 App. Div. 98; 38 Misc.

Penfold, deceased. 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 defendant was negligent in. omitting to adopt and enforce a system of signaling or warning to the men in the operation of its traveling derrick.

The nature of the action and the- facts', so far as material, are stated in the opinion; . The trial court erred in violation of the substantial rights of the defendant in submitting to the jury the question of whether the defendant was negligent in hiring Davis, an alleged incompetent man. (Faieia v. Smith, 3 Misc. Rep. 255; Lanan v. Hibbard, 63 Ill.

<p>Corporations — comity — attachment — dissolution of foreign fire insurance company doing business in this state — statute of foreign state that liquidation of insolvent insurance companies shall be made by insurance commissioner of that state for benefit of creditors thereof — such commissioner vested with title to property of company for that purpose and attachment will not be issued against property of company within this state.</p> <p>1. The transactions of a corporation of a foreign state doing business in this state are dependent upon our statute law and generally, in the absence of a statutory rule, upon the rule of comity. The reasons for extending the rule of comity between the states are constantly increasing and it should when practicable be extended and not curtailed.</p> <p>2. A statute of the state of Pennsylvania provides for the dissolution of insurance corporations and that the liquidation shall be made by and under the direction of the insurance commissioner, and that he “ shall be vested by operation of law with title to all the property, contracts and rights of action of such corporation as of the date of the order so directing him to liquidate. ” That statute, together with the order of the court by which an insurance corporation was dissolved, and the title of all of its property became vested in the insurance commissioner for the purpose of its division among the creditors of such corporation, is to be treated as binding upon the creditors of that corporation in this state.</p> <p>3. The statutes of this state in regard to the liquidation and dissolution of insurance corporations are similar and in substantial accord with the statutes of Pennsylvania. Under the principle of comity the property of an insolvent insurance company organized in that state which is there being liquidated by the insurance commissioner became impressed with a trust in favor of all its creditors and the property of such corporation in this state is not subject to an attachment by a creditor whereby he would obtain a preference.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The alleged transaction did not create a contract between the parties. (Moulton v. Kershaw, 18 N. W. Rep. 172; Quick v. Wheeler, 78 N. Y. 300; Johnson v. A. P. Cement Co., 122 App. Div. 345; Rapoloritz v. Am. Tobacco Co., 73 Hun, 87; White v. A. K. Motor Car Co., 69 Misc. Rep. 627; Velie Motor Car Co. v. Kopmeier Motor Co., 194 Fed.

• The nature of the action and the facts, so far as material, are stated in the opinion. The evidence establishes constructive fraud on defendant’s part. (23 Cyc. of Law & Pro. 1022; Warren v. Union Bank, 157 N. Y. 259; Pom. Eq. Juris. [3d ed.] § 956; Butler v. Prentiss, 158 N. Y. 49; Smith v. Howlett, 29 App. Div. 182; Rosevear v. Sullivan, 47 App. Div. 421; Fisher v. Bishop, 108 N. Y. 25; Sheehan v. Erbe, 77 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in holding that section 18 of the Labor Law was not applicable for the reason that the plaintiff was not employed in erecting, repairing or altering a structure, and the defendant did not furnish the derrick for the performance of such labor. (Walters v. Fuller Co., 74 App. Div. 388; Stevens v. Stanton Construction Co., 153 App.

It was not necessary to fix the amount of the penalty in the order not to empty the sewage. (City of Poughkeepsie v. King, 38 App. Div. 610; People v. Hayes, 140 N. Y. 484.) The order of the board of health failed to provide any penalty for its violation. It was, therefore, unenforceable.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint unamended does not declare upon an oral contract for insurance, but is limited to a demand upon a written policy of insurance. (Northam v. D. C. Mut. Ins. Co., 177 N. Y. 73.) The amendment of the complaint at the conclusion of the trial to conform the pleadings to the proof was improperly allowed. (Romeyn v. Sickles, 108 N. Y. 650; Audley v. Townsend, 126 App.

<p>Negligence—pedestrians — duty of person crossing city street to look before attempting to cross — erroneous charge that such person is not bound to look at all.</p> <p>1. It is the duty of a pedestrian in crossing a city street to use his eyes and thus protect himself from danger. The law does not say how often he must look, or precisely how far, or when or from where, and whether he is negligent in going forward will he a question for the jury. If he has used his eyes, and has miscalculated the danger, he may still be free from fault; but it may not be said that he is not bound to look at all.</p> <p>2. Where plaintiff, who was old and feeble, was struck by defendant’s wagon and injured as he started to cross a street after alighting from a car, and the evidence is conflicting as to whether he looked for approaching wagons, or failed to look and so walked directly in front of the horse, and, also, as to whether defendant’s wagon was approaching slowly or at speed, the case was properly submitted to the jury; but it was reversible error for the trial court to charge, in effect, that even if the plaintiff left the car without looking where he was going, they might still acquit him of negligence. To escape the consequences of such negligence, he must prove that, even if he had looked, the accident would still have happened.</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion. The amendment by the legislature of chapter 610 of the Laws of 1874, since the passage of the General Tax Law, is an indication that it was not the intention of the legislature to repeal this law.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to direct a verdict in favor of the plaintiff. The defendant had a right, under the Code, to set off against the plaintiff’s claim the damage he suffered by reason of the brick company’s refusal to carry out its contract. (Code Civ. Pro. § 502, subd. 1; Caspary v. Hatch, 157 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Where an executory contract does not fix the time for performance neither party can thereafter rescind the contract on account of delay of the other without notice to the other requiring performance within a reasonable time to be specified within the notice.

The nature of the action and the facts, as far as material, are stated in the opinion. Where there has been default in the payment of a liquidated amount under a contract, interest is recoverable as part of the damages for the wrongful detention of the debt, on the principle that the plaintiff should be fully compensated for the loss he has sustained.

This action is brought by the plaintiff to recover commissions on the sale of certain real estate agreed to be paid by the defendants.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s servants were guilty of negligence which caused plaintiff’s injuries. (Flynn v. Cent. Ry. Co. of N. J., 142 N. Y. 445; Randolph v. B. & A. R. R. Co., 5 Wkly. Dig. 150; 74 N. Y. 608; Reilly v. Atlas Construction Co., 83 Hun, 176; Dohn v. Dawson, 90 Hun, 271; 157 N. Y. 686; Monahan v. Eidlitz, 59 App. Div. 224; McGovern v. Standard Oil Co., 11 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 29, 1915, which reversed an order of Special Term denying a motion by the superintendent of insurance for the dismissal of the claims • of the appellants as invalid and not provable against the assets of the Empire State Surety Company and granted said motion. The following questions were certified by order dated June 25, 1915: “ 1.

The commission was without power to make'the award under review. Claimant when injured was employed by the railroad, which was then engaging in interstate commerce. (Zikos v. Oregon R. & N. Co., 179 Fed. Rep. 893; Colasurdo v. C. R. R. of N. J., 180 Fed. Rep. 832; 192 Fed. Rep. 901; San Pedro L. A. & S. L. R. Co. v. Davide, 210 Fed. Rep. 870; Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146; Tralich v. C., M. & S. P. Ry. Co., 217 Fed.

<p>Guaranty — when guaranty of payment of debt of copartnership not a guaranty of debt of a corporation with similar name.</p> <p>Plaintiff required a guaranty of payment from the A. W T. Co., a corporation, for materials to be furnished it. Defendant guaranteed payment for bills of A. IP. T. <£■ Co., which was the name of a partnership which had no interest in the transaction. It does not appear that defendant knew that plaintiff was dealing with the corporation or that he intended to guarantee its debt. Held, that plaintiff could not recover from the guarantor for the default of the corporation.</p>

Washburn. The facts, so far as material, are stated in the opinion. The complaint was properly dismissed for the reason that the plaintiff failed to comply with sections 597 and 1489 of the Code of Civil Procedure. (Am. Surety Co. v. Cosgrove, 40 Misc. Rep. 262.) The defendant was arrested in Queens county, execution was issued to the sheriff of that county in accordance with the provision of section 597 of the Code.

<p>New York (city of)—when board of aldermen authorized by charter so to do have fixed salary of position in department of education, board of education cannot increase or decrease the compensation.</p> <p>1. Where the board of aldermen of the city of New York, pursuant to the authority exclusively vested in them by the charter, has adopted a resolution creating the position of draftsman in the department of education and fixed the salary, the board of education is powerless to increase or decrease such compensation.</p> <p>' 2. Plaintiff was appointed to that position by the board of education, but was for a considerable period paid a less sum than that fixed by the board of aldermen. Several years afterward his salary was attempted to be increased by the board of education, and thereafter he filed a claim and demand for certain arrears of salary earned before such attempted increase, and when payment thereof was refused this action was commenced for the balance. The defendant asserts that a release was given by the plaintiff in return for the change of position on the part of the board of education, and, therefore, there was a valuable consideration therefor. Held, that since the board of education had no power to decrease or increase the salary of plaintiff, there is an absence of consideration for the instrument signed by plaintiff and he is entitled to recover for six years’ services prior to the date of the demand and claim.</p>

The nature of the action and the facts, so far as material, are' stated in the opinion. No contract valid within the provisions of the Statute of Frauds was proved. (Sydney Glass Works v. Barnes, 68 Hun, 374; Mahar v. Compton, 18 App.

The facts, so far as material, are stated in the opinion. This court has never failed to set aside a verdict of murder in the first degree where it appeared that injustice has been done to a defendant. (People v. Corey, 157 N. Y. 332; People v. Driscoll, 107 N. Y. 414; People v. Lyons, 110 N. Y. 618; People v. Filipelli, 173 N. Y. 509; Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; People v. Benham, 30 Misc. Rep. 466; People v. Lane, 31 Hun, 13; People v. Hovey, 1 N. Y. Cr.

an appeal from a judgment entered upon a dismissal of the complaint as to part of the relief demanded in the complaint, and upon a verdict in favor of plaintiff upon the issues submitted to the jury. The nature of thé action and the facts, so far as;material, are stated in the opinion. The plaintiff did not waive her right to appeal from the judgment herein by receiving and accepting payment of the amount awarded by the judgment to which she was entitled absolutely.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1915, which affirmed an order of Special Term denying a motion by plaintiffs for judgment on the pleadings and sustaining a demurrer to the complaint.

The nature of the action and the facts, so far as material, are stated in the opinion. The employer was guilty of no negligence in failing properly to guard this machine. (Wynkoop v. Ludlow Valve Mfg. Co., 196 N. Y. 324; Dillon v. Nat. Coal Tar Co., 181 N. Y. 215; Gombocs v. Union Mills, 152 App. Div. 914; Toye v. United Dressed Beef Co., 141 App. Div. 332; Campbell v. Kertscher & Co., 146 App. Div. 384; Ostermann v. Ware, 135 App.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1913, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff failed to show title or ownership to the disputed strip. Its case rests wholly upon improper and incompetent evidence. (Carroll v. Carroll, 60 N. Y. 121; Jarvis v. Lynch, 157 N. Y. 445; Aubuchon v. N. Y., N. H. & H. R. R. Co., 137 App. Div. 834; People v. Inman, 197 N. Y. 200; Sheridan v. Cardwell, 141 App. Div. 854; Elliott v. Lewis, 10 Hun, 486; Wells v. Jackson Iron Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The towermen’s reports were not proper evidence of the facts they recite. (People v. McLaughlin, 150 N. Y. 365; Collins v. Carlin, 106 App. Div. 204; State Bank v. Brown, 165 N. Y. 216; C. S. P. Co. v. Humbert, 128 N. Y. Supp. 710; Sigua Iron Co. v. Brown, 171 N. Y; 438.) The admission of the daily reports of the towermen is not ground for reversal.

The Appellate Division in its order stated that the judgment is reversed upon questions of law only, and that the questions of fact involved in the case have been passed upon by it and affirmed. The nature of the action and the facts, so far as material, are stated in the opinion. The court below was in error in holding that the evidence did not sustain a finding of negligence. (Sciolaro v. Asch, 198 N. Y. 77; Stott v. Churchill, 15 Misc.

Appeal by each, defendant separately, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1915, which reversed an order of Special Term sustaining a demurrer to the amended complaint and overruled said demurrer. The following questions were certified on each appeal: “1. Is there a misjoinder of causes of action in the complaint ? “ 2.

The fact, so far as material, are stated in the opinion. That part of the final order directing the issue of a writ of mandamus commanding the inspectors of election to correct their return was unauthorized in the absence of any statutory provision therefor. (People ex rel. Blodgett v. Bd. of Town Canvassers, 44 N. Y. S. R. 736; People ex rel. Gaige v. Reardon, 49 Hun, 425; People ex rel. Fiske v. Devermann, 83 Hun, 181; People ex rel.

The facts, so far as material, are stated in the opinion. There is no analogy or similarity between section 374 of the Election Law and the provisions relating to voting machines. (People v. Way, 179 N. Y. 179; Matter of Hearst v. Woelper, 183 N. Y. 274; L. 1913, ch. 821; Tallman v. S., etc., R. R. Co., 4 Abb. Ct. App.

The facts, so far as material, are stated in the opinion. These three judgments became liens upon this real property at the same time. (Goetz v. Mott, 21 Abb. N. C. 246; Matter of Hazard’s Estate, 75 Hun, 22; 141 N. Y. 586.) The judgment of the church did not obtain priority of hen by the issue of the execution and the sale thereunder. (Atlas Refining Co. v. Smith, 52 App.

The facts, so far as material, are stated in the opinion. The answers to the' questions contained in the applications were as a matter of law true. The petitioner has shown no ground for revocation. (Matter of Kessler, 163 N. Y. 205; Matter of Hawkins, 165 N. Y. 191; Matter of Moulton,, 59 App. Div. 25; Matter of Loper, 53 App.

Appeal, by permission, from an order of theAppellate Division of the Supreme Court in the first judicial department, entered October 15, 1915, which reversed an order of Special Term denying a motion for an injunction pendente lite to restrain the superintendent of buildings from approving plans for alteration of a theatre.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 28, 1915, which affirmed a judgment rendered at a Trial Term for the county of New York upon a verdict convicting the defendants of the crime of poisoning a horse in violation of section 190 of the Penal Law.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in refusing to charge as a matter of law that Joseph Erlichman was an accomplice, or to submit to the jury as a question of fact whether Joseph Erlichman and John Levinson were accomplices. (People v. Zucker, 20 App. Div. 365; 154 N. Y. 770; People v. Becker, 210 N. Y. 274; People v. Russo, 126 App. Div. 717.) There was no sufficient evidence of corroboration of the testimony of the accomplices, and the court should have advised the jury to acquit the appellant at the close of the People’s case. (People v. Haischer, 81 App. Div. 599; People v. Plath, 100 N. Y. 590; People v. O’Farrell, 175 N. Y. 323.)</p> <p>The trial court erred in its refusal to charge that the witness Erlichman was an accompulice, and also in its refusal to submit to the jury for determination as a matter of fact whether or not the witness Erlichman was an accomplice. (People v. Bright, 203 N. Y. 73; People v. Curlee, 53 Cal. 604; Redd v. State, 63 Ark. 457; Ballew v. State, 34 S. W. Rep. 616; Carrington v. People, 6 Park. Crim. Rep. 336; People v. Hoogkerk, 96 N. Y. 149; People v. Ricker, 7 N. Y. Cr. Rep. 19; People v. Zucker, 20 App. Div. 363; People v. Meyer, 162 N. Y. 357; People v. Kurtz, 42 Hun, 335.)</p> <p>The court did not err in refusing to. submit to the jury to determine as a question of fact whether the witness Erlichman was an accomplice, or in refusing to hold, as a matter of law, that he was an accomplice. (People v. Zucker, 154 N. Y. 770; 20 App. Div. 363; People v. Bright, 203 N. Y. 73; People v. Sweeney, 213 N. Y. 37; People v. Gilhooley, 108 App. Div. 234-; 187 N. Y. 551; People v. Russo, 126 App. Div. 717; People v. Ricker, 7 N. Y. Cr. Rep., 19; 105 N. Y. 668; People v. Yannicola, 133 App. Div. 885; People v. Ogle, 104 N. Y. 511; People v. McGuire, 135 N. Y. 639; 1 Clark & Marshall Law of Crimes, § 176; 1 Am. & Eng. Ency. of Law [2d ed.], 391; People v. Ammon, 92 App. Div. 205.) The court did not err in refusing to rule that the witness Levinson was an accomplice or in refusing to submit the question as one of fact to the jury. (People v. Katz, 154 App. Div. 44; 209 N. Y. 311; People v. Weinseimer, 117 App. Div. 603; 190 N. Y. 537.)</p>

<p>Claims against United States — assignments thereof which do not conform to requirements of Federal statutes are void.</p> <p>An assignment of a claim against the United States, for supplies furnished, which fails to conform to the requirements of the United States Revised Statutes (§ 3477) as to executing, witnessing and acknowledging such assignment, is absolutely null and void and does not in itself convey any interest, present or remote, legal or equitable, in the claim transferred. {York v. Conde, 147 1ST. Y. 486, explained and overruled; National Bank of Commerce v. Bownie, 218 U. S. 845, followed.)</p>

The facts, so far as material, are stated in the opinion. The Supreme Court acquired no jurisdiction of the defendants represented by the attorney-general, for there is an attempt here to fix liability against the state without express legislative permission.

The appeal was dismissed upon the ground that the appellant had accepted payment of the award and thereby lost the right of appeal. The facts, so far as material, are stated in the opinion. The Appellate Division erred in granting the motion to dismiss the appeal from the order of the commissioners. (Matter of Board of Water Commissioners of White Plains, 195 N. Y. 502; Matter of N. Y. & H. R. Co., 98 N. Y. 12; Lewis on Em.

The nature of the action and the facts, so far as material, are stated in the opinion.. There is no order in the' case, denying a motion for a new trial. In a jury cause where there is no order entered in the case denying a motion for a new trial, the appeal to the Appellate Division is only from the judgment, and the Appellate Division can consider only the exceptions taken 'on the trial. (Boos v. World Mutual Life Ins.

<p>Appeal from a judgment, entered July 31, 1913, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p> <p>The action is against an agent for the breach of an implied warranty of authority. The plaintiff is a broker; the defendant, an attorney at law. About twenty-five acres of land in Queens county had been transferred under the will of John C. Debevoise. Fifteen acres were .owned by Solomon D. Purdy and Sarah H. Purdy. Nine acres were owned by Mary J. Debevoise. The defendant was the attorney for Solomon D. Purdy, but for none of the other owners. On July 6, 1905, he employed the plaintiff to sell the fifteen acres. He wrote that his client was the owner, and that the price was $7,000 an acre; a,rid he urged the submission of an offer. In another letter he stated that the nine acres were owned by Mrs. Debevoise; that “her property, however, being on the Fresh Pond Road,” was “the least valuable;” and he added, “ owing to its location I do not think it necessary to procure this property in order to make a successful sale of the balance.” A few days later, the plaintiff announced that he had a customer who was willing to buy the fifteen acres for $5,000 an acre. His letter ends with this reference to the nine-acre parcel: “I might also be able to sell the other portion on Elm Avenue up to Fresh Pond Road. You might in the meantime communicate with that owner and let me know the lowest cash figure.” The defendant rejected the offer of $5,000 an acre; and the plaintiff set to work to procure a better price. He wrote on July 18 that it might be possible to get $5,500 if part payment could be made by a purchase-money mortgage. To this the defendant replied on July 20 that such a price would not be adequate. “ After consultation,” he. said, “ the parties owning the entire strip to Fresh Pond Road have agreed that they will sell for $6,500 per acre.” “The entire strip to Fresh Pond Road” included the nine-acre parcel. The letter went on to urge that the purchaser should increase the offer already made. The plaintiff, answering this letter, expressed his belief that by taking the whole strip “the price per acre would be a great deal more than leaving the upper portion out; ” he then stated that he was in a position to make a firm offer of $5,500 per acre for the fifteen acres, and concluded: “Later on I might be able to sell the upper portion to another party.” Receiving no word from the defendant, he wrote again on August 3 and renewed the offer, confining it expressly to the fifteen acres. The defendant made no complaint that the offer should include the other parcel, but was still dissatisfied with the price. On August 9 he wrote: “ I think you have overlooked the fact that I wrote you some time since that the price fixed by the hens was $6,500 per acre, but to-submit any offer that you received. ” After this letter nothing happened for a month. On September 9 the plaintiff wrote: “I have another party now in view with the intention of purchasing the fifteen acres. I thought I would write to you and see whether the terms are the same as before,” and to this the defendant replied in substance that the terms remained the same, and that he would be glad to have an offer. A few weeks later a new offer came. On September 25 the plaintiff wrote that he had found a purchaser who would pay $6,000 per acre. He added: “By purchasing these fifteen acres it might be possible that I will dispose of the balance of the property to Fresh Pond Road.” The defendant says that when this offer came to him he wrote that the owners had already rejected an offer of $6,500 from some one else, and that the price would have to be advanced considerably. The plaintiff denies that such a letter was received. A few days later he called with the proposed purchaser, one Roth, at the defendant’s office. There is a conflict between the testimony of the plaintiff and that of the defendant in respect of the ensuing interview. We state the plaintiff’s version. He said that Mr. Roth was willing to pay $6,500 per acre. Mr. Roth was introduced and confirmed the offer. The defendant then refused to sell the fifteen acres for $6,500 an acre, which would amount to $97,500. He insisted on $100,000. He said: “You make it $100,000 and I will sign contract for that property now.” This the proposed' purchaser refused to do. The defendant suggested that the matter go over for a. few days and he would have his client sign a contract. Later he wrote that the price had been increased to $10,000 an acre. With that the plaintiff abandoned the effort to bring about a sale. He sued the owners of the fifteen acres for his commissions. Represented by the defendant as their attorney, they defended the action and denied that they had ever authorized the defendant to find a purchaser for their land. They thus escaped liability. The plaintiff then brought this action against the agent. He had a verdict in his favor at the Trial Term. The Appellate Division held that the defendant’s letter of July 20 gave notice to the plaintiff that he was to sell the entire tract of twenty-five acres, and that in procuring a purchaser for the fifteen acres, though at the prescribed price, he had not fulfilled his contract. The judgment was, therefore, reversed, and the complaint dismissed.</p> <p>The construction to be placed upon the correspondence between the plaintiff and the defendant was a mixed question of law and fact and was properly submitted to the jury. (White v. Hoyt, 73 N. Y. 505; Stanton v. Erie Railroad Co., 131 App. Div. 879; 199 N. Y. 529; Nellis v. Western Life Ind. Co., 207 N. Y. 320; Camp v. Treanor, 143 N. Y. 649; Stokes v. Mackay, 140 N. Y. 640; Kenyon v. Knights Templar Assn., 122 N. Y. 247; Trustees of East Hampton v. Vail, 155 N. Y. 463; Stevens v. Amsinck, 149 App. Div. 220; First National Bank v. Dana, 79 N. Y. 108.) The plaintiff had a perfect right to believe that the price of $6,500 per acre placed upon the property by the defendant referred to the “ fifteen-acre ” plot. (White v. Hoyt, 73 N. Y. 500; Nellis v. Western Life Ind. Co., 207 N. Y. 320; Stevens v. Amsinck, 149 App. Div. 220; Stanton v. Erie R. R. Co., 131 App. Div. 879; 199 N. Y. 520.)</p> <p>The defendant had an absolute right to revoke any authority of the plaintiff at any time before the latter had found a bona fide purchaser ready and willing to purchase. (Van Siclen v. Herbst, 30 App. Div. 255; Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; O’Hara v. Murray, 109 N. Y. Supp. 1011.) In no event could the plaintiff recover in this action, because from his own case it appears that he never found a purchaser ready and willing to comply with the alleged contract of employment. (Rapalje on Real Estate Brokers, 157.) The testimony being- without substantial contradiction that the letter of revocation was actually dictated, typewritten and mailed, a legal presumption of its receipt was created by such evidence. (Oregon S. S. Co. v. Otis, 100 N. Y. 446; Williamson v. Seely, 22 App. Div. 393; McArdle v. Thames Iron Works, 96 App. Div. 142.)</p>

The nature of the controversy and the facts, so far as material, are stated in the opinion. The executors had full and complete title, power and authority to transfer these lands to any one, and by transferring the same to the Schoellhopf Holding Company they vested in that company full and complete record title. (Albany Ex. Savings Bank v. Brass, 59 App.

The facts, so far as material, are stated in the opinion. The Tax Law requires the assessors to assess land and improvements separately. It either .requires the courts to review the assessment in the same way or it means nothing. The assessment was reviewed upon evidence and reduced upon findings as to the value of the land and improvements as a whole and it was error. (L. 1911, ch. 117; N. Y. Tel. Co. v. De Noyelles Brick Co., 154 App. Div. 845;.

The facts, so far as material, are stated in the opinion. The relator not having been taken before a magistrate in Schoharie county as directed by section 844 of the Code of Criminal Procedure, the Police Court of the city of Troy had no jurisdiction of the person of said Leon Lawton, and no jurisdiction to make the commitment which it did committing said Leon Lawton to jail, and said Leon Lawton was illegally confined in jail under said commitment and entitled to his…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 4, 1915, affirming an award of the state workmen’s compensation commission. The facts, so far as material, are stated in the. opinion. The rules of statutory construction of this state forbid giving to the operation of the Workmen’s Compensation Act any extraterritorial effect. (Goodwin v. Young, 34 Hun, 252; American Radiator Co. v. Rogge, 92 Atl.

<p>Insurance (credit) — application for credit insurance—when erroneous statement as to losses in business constitutes breach of warranty in statements in application.</p> <p>Plaintiff took out credit insurance in the defendant company. In stating what purported to be its losses for the year, it omitted to state the insolvency of a debtor from whom a considerable sum was due, plaintiff and other creditors having taken a deed of trust of all the debtor’s property. It appears that such property is wholly insufficient to pay the debts due plaintiff and the other creditors, by all of whom the debtor was discharged from further liability, so that it was evident at the time the application for the policy was made that plaintiff would sustain a loss on this account, although the amount may not have been apparent. Held, that the statement in the application as to the “ losses ” which the applicant had sustained cannot be limited to claims'against insolvent debtors whose estates had been finally settled, and that there was a loss within the ordinary meaning of that term as used in an application for credit insurance such as constituted a breach of warranty on the part of plaintiff.</p>

The facts, so far as material, are stated in the opinion. The comments of the prosecuting counsel in his summing up upon defendant’s failure to testify were in violation of his right and necessarily prejudicial to defendant. (Davison v. State, 24 S. W. Rep. 414.) The evidence established beyond a reasonable doubt that appellant killed Elizabeth Watson from a deliberate and premeditated design to effect her death.

<p>Contract—breach of contract of employment — damages — evidence — erroneous admission of evidence to show profits lost by breach of contract.</p> <p>In an action to recover damages for breach by defendants of a contract employing plaintiff to make for them all of certain articles which they might market during a certain period, evidence is admissible to show that under a former similar contract and under similar general conditions plaintiff had made up a certain number of similar articles as tending to establish the number which he would have made under the later contract if permitted to complete the same. But evidence of the profits made by plaintiff under said former contract is inadmissible to show the profits which he would have realized under his later contract in the absence of evidence showing that the prices received and expenses incurred by him for making said articles were the same under both contracts.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The note sued on was neither usurious nor tainted with usury. (Thurston v. Cornell, 38 N. Y. 281; Gilbert v. Warren, 56 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division was in error in holding that the evidence did not make out .a contract of employment for one year. (Birdsall v. Grant, 37 App. Div. 248; Towle v. Remsen, 70 N. Y. 303.) The plaintiff’s contract was not for a year, but was only for a salary at the rate of $15,000 a year so long as he should work for the defendant. (Martin v. New York Life Ins.

<p>Master and servant — negligence — proximate cause — when evidence fails to show that accident was result of some cause for which defendant was responsible.</p> <p>1. A plaintiff in an action to recover for injuries caused by negligence must fail if the evidence does not show that the-injury was the result of some cause for which the defendant is responsible.</p> <p>2. Where plaintiff, who was inj ured by bags of cement falling upon him from a pile in a storehouse, while he was engaged in taking bags from such pile and loading them on a truck, claimed that the floor on which the bags were piled sagged because it was loaded too heavily and vibrated when a truckload of cement passed over it, thereby causing the bags to fall, he cannot recover if the accident may with equal reason be accounted for on any other theory, and where the evidence does not indicate how the bags that fell .were piled nor how they fell or how many fell, the evidence is insufficient to sustain a verdict for plaintiff. It is not enough to show that the condition of the floor might have caused the bags to fall. The burden is upon the plaintiff to establish that such condition did contribute to cause the injury.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The dismissal of the complaint by the Appellate Division upon the sole ground, as stated in its order, that the instrument in suit, so far as regards the provision for the payment of $20,000, is testamentary in character, wa,s error in law.

<p>Appeal from a judgment, entered January 31, 1914, upon an order of the Appellate Division of the Supreme Court in the second judicial department reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer.</p> <p>The facts, so far so material, are stated in the opinion.</p> <p>Plaintiff was not guilty of contributory negligence. (Eastland v. Clarke, 165 N. Y. 420; Boyle v. Degnon, 47 App. Div. 311; Tully v. N. Y. & T. Steamship Co., 10 App. Div. 463; 162 N. Y. 614; Homer v. Everett, 91 N. Y. 641; Simone v. Kirk, 173 N. Y. 7; Dorney v. O’Neil, 49 App. Div. 8; Grimmelman v. Union Pacific Ry. Co., 70 N. W. Rep. 90; Robinson v. Ocean S. S. Co., 162 App. Div. 159; Best v. N. Y. C. & H. R. R. R. Co., 117 App. Div. 739; Pepper v. Glass Bakery, 155 App. Div. 859; Heffron v. Lackawanna Steel Co., 121 App. Div. 35; 194 N. Y. 598.)</p> <p>The undisputed evidence showed conclusively that the plaintiff was guilty of contributory negligence. (Rohrbacher v. Gillig, 203 N. Y. 413; Weller v. Con. Gas Co., 198 N. Y. 98; Hilsenbeck v. Guhring, 131 N. Y. 674; Pattison v. Livingston Amusement Co., 156 App. Div. 368; Brown v. A. O. Co., 165 App. Div. 702; Stoutenberg v. Dunbar Box Co., 13 Wkly. Dig. 445; McDonnells. Ill. C. R. R. Co., 75 N. Y. 336; The Nikolai, 102 Fed. Rep. 174; Fitzgerald v. Newton Falls Paper Co., 204 N. Y. 184; The Saratoga, 94 Fed. Rep. 221.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Bills of sale come under the Personal Property Law, and chattel mortgages come under the Lien Law. (Prentice v. Slack, 1 Hill, 468; Young v. Wedderspoon, 70 Misc. Rep. 175; 19 Misc.

<p>Pleading — when allegations must he taken as true.</p> <p>Section 522 of the Code of Civil Procedure, which declares that each material allegation of the complaint not controverted by the answer, and each material allegation of new matter in the answer not controverted by the reply, where a reply is required, must for the purposes of the action be taken as true, has application only to allegations of faot.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1915, which affirmed an order of Special Term sustaining a demurrer to and dismissing the complaint in an action brought by plaintiff, a foreign corporatiofi, against a former director to recover damages resulting to the corporation from the payment of illegal dividends out of the capital stock of the corporation.

<p>Motion to amend remittitur. (See 215 N. Y. 507.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 25, 1915, which dismissed an appeal from an order of Special Term finding certain facts and appointing a referee to take and state an account of property and liabilities in a proceeding under section 16 of the Membership Corporations Law for a visitation by a justice of the Supreme Court of the affairs of the Springfield, L. I., Cemetery Society,…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 20, 1914, which affirmed three decrees of the Kings County Surrogate’s Court surcharging the accounts of John 0. Ball, as trustee under the will of Mary Caulfield, deceased.</p>

Appeal, in the first above-entitled proceeding, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1915, which reversed an order of Special Term denying ,a motion to quash a writ of certiorari and granted, said motion.

The action is brought to obtain an adjudication that the shares of stock of the Wells Fargo Express Company represented by certificate No. 7,380 were the property of George 0. Porter at the time of his death, and that the plaintiff has now the legal title thereto.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 27, 1915, which affirmed an order of Special Term appointing change of grade damage commissioners. The following questions were certified: “1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered JuneJ, 1915, which confirmed on certiorari an assessment made by the city engineer of the city of Johnstown against lands of the relator and a determination of the . common council of said city confirming said assessment.</p>

The questions on appeal were whether, on the evidence, plaintiff and an engineer in the employ of defendant were fellow-servants, and whether questions of fact were presented which should have been submitted to the jury.

The plaintiff alleges that defendant is one of sixteen underwriters of a bond issue of the Texas Railways Company, a New Jersey corporation organized in September, 1906, as a holding company, by Jester & Co., a New York banking firm, to take over the securities of a bankrupt Texas railroad which Jester & Co. tried to reorganize. Jester & Co. obtained underwriting contracts from defendant and fifteen others. .

Appeal, in the first above-entitled proceeding, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 26, 1915, which affirmed an order of Special Term denying amotion for a peremptory writ of mandamus to compel the defendants to call and hold the election required by the charter of the village of White Plains (L. 1867, ch. 518, tit. 2, § 4, as amd. by L. 1912, ch. 493), to be held on the third Tuesday of November,…

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 29, 1915, 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.</p>

CROSS-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 1Y, 1913, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee, in an action for an accounting, so as to provide that the referee’s fees and the entire amount of the stenographer’s fees upon the accounting as fixed by the court at Special Term shall be paid by defendants out of the funds found to be…

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 26, 1913, modifying and affirming as modified a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action brought to compel the defendant, as trustee under a mortgage made by plaintiff, to satisfy the mortgage and account for, pay over and deliver to plaintiff all sums of money and all property received…

Division of the Supreme Court in the second judicial department, entered December 10, 1913, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of a contract for the sale and exchange of real property or to recover money paid thereon with interest and damages.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1914, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic’s lien. The defense was failure on the part of plaintiff to properly perform its contract.</p>

The deposits were in the name of Bridget W. Roughan, the mother of plaintiff, and James W. R. Kelly, both of whom were deceased. The defendant claimed that it had no authority to pay the money to any one except the representatives of Bridget W. Roughan and James W. R. Kelly, but that it would pay the money to the plaintiff upon being indemnified by a proper bond.

<p>Appeal from a judgment, entered J anuary 17, 1913, upon an order of the Appellate Division of the Supreme Court in -the third judicial department, which reversed a judgment in favor of plaintiff entered upon a verdict and directed a dismissal of the complaint.</p>

<p>Appeal from a judgment, entered January 3, 1914, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which affirmed an interlocutory judgment of Special Term - sustaining a demurrer to the complaint.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 13, 1915, which reversed an order of Special Term reducing an assessment for purposes of taxation on real property of relator in the city of New York, dismissed a writ of certiorari and confirmed the assessment as levied.</p>

Motions to dismiss appeal and to vacate order granting leave to appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 26, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover for personal injuries alleged to have been sustained through the negligence of defendant.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 23, 1915, which affirmed an order of Special Term overruling a demurrer to the complaint which sets forth a series of acts done by the defendant in his capacity as a director of plaintiff corporation covering a period of time from the organization of the corporation down to shortly before the beginning of this action, which acts resulted in the…

The question presented for determination was whether transfers of certificates of subscription to an issue of additional capital stock of the Canadian Pacific Railway Company were taxable under section 270 of the Tax Law. The Appellate Division held that the transfers were not taxable.

Cross-appeals in the first above-entitled proceeding from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1915, which modified and affirmed as modified an order of Special Term, in proceedings under section 381 of the Election Law, directing that certain ballots be added and certain ballots deducted from the total vote of the relator and the intervenor for the office of representative in Congress for the first…

<p>Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 11, 1913, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover treble damages for alleged forcible disseizen and ejectment. The complaint alleged that the plaintiff and his assignors were the owners and in possession of certain lands in the village of Hammondsport, and of certain boat houses thereon and personal property in said boat houses, the same being located between the right of way of the branch of defendant’s railroad system known as the Bath and Hammondsport railroad, and the waters of the lake; that the defendant on August 29, 1910, wrongfully entered said lands and ejected plaintiff and the other owners therefrom, and forcibly put and kept them out of said property and destroyed said boat houses and other property. The Appellate Division modified the judgment by • striking therefrom the .provision for treble damages.. ■.</p>

The action was brought by plaintiff, who was the owner of the premises in question, under a series of five tax deeds issued by the treasurer of the county of Oneida, to have certain city tax sale certificates that had been previously issued to the city of Utica pursuant to city tax sales declared null and void and surrendered up for cancellation and such taxes declared no longer a lien.

The complaint alleged a cause of action, both at common law; and under the Labor Law, for injuries sustained by the plaintiff, a painter employed by the defendant, caused by a defective scaffolding. The defense was denial and contributory negligence.

Appeal, in each of the above-entitled actions, from a judgment, entered January 12, 1914, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint, in actions brought by the plaintiff, á judgment creditor of the defendant George Kemp, to reach alleged surplus income of the defendant George…

<p>Ex parte motion for re-argument. (See 216 N. Y. 324.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 10, 1915, affirming an award of the workmen’s compensation commission for injuries received by the claimant while working in the state of Connecticut. At the hearing objection to award of compensation was made upon the ground that the accident happened without the state.'