Volume 218 — New York Reports

<p>Appeal from a judgment, entered January 21, 1913', upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiffs entered upon the report of a referee 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>The referee’s construction of the term “ highest previous indebtedness ” as used in the bond was correct. (Paskusz v. Philadelphia Casualty Co., 213 N. Y. 22; Gillet v. Bank of America, 160 N. Y. 549; Owen v. Farmers J. S. Ins. Co., 57 Barb. 518; Amer. Credit Indem. Co. v. Wood, 73 Fed. Rep. 88; Grant v. Lex., etc., Ins. Co., 5 Ind. 23; Sloman v. Credit Guarantee Co., 112 Mich. 25.)</p> <p>“Highest previous indebtedness” or “experience,” as defined in the bond in suit, means highest previous indebtedness which any debtor had paid within twelve months prior to the shipment of the first item of goods upon which the loss occurred. The Appellate Division has so construed this clause, and its judgment should be affirmed. (Steinwender v. Phil. Casualty Co., 141 App. Div. 432; Phil. Casualty Co. v. Camnon & Byers Millinery Co., 133 Ky. 745.) The Appellate Division properly computed the losses on “old customers” under its interpretation of the clause “highest previous indebtedness.” (Bank of California v. Webb, 94 N. Y. 467; Camp v. Smith, 136 N. Y. 187; Harding v. Tifft, 75 N. Y. 465.)</p>

<p>(1.) Murder—Defense op insanity—Erroneous admission of evidence OFFERED BY PROSECUTION IN REBUTTAL-WHEN JUDGMENT OF CONVICTION MUST BE REVERSED BECAUSE TRIAL WAS RENDERED UNFAIR BY IMPROPER AND INTEMPERATE ARGUMENTS AND STATEMENTS OF COUNSEL FOB THE PROSECUTION IN SUMMATION TO THE JURY.</p> <p>The defendant was indicted and tried for the killing of his wife and the jury found a verdict of murder in the first degree. The defense was insanity in the form of melancholia with frenzy, and substantial evideiiee in behalf of the defendant in support of it was received. In rebuttal of evidence as to defendant’s mental condition a writing was received under objection and exception as bearing on the question of the sanity of the defendant at that time. The paper, which was in the Italian language, was also treated by the prosecution in summing up as evidence of premeditation on the part of defendant. No evidence was presented that the name at the end of the writing or any part >i the writing was written by the defendant or by another at his direction or suggestion, or that he could write or read writing in any language, and no justification for its reception in evidence can be found in the circumstances or in the writing itself. Hence, the proof did not authenticate the paper and its admission in evidence was error.</p> <p>(2.) Same.</p> <p>The rule, that the withdrawal of prejudicial matter or an instruction to the jury to disregard it cures an error which may have been committed by its introduction, cannot be applied here since the statements were of a character calculated to irrevocably affect and sway the minds of the jurors and the instructions of the court did not relate to all of the statements and were not sufficiently clear and specific. It is the duty of a trial justice, having been warned by derelictions of duty committed by a counsel conducting a trial, to admonish him to restrain his acts and language within the very reasonable and liberal methods and rules fixed by law.</p> <p>(3.) Same. v</p> <p>The trial was rendered unfair by the use of improper and intemperate arguments and statements by the counsel for the People in his, summation to the jury and the judgment of conviction must be re-: versed.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915, which affirmed an order of Special Term granting plaintiff’s motion for judgment in her favor upon the pleadings. The following questions were certified: “1. Is the defense designated ‘ second ’ contained in the answer to the amended complaint herein sufficient in law upon the face thereof ? 2.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 10, 1915, which reversed an order of Special Term granting a motion for a stay of proceedings in an action of partition and denied said motion. . The facts, so far as material, and the question certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 4,1915, which affirmed an order of Special Term sustaining a demurrer to the fifth separate defense in the amended answer.

<p>Appeal, by permission, from an order of'the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1915, which affirmed an order of Special Term, denying a motion to set aside the summons and complaint herein.</p> <p>The facts,- so far as material, are stated in the opinion.</p> <p>Under the law of the state of,New York the service attempted in this action was insufficient to confer jurisdiction upon the Supreme Court. (Atlantic Trust Co. v. Chapman, 208 U. S. 360; Pennsylvania Steel Co. v. N. Y. City Ry. Co., 198 Fed. Rep. 721; New York, P. & O. R. Co. v. New York, L. E. & W. R. R. Co., 58 Fed. Rep. 268; Union Nat. Bank v. Kansas City Bank, 136 U. S. 223; Fosdick v. Schall, 99 U. S. 235; Meier v. Kansas Pac. Ry. Co., 5 Dill. 476; Wood v. Oregon Development Co., 55 Fed. Rep. 901; U. S. v. De Coursey, 82 Fed. Rep. 302; Sigua Iron Co. v. Brown, 58 App. Div. 436; 171 N. Y. 488; Walling v. Miller, 108 N. Y. 173; Keeney v. Home Ins. Co., 71 N. Y. 396.) The law of the state of Yew York with respect to the service necessary to give the Supreme Court of the state of Yew York jurisdiction over the defendants in this action is controlling upon this appeal. (Jacobs v. Blair, 157 App. Div. 601; Walton v. Bryenth, 24 How. Pr. 357; Lewis v. Randall, 30 How. Pr. 378; Ex parte Knowles, 5 Cal. 300; U. S. v. Campbell, Tapp [Ohio], 29; Davison v. Champlin, 7 Conn. 244; Ely v. Peck, 7 Conn. 239; Gableman v. Peoria, etc., R. Co., 179 U. S. 335; Central Trust Co. v. St. Louis, A., T. & S. F. Ry. Co., 40 Fed. Rep. 426.) Jurisdiction over the defendants cannot be acquired by the Supreme Court by serving the agents of the corporation in this state or by serving the agents of the defendants in the same manner as if the defendants were a corporation. (Booth v. Clark, 17 How. [U. S.] 332; Hale v. Allenson, 188 U. S. 56; G. W. M. & M. Co. v. Harris, 198 U. S. 561; Fowler v. Osgood, 141 Fed. Rep. 20; Sigua Iron Co. v. Brown, 171 N. Y. 488; Keeney v. Home Ins. Co., 71 N. Y. 396; Herring v. N. Y., L. E. & W. R. R. Co., 105 N. Y. 340; Simpkins v. Smith & Parmelee Gold Co., 50 How. Pr. 56; Howard v. Railway Co., 11 App. D. C. 300.)</p> <p>Jurisdiction over receivers of railroads' appointed by Federal courts in foreign states is acquired by service of summons and complaint in accordance with section 432 of the Code of Civil Procedure. (Gableman v. Peoria, D. & E. R. Co., 179 U. S. 335; Eddy v. Lafayette, 49 Fed. Rep. 807; affd., 163 U. S. 456; Central Trust Co. v. St. Louis, A. & T. Ry. Co., 40 Fed. Rep. 426; Nashville Ry. & Light Co. v. Bunn, 168 Fed. Rep. 862; Dale v. Smith, 182 Fed. Rep. 360; High on Receivers [4th ed.], 544; Baer v. McCullough, 176 N. Y. 97; Wilcox v. Jones, 177 Fed. Rep. 870; Stewart v. Harmon, 98 Fed. Rep. 190; Peterson v. Baker, 78 Kan. 337; Le Fevre v. Matthews, 39 App. Div. 232.) The defendants as receivers of the Pere Marquette Railroad Company were validly served in accordance with the provisions of section 432 of the Code of Civil Procedure. (Stewart v. Harmon, 98 Fed. Rep. 90; Palmer v. C. E. Post Co., 85 Hun, 403; Palmer v. Pennsylvania Co., 35 Hun, 369; Hiller v. B. & M. R. R. Co., 70 N. Y. 223; Faltisko v. N. Y., L. E. & W. R. R. Co., 12 Misc. Rep. 478; 151 N. Y. 650; Tuchband v. C. & A. R. R. Co., 115 N. Y. 437; D. & R. G. R. R. Co. v. Roller, 100 Fed. Rep. 738; Brayton v. New York, L. E. & W. R. R. Co., 72 Hun, 602; Palmer v. Chicago Evening Post Co., 85 Hun, 403.)</p>

<p>Tender — when a tender is a condition precedent of a cause of action the failure to make and allege the tender is not cured by-making it at the trial—when dismissal of complaint on the merits is erroneous.</p> <p>1. In an ordinary action at law to enforce a promise to pay a certain sum for a release, it is an essential element in plaintiff ’s cause of action that he should allege and be able to prove that before action brought he had made a tender of the release for which alone defendant had agreed to pay. This obligation is not satisfied by making a tender on the trial.</p> <p>2. Where tender was not pleaded, but an amendment was allowed authorizing proof of tender on the trial, the trial resulted in an order for judgment for plaintiff. The Appellate Division reversed on a defense proven under the Statute of Frauds and ordered judgment for defendant on the merits. Held, that the complaint was properly dismissed by that court because of lack of proof of proper tender of the release, but that it was improper to grant judgment dismissing the complaint on the merits because of the second defense mentioned; the court should have acted on the failure of proof in respect of the release and have dismissed the complaint as on a nonsuit.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The burden was on defendant to prove the gift .by clear and convincing evidence. This burden he failed to meet. The relationship of the parties being in their nature confidential, the transaction will be scrutinized with the extremest vigilance and regarded with the utmost jealousy.

Hyde from a transfer tax and granted said motion. The facts, so far as material, are stated in the opinion. A transfer tax proceeding is a special proceeding and the affidavit interposed on behalf of the comptroller was sufficient to raise an issue or at any rate to authorize testimony to be taken with the right to cross- ' examine the witnesses. (Amherst College v. Ritch, 151 N. Y. 282; Morgan v. Warner, 45 App. Div. 424; 162 N. Y. 612; Matter of Bishop, 111 App.

The facts, so far as material, are stated in the opinion. At the time of this accident the relation of master and servant as between Dale and Saunders Brothers, his general employer, was suspended. At the moment when Dale was fatally injured by the falling of Walsh’s sand in Walsh’s sand pit, he was in the special employment of Walsh, located by Walsh in a place provided by Walsh for the loading of the wagon as directed by Walsh.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 17, 1915, which modified and affirmed as modified a decree of the New York County Surrogate’s Court directing a sale of decedent’s real property for the payment of her debts. The petitioner appeals from the order so far as it modifies the decree of the Surrogate’s Court. The defendants appeal therefrom so far as it affirms any portion of the decree.

Apeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 18, 1915, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree. The facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 22, 1915, which affirmed a decree of the Hew York County Surrogate’s Court admitting to probate the will of Egbert B. Seaman, deceased, and declaring the provisions of the fourth, fifth, sixth and seventh paragraphs of said will to be in all respects valid.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The conditions limiting the absolute gift and the trust created for the benefit of Frances Oakley are illegal on the ground of public policy, as being equivalent to putting a price upon the head of a person and offering an inducement for the termination of his life. (Story on Cont. § 675; Jones v. Randall, Cowp. 37; Ruse v. M. B. L. Ins. Co., 23 N. Y. 516; Warnock v. Davis, 104 U. S. 775; Helmetag’s Admr. v. Miller, 76 Ala. 183; Lord v. Dall, 12 Mass. 115; Fuller v. Met. L. Ins. Co., 17 Conn. 647; Golden Rule v. People, 118 Ill. 492; Franklin L. Ins. Co. v. Hazzard, 41 Ind. 116; Metropolitan Life Ins. Co. v. Ellison, 22 Kans. 199; Union C. L. Ins. Co. v. Hilliard, 63 Ohio St. 478; Carson’s Appeal, 113 Penn. St. 438.)</p> <p>The trust created by the 4th, 5th, 6th and 7th paragraphs of the will is in all respects a proper and valid trust. (Crawford v. Russell, 62 Barb. 92; Banker v. Coons, 40 App. Div. 572; Ruse v. Mutual Ben. Life Ins. Co., 23 N. Y. 516; Fowler v. N. Y. Ind. Ins. Co., 26 N. Y. 422; Wright v. Mayer, 47 App. Div. 604; Shedlinsky v. Budweiser Brewing Co., 163 N. Y. 437; Dunham v. Hastings Paving Co., 56 App. Div. 244; Brien v. Stone, 82 App. Div. 450; Cohen v. Berlin & Jones Envelope Co., 9 App. Div. 425.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 9, 1915, which affirmed an award of the state workmen’s compensation commission. The facts, so far as material, are stated in the opinion. ' At the time of the accident the decedent was not engaged in any of the hazardous employments within the meaning and scope of the Workmen’s Compensation Law.

The facts, so far as material, are stated in the opinion. In the absence of statutory authorization, the court had no power to grant either attorney’s fees or counsel fees and costs. (Code Civ. Pro. § 2338.) No statute authorized the court to grant either attorney’s fees or counsel fees and costs either in the original or amended decree. (Matter of Rapid Transit R. R. Comrs., 197 N. Y. 81, 110; Matter of City of Brooklyn, 148 N. Y. 107; Matter of School Street, 162 App.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 17, 1914, modifying and affirming as modified a final judgment in favor of plaintiffs entered upon the report of a referee with notice of intention to bring up for review the affirmance by the Appellate Division of an interlocutory judgment. 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. Poggenburg’s transfer of the moneys from the Bowery Bank to his individual account with defendant contravened no law, and the defendant by reason thereof was not obligated to investigate the purposes to which Poggenburg devoted withdrawals from this personal account. (Blood v. Kane, 130 N. Y. 514; Schmittler v. Simon, 101 N. Y. 554; Matter of Barnes, 140 N. Y. 568; Nat.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 5, 1915, which affirmed an order of Special. Term granting a motion for a peremptory writ of mandamus requiring. defendants and each of them to reinstate the relator to membership in their several organizations and awarding the relator damages and costs.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>A writ of mandamus does not lie against a foreign corporation. (People ex rel. Ruman v. Nat. Slavonic Society, 144 App. Div. 574; People ex rel. Beharka v. Nat. Slavonic Society, 153 App. Div. 885.) A mandamus does not lie against a voluntary unincorporated association. (Fritz v. Muck, 62 How. Pr. 69; Matter of Weidenfeld v. Keppler, 84 App. Div. 235; 176 N. Y. 562.) The denial of the defendants’ motions to dismiss the complaint and to set aside the verdict as against the defendant brotherhood is reversible error, (Schouten v. Alpine, 215 N. Y. 225; Reid v. Medical Society, 156 N. Y. Supp. 780.) The verdict of the jury for damages was contrary to the law, and the denial by the court of the defendants’ motion to set said verdict aside was reversible error. (McCabe v. Goodfellow, 133 N. Y. 89; Schouten v. Alpine, 215 N. Y. 225.)</p> <p>The court has jurisdiction over the Brotherhood of Painters, Decorators and Paperhangers of America, and mandamus lies against that corporation. (Brown v. Supreme Court of Foresters, 66 App. Div. 263; Matter of Wilcox, 123 App. Div. 86; Meurer v. D. B. & P. Assn., 54 N. W. Rep. 954; People ex rel. Ruman v. Nat. Slavonic Society, 144 App. Div. 574.) Where a foreign corporation comes into a state and enters into a contract with a domestic citizen without having complied with the laws of the state imposing conditions precedent to its right to do business therein it cannot set up its non-compliance with the law to defeat an action against it on the contract itself. (Watertown Fire Ins. Co. v. Rust, 30 N. E. Rep. 772; Pennypacker v. Capital Ins. Co., 20 Am. St. Rep. 395; Marshal v. Reading Fire Ins. Co., 29 N. Y. Supp. 334; Frazin v. Zimmer, 35 N. Y. Supp. 612; H. F. B. Order v. Jones, 84 S. E. Rep. 219; People ex rel. Singer v. Knickerbocker Tea Co., 38 Misc. Rep. 452.)</p>

The facts, so far as material, are stated in the opinion. A policeman suspended from the performance of the duties of his office by the appointing power, ■ hut not removed, is entitled to the salary of the office during the period of suspension.

<p>Insurance (fire) — insurance on hay, produced on farm worked on shares, in name of tenant — effect of provision in contract that title of hay should remain in owner of farm as security for performance by tenant — when tenant has insurable interest in hay — misrepresentations by adjuster of insurance company after destruction of hay by fire that tenant could not recover therefor.</p> <p>A contract for working a farm on shares contained a provision that the title to all the crops raised on the farm during the continuance of the contract should be in the owner of the farm as security for the performance of the contract by the plaintiff until he had fully performed, and then a division between the parties should be made. The defendant’s agents were informed that the crop of hay which was insured by defendant, and afterward destroyed by fire, was held by the plaintiff under the terms of the aforesaid contract as to the title of the latter to the farm produce. After the fire defendant’s adjuster informed the plaintiff that the policy as to the hay was void, because the plaintiff was not the owner thereof when it was insured, and that his only interest was in the surplus that would remain after the stock on the farm had been turned out to grass according to the contract. Plaintiff, relying on this statement, surrendered his claim to the hay. He brings this action to rescind the settlement. Held, that .under the circumstances the plaintiff had an insurable interest in the hay notwithstanding the title in the owner of the farm and that the misrepresentations made by the adjuster to the plaintiff after the loss that the insurance on the hay was void, misled the latter to his injury. Held, further, that while a court of equity cannot grant relief solely upon a mistake of law, there was here a surrender of legal rights intentionally induced and procured by a false representation as to the law governing the case, and plaintiff is entitled to have the contract under which the loss was adjusted rescinded. (Berry v. Am. Central Ins. Co., 132 N. Y. 49, followed.)</p>

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 81, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the actions and the facts, so far as material are stated in the opinion.

<p>Workmen’s Compensation Law— decision of commission final on questions of fact — when Court of Appeals will reverse award on question of law — when injury received in scuffle with fellow-workman is one “arising out of and in the course of employment.”</p> <p>1. The decision of the commission is final on all questions of fact under the Workmen’s Compensation Law (L. 1914, eh. 41) and it is presumed, in the absence of substantial evidence to the contrary, that the claim comes within the provisions of the act (§§ 30, 31), but when the undisputed facts in connection with the testimony of a claimant supported by every favorable inference that can be drawn therefrom do not warrant an award, this court will, upon an appeal from a non-unanimous affirmance by the Appellate Division, reverse upon the question of law thus presented.</p> <p>3. Claimant, employed as a driver by a brewing company, brought his horses into the stable where a fellow-workman proceeded to wash them off with a hose. Claimant told his fellow-workman that he was using' too much water on the horses, when such workman intentionally sprinkled some water on claimant, who then left the place. Shortly afterward claimant, returning to his work, met the other workman and as he passed touched him on the shoulder, saying, “ George, don’t do that again.” The latter slapped claimant on the shoulder, and as claimant turned around a finger of the other man stuck in claimant’s left eye, causing injuries by reason of which it was necessary to remove the eye. Meld, that the evidence is sufñcient to permit the commission to find that the accident (a) arose out of and (b) in the course of employment, and, hence, the award to claimant by the compensation commission was properly affirmed by the Appellate Division.</p>

The facts, so far as material, are stated in the opinion. Plaintiff did not represent conflicting interests and all parties in interest were informed that he was defendant’s attorney. (Keyes v. McKerrow, 180 Mass. 262.) The Appellate Division was not justified in dismissing the complaint. (Joslin v. Cowee, 56 N. Y. 626; Nekarda v. Presberger, 123 App.

Also, appeal from an order of said court, entered October 5, 1915, denying a motion for a new trial on the ground of newly-discovered evidence. The facts, so far as material, are stated in the opinion. The court committed substantial error in admitting over defendant’s objection the testimony of the witness Sellitto and the testimony of the witness Verno as to conversations with the brother of defendant. (Hamel v. B. H. R. R. Co., 59 App.

The facts, so far as material, are stated in the opinion. So far as the relator is engaged in the manufacture of butter, cheese, condensed milk, pasteurized milk, etc., it is a manufacturing corporation. (People ex rel. Western El. Co. v.. Campbell, 145 N. Y. 587; People ex rel. Tiffany v. Campbell, 144 N. Y. 166; People ex rel. Matheson v. Roberts, 158 N. Y. 162; People ex rel. Am.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1916, which modified and affirmed as modified an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to renew a license permitting the petitioner to operate a motion picture theatre. The commissioner of licenses could not unreasonably refuse to renew the petitioner’s license. (People ex rel.

Terry, deceased. The facts, so far as material, are stated in the opinion. The Tax Law requires that the estate of the home in the legacies given by the 15th and 18th clauses of the will shall be valued as if its estate were absolute.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no evidence in this case showing that the interference with travel was dangerous, unusual or exceptional. The conditions proved by plaintiff were those ordinarily and generally brought about in this locality. (Williams v. City of New York, 214 N. Y. 259; Harrington v. City of Buffalo, 21 N. Y. 147; Hatch v. City of Elmira, 142 App. Div. 174; Moran v. City of New York, 98 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The recovery and payment of the judgment of 1903 is not a bar to this action. (Fudickar v. G. M. L. Ins. Co., 62 N. Y. 392; H. M. L. Ins. Soc. v. Brincker, 77 N. Y. 435; Perry v. Dickerson, 85 N. Y. 345; Howard v. Daly, 61 N. Y. 362; Milage v. Woodward, 186 N. Y. 252; Carlton v. Albert, 117 App. Div. 836; La Haye v. Borated Specialty Co., 61 Misc. Rep. 509; Townsley v. B. L. Ins.

The facts, so far as material, are stated in the opinion. In applying a uniform rate of assessment to appellant’s land north of Lacombe avenue and to the land south of that avenue, and thus ignoring the fact that a sewer easement had already been acquired through appellant’s land for which she is about to be assessed, the commissioner of assessments committed an error of law resulting in a violation of the principle that such assessments must he imposed in proportion to…

<p>Workmen’s Compensation Law — award to widow of workman killed while attempting to rescue fellow-workman from place of danger — such award within purpose of act and justified by the facts.</p> <p>1. The Workmen’s Compensation Act rests on the economic and humanitarian principles that compensation should be given at the expense of the business to the employee or his representatives for earning capacity destroyed by an accident in the course of or connected with his work, and this not only for his own benefit but for the benefit of the state which otherwise might be charged with his support, and this purpose ought not to be defeated by placing too narrow a limit upon the nature of the acts which will be regarded as pertaining to his employment.</p> <p>2. The husband of claimant was employed by a contractor on work necessary in the construction of a building. While one of the employees of another contractor was engaged in excavating for the same building, the bank of the excavation caved in and he was caught about twenty feet from where claimant’s decedent, who went to the assistance of the endangered employee, was at work. While attempting to release him, another cave-in occurred and claimant’s husband suffered such severe ' injuries that he subsequently died therefrom. Held, that the accident arose out of and in the course of the decedent’s employment and that an award for his death should be sustained.</p>

The facts, so far as material, are stated in the opinion. The death of claimant’s intestate did not occur while he was engaged in any of the hazardous employments enumerated in the New York State Workmen’s Compensation Law. (McQueeney v. Sutphen & Myer, 167 App. Div. 528; Kohler v. Frohmann, 167 App. Div. 533.) The injuries which resulted in the death of claimant’s intestate arose out of and in the course of his employment. (McQueeney v. Sutphen & Myer, 167 App. Div. 528.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1915, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion. Does the Agricultural Law of the state of New York apply to foreign foodstuffs ?

The trial court ordered the tax sale canceled but upheld the assessment. The facts, so far as material, are stated in the opinion. The terrace occupation by the railroad company is a special franchise, and is exempt from local taxation for sidewalks and other local improvements, in the absence of any statute clearly authorizing the same. The assessment for the sidewalk is an exercise of the taxing powers. (City of Rochester v. Rochester Ry.

The nature of the action and the facts, so far as matetial, are stated in the opinion. There was no change of grade in Baychester avenue; it was the original establishment of a grade. Section 951 of the New York city charter prohibits any damages for the original establishment of the grade of a street, or where the abutting property is vacant. (McCabe v. City of New York, 213 N. Y. 468; Triest v. City of New York, 193 N. Y. 525; People ex rel. Flaxman v. Hennessy, 74 Misc.

31, 1915, 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. This being a common-law action for trespass, the plaintiff was not entitled to recover “ the difference in the value of the property with and without the sewer.” (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 198; Pappenheim v. Met. El. Ry. Co., 128 N. Y. 436; Tallman v. Met. El. Ry.

<p>Eminent domain — land already devoted to a public use cannot be taken in a condemnation proceeding—when a street railway has acquired an easement or right of way along streets laid out on maps but not on the ground, such rights of way cannot be con- • demnedin a proceeding by a city to open such streets.</p> <p>1. A general grant of power to, condemn land does not extend to land which had been devoted to a public use, and where it appears in a proceeding instituted by the city of New York for the opening of streets in a newly-developed residential district that the property owners have tendered to the city conveyances of the lands in the proposed streets subject to and reserving all rights in and to said streets of a designated street surface railway the city cannot condemn the rights of way claimed by the railway company unless the franchise previously obtained by the company is invalid.</p> <p>2. In this proceeding for opening a street it appears that a street 'railway company obtained from the owners an easement or right of way along private streets laid out upon maps, but not then laid out on the ground. Before this proceeding was begun the railway complied with all the provisions of sections 170 and 171 of the Railroad Law (Cons. Laws, ch. 49; L. 1910, ch. 481; amd. L. 1911, ch. 418, formerly §§ 90 and 91, L. 1895, ch. 933) for the extension of its route along' the streets in question, but had not then obtained the permission and approval of the Public Service Commission. (Pub. Serv. Com. L., Cons. Laws, ch. 48, § 53; L. 1910, ch. 480.) Since that time a certificate of approval by the commission has been obtained, of which fact the court has been advised on this appeal. Held, that such certificate having been granted, the railroad company, has a perfected franchise antedating this proceeding, and hence its rights and easements are not subject to condemnation.</p>

The nature of the action and the facts, so far as material are stated in the opinion. 1 The action is barred by the limitation of nine months provided in section 16 of the Liquor Tax Law. (People ex rel. Hill v. United Surety Co., 120 App. Div. 655, Lyman v. Shenandoah, 39 App. Div. 459; Lyman v. B. G. Hotel Co., 33 App.

The facts, so far as material, are stated in the opinion. It was reversible error, as matter of law, for the court to deny the defendant’s motion, made at the close of the People’s case, to acqúit the defendant on the ground that the corpus delicti had not been proved.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in denying defendant’s motion to dismiss the complaint and in directing a verdict for the plaintiff. (Seeley v. Prentiss, etc., Co., 158 App. Div. 853; 216 N. Y. 63; Fairbanks v. Nichols, 135 App. Div. 298; Nyboe v. Doll, 167 App. Div. 225; Breakstone v. Buffalo F., etc., Co., 167 App.

■ The nature of the action and the facts, so far as material, are stated in the opinion. Either of the certificates of license issued to the plaintiff by the superintendent of public instruction fully qualified him for the position of principal of Public School No. 104.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1914, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in refusing to charge the defendant’s request that if the jury believed that the deceased had such a view, that he was negligent in not discovering the approaching train. (N. Y. C. & H. R. R. R. Co. v. Maidment, 168 Fed. Rep. 23; Brommer v. Penn. R. R. Co., 179 Fed. Rep. 577; Chase v. N. Y. C. & H. R. R. R. Co., 208 Mass. 137; Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430; Griffiths v. Long Island R. R. Co., 147 App. Div. 693.)</p>

The facts, so far as material, are stated in the opinion. The accident which caused the death of the deceased arose out of and in the course of his employment. (Gane v. N. H. Colliery Co., 2 B. W. C. C. 42; Graham v. Barr, 5 S. C. L. 391; Keyser v. Burdick & Co., 4 B. W. C. C. 87; City of Milwaukee v. Althoff, 156 Wis. 68; Helmke v. Thilmany, 107 Wis. 216; Ewald v. C. & N. W. R. R. Co., 70 Wis. 420; Newark Paving Co. v. Klotz, 91 Atl.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1916, affirming’ an order of the Appellate Term which reversed an order of the City Court of the city of New York denying’ a motion to vacate an order appointing a receiver of a domestic corporation in proceedings supplementary to execution. The facts, so far as material, and the question certified are stated in the opinion.

The facts, so far as material, are stated in the opinion. The death of claimant’s intestate arose out of and in the course, of his employment. (Costello v. Taylor, 217 N. Y. 169; Dale v. Saunders Bros., 218 N. Y. 59; Valentine v. Smith Angevine Co., 216 N. Y. 763; Bett v. Hughes, 8 B. W. C. C. 362; Larsen v. Paine Drug Co., 218 N. Y. 252; Pierce v. Provident C. & S. Co., 4 B. W. C. C. 242; M’Neice v. Singer S. M. Co., 4 B. W. C. C. 351; Turgeon v. Fox Co., 1 Cal. Ind. Acc.

The nature of the action and the facts, so far as material, are stated in the opinion. The provisions of section 2 of chapter 171, Laws of 1893, for the publication of notice of the time and place of the computation of the annual installment assessment was directory and not jurisdictional. That notice is not essential or even material.

The plaintiffs seek in this action to recover damages for the failure to carry out a contract to convey real property. The plaintiffs and James M. Eequa, the defendant’s testator, entered into a contract whereby Eequa agreed to convey to the plaintiffs, for the sum of $56,913.50, a certain farm of 162 acres in the town of Piscataway, Middlesex county, New Jersey.

' 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 driver was, as a matter of law, the servant of Durr.

The nature of the action and 'the facts, so far as material, are stated in the opinion. It was reversible error to receive the plaintiff’s account books, the monthly statements and the daily report slips based thereon, as proof of the amount or cost of the work. (Vosburgh v. Thayer, 12 Johns. 461; Dooley v. Moan, 57 Hun, 535; Griesheimer v. Tanenbaum, 124 N. Y. 650; Smith v. Rentz, 131 N. Y. 169, 175; Smith v. Smith, 163 N. Y. 168; Collins v. Carlin, 106 App.

<p>Appeal from, a judgment, entered February 7, 1914, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict, and directing judgment in favor of plaintiffs.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The law will never imply a promise which is contrary to or inconsistent with an express agreement of the parties, and the trial court properly submitted to the jury the question whether there was such an express agreement between the plaintiffs and defendant that no other and different agreement could be. implied. (Galvin v. Prentice, 45 N. Y. 162; Andrews v. D. B. Co., 132 N. Y. 348; Ætna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 82; Whiting v. Sullivan, 7 Mass. 107; Mass. Gen. Hosp. v. Fairbanks, 129 Mass. 78; Keith v. De Bussigney, 179 Mass. 255; Hawkins v. U. S., 96 U. S. 689; Municipal Water Works Co. v. City of Fort Smith, 216 Fed. Rep. 431; Third Nat. Bank v. Rice, 161 Fed. Rep. 822.) Defendant received no money from any source, and, therefore, an action for money had and received will not lie against him. (National Trust Co. v. Gleason, 77 N. Y. 40; Carroll v. Chauncey, 132 App. Div. 12; Murphy v. Lindstedt, 142 App. Div. 777; Hendrick v. Goodrich, 15 Wis. 679; Budd v. Huyler, 27 N. J. L. 43; Libby v. Robinson, 79 Me. 168; Wharton v. Walker, 4 B. & C. 163; Lee v. Merrett, L. R. [8 Q. B.] 819; Cobb v. Becke, L. R. [6 Q. B.] 940; Keener on Quasi Contracts, 139.)</p> <p>The defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money. (Moses v. Macferlan, 2 Burr, 1005; Putnam v. Field, 103 Mass. 556; Wheelock v. Hastings, 4 Metc. 504; Emerson v. Bayliss, 19 Pick. 55; Langley v. Warner, 3 N. Y. 327; Earle v. Whiting, 196 Mass. 371; Cole v. Bates, 186 Mass. 584; Metropolitan Life Ins. Co. v. Mayer, 168 App. Div. 828; Gilson v. Boston Realty Co., 82 Conn. 383; Stoakes v. Larson, 108 Minn. 234; Williams v. Smith, 29 R. I. 562.) The contention that defendant is not liable because he received no money is utterly without merit. The credit of the Hunt account was the equivalent of money. (Bleecker v. Balje, 138 App. Div. 706; Putnam v. Field, 103 Mass. 556; Wheelock v. Hastings, 4 Metc. 504; Emerson v. Baylies, 19 Pick. 555; Langley v. Warner, 3 N. Y. 327.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 9, 1915, reversing an award of the workmen’s compensation commission and dismissing the claim of the petitioner.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The deceased was not a casual employee, but if he were he is still protected by the Workmen’s Compensation Law. (Sabella v. Braziliero, 91 Atl. Rep. 1032; Shaeffer v. De Grottola, 85 N. J. L. 444; Dewhurst v. Mather, 1 B. W. C. C . 328; Smith v. Buxton, 8 B. W. C. C. 196; Tombs v. Bomford, 5 B. W. C. C. 338.) The deceased was not an independent contractor, but an employee of the defendant. (Code Civ. Pro. § 1338; McKinley v. Hesson, 202 N. Y. 24; Lenox v. Lenox, 195 N. Y. 359; Untermyer v. City of Yonkers, 188 N. Y. 594.)</p> <p>The deceased was an independent contractor. (Murray v. Dwight, 161 N. Y. 301; Kueckel v. Ryder, 54 App. Div. 252; 170 N. Y. 562; Hexamer v. Webb, 101 N. Y. 377; Matter of Rheinwald, 153 N. Y. Supp. 598; McCoy v. Kirkpatrick, 1 Cal. Dec. 34; Woodcock v. Sartle, 84 Misc. Rep. 485.)</p>

The facts, so far as material, are stated in the opinion. The death of claimant’s intestate did not arise out of his employment. (Fitzgerald v. Clarke & Son, 1 B. W. C. C. 197; Employers’ Liability Assur.

The nature of the action and the facts, so far as material, are stated in the opinion. The resolution .of revocation instead of being legislative in character had rather the nature of a private contract, the subject-matter of which is within the jurisdiction of the courts. The jurisdiction of a court to prevent the passage of a resolution where the proposed action is beyond the power of the municipal body and injuriously affects private rights cannot well be questioned.

The nature of the claims and the facts, so far as material, are stated in the opinion. No loss was caused.claimants on trades designated, and no recovery can be had therefor. (Vrooman v. Turner, 69 N. Y. 280; Simson v. Brown, 68 N. Y. 355; Erdman v. Upham, 70 App. Div. 315; Martin v. Farnsworth, 49 N. Y. 555; Baker v. Drake, 66 N. Y. 518; Markham v. Jaudon, 41 N. Y. 235; Matter of O’Berry, 179 N. Y. 285; People ex rel. Jackson v. Potter, 47 N. Y. 375; People ex rel.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 9, 1915, affirming an award of the workmen’s compensation commission. The following question was certified: 1 ‘ Upon the record is the claimant entitled to an award ? ” The facts, so far as material, are stated in the opinion.

Friedman, a jury clerk. The facts, so far as material, are stated in the opinion. All appointees of the sheriff, any part of whose duties relate to the discharge of the sheriff’s functions in civil matters, are personal agents of the sheriff, and are not in the service of the public, and consequently are without the civil service regulations. (Const.

The defendants, or one or more of them, are in possession of certain real property at Coney Island, in the county of Kings, extending from an avenue known as Surf avenue, southerly to high-water mark of the Atlantic ocean, a distance of about 845 feet on the westerly side thereof, and about 757 feet on the easterly side thereof.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 23, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action in equity to remove a cloud upon title.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The franchise payments in question are legally deductible from the 1900 special franchise taxes. (Heerwagen v. C. S. R. R. Co., 90 App. Div. 275; 179 N. Y. 99; People ex rel. T. A. R. R. Co. v. Tax Comrs., 157 App. Div. 731; 212 N. Y. 472; City of Ithaca v. Ithaca St. Ry., 145 App. Div. 675; Metropolitan St. Ry. v. New York, 199 U. S. 1; Woollcott v. Shubert, 217 N. Y. 212; People ex rel. Manhattan Ry. Co. v. Austen, 132 App. Div. 890; 197 N. Y. 581; Matter of New York City Interborough Ry. Co. v. Moynahan, 148 App. Div. 908; 206 N. Y. 652; People ex rel. I. R. T. Co. v. O’Donnell, 202 N. Y. 313; People ex rel. Mutual Trust Co. v. Miller, 177 N. Y. 51; Matter of Harbeck, 161 N. Y. 21.) The city and its agents are estopped from taking any action which would have the effect of denying the legality of the credits made against the 1900 special franchise taxes in November, 1909, upon the faith of which third parties have changed their position. (Curnen v. Mayor, 79 N. Y. 511; O’Leary v. Board of Education, 93 N. Y. 1; City of N. Y. v. Halsey, 132 App. Div. 192; Rankin v. City of N. Y., 145 App. Div. 838; 204 N. Y. 684; Dillon on Mun. Corp. §435.)</p> <p>The percentages of gross receipts and stipulated sum paid to the city on December 30, 1899, and February 19, 1900, and credited by the comptroller on November 22, 1909, against the 1900 special franchise taxes of the companies in question were not legally deductible from those special franchise taxes. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 199 U. S. 1; Roosevelt Hospital v. Mayor, etc., 84 N. Y. 108; People ex rel. Westchester F. I. Co. v. Davenport, 91 N. Y. 574; People ex rel. Y. M. C. A. v. Sayles, 32 App. Div. 197; 157 N. Y. 677; People ex rel. Twenty-third Street Co. v. Commissioners, 95 N. Y. 554; Bell v. Mayor, etc., 105 N. Y. 139; Delafield v. Brady, 108 N. Y. 524; People ex rel. Cohen v. Butler, 125 App. Div. 384; Tenement House Dept. v. Moeschen, 179 N. Y. 325.) The defendants were not estopped from correcting the illegal entries in the records of the collector of assessments and arrears. (Ryan v. Franklin, 199 N. Y. 347; Maloney v. Horan, 49 N. Y. 111; Winegar v. Fowler, 82 N. Y. 315.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The expenses in suit were assumed by the original plaintiffs, Macfarlane and Stebbins, in connection with their purchase of the power fee. Pardee’s obligations under the leases were all assumed by the purchasers of his half of the fee.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 20, 1915, in so far as it reverses a judgment of Special Term sustaining a demurrer to affirmative defenses set up in the answer and overrules said demurrer. The- following questions were certified: “First.

The facts, so far as material, are stated in the opinion. The sheriff cannot, by imposing duties connected with the execution of civil process upon a county employee, properly in the competitive class, exempt him from the operation of the Civil Service Law. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Simons v. McGuire, 204 N. Y. 253; People ex rel. Hoefle v. Cahill, 188 N. Y. 489;.

The facts, so far as material, are stated in the opinion. The 11th clause did not create a trust life estate in favor of Annie McMahon. (Mullarki v. Sullivan, 136 N. Y. 227; Matter of Conger, 81 App. Div. 493.) Grift of their shares to the nieceshaving been directly and when first mentioned without any limitation, the gift cannot be cut down by any subsequent ambiguous phrase.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 2,1913, which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer.</p> <p>The following question was certified: “Does the com, plaint state facts sufficient to constitute a cause of action ? ”</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The judgment of dismissal in the former action is no bar to the plaintiff’s right of recovery in a new action, if, after the judgment in the former action, she offered to return and renew her marital relationship with her husband. (Bell v. People, 6 Hun, 302; Farber v. Farber, 64 Iowa, 363; Williams v. Williams, 130 N. Y. 193; Uhlmann v. Uhlmann, 17 Abb. [N. C.] 236; People v. Crouse, 86 App. Div. 353; Cargill v. Cargill, 1 Sw. & Tr. 235; Cudlipp v. Cudlipp, 1 Sw. & Tr. 229.)</p> <p>The plaintiff having completely abandoned and deserted defendant on the 31st day of August, 1908, as she affirmatively alleges, the defendant’s defense on that ground cannot be defeated, by the plaintiff’s later offer to return to him. (Williams v. Williams, 130 N. Y. 193; Uhlmann v. Uhlmann, 17 Abb. [N. C.] 238; People v. Crouse, 86 App. Div. 352; Cargill v. Cargill, 1 Sw. & Tr. 235; Cudlipp v. Cudlipp, 1 Sw. & Tr. 229; Basing v. Basing, 3 Sw. & Tr. 516; Murray v. McLaughlin, 1 Scotch Sess. Cas. [2d Ser.] 294; Winchcombe v. Winchcombe, 8 Scotch Sess. Cas. 726; Muir v. Muir, 6 Scotch Sess. Cas. 353; Benkert v. Benkert, 32 Cal. 467; McMullin v. McMullin, 71 Pac. Rep. 108; Hanberry v. Hanberry, 29 Ala. 719; Fishli v. Fishli, 2 Litt. [Ky.] 337; Helser v. Helser, Wright, 210.)</p>

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the first j udicial department, entered April 29, 1916, which affirmed an order of Special Term denying a motion to set aside service of summons and complaint. The following questions were certified: ‘‘1.

<p>New York (city of) —ordinance limiting the height of signs on roofs — construction and effect thereof.</p> <p>The ordinance passed by the board of aldermen of the city of New York limiting the height of signs on roofs is directed against the height and insecurity of the structures prohibited, and from the facts before the court it must be assumed that the board adopted the ordinance in good faith pursuant to the police power vested in it and for the purpose of guarding the public safety and conserving the general welfare. (People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126, distinguished; Southern Leasing Co. v. Ludwig , 317 N. Y. 100, approved.)</p>

The facts, so far as material, are stated in the opinion. Under the true construction of the Ziegler will there is a distinct separation of the duties and functions of the executors and trustees from which it follows that there is a several and separable action in each capacity and a time provided' when the duties and functions of the executors cease and the duties and functions of the trustees begin.

The facts, so far as material, are stated in the opinion. The petition of Frederick S. Lyke for the sale of the dower of Bertha Fahr, an incompetent, is defective, because it fails to set forth the particulars required by section 2350 of the Code of Civil Procedure and, therefore, the proceedings had thereunder are void. (Code Civ.

The facts, so far as material, are stated in the opinion. The court erred in charging the jury that the case at bar was one of direct evidence. (Season v. State, 43 Tex. Cr. Rep. 442; People v. Barone, 101 N. Y. 451; People v. Barberi, 149 N. Y. 256; People v. Martin, 33 App. Div. 284.)

There is no basis for the invocation of the jurisdiction of this court. The lack of exceptions precludes a reversal. (People v. Shattuck, 194 N. Y. 624; People v. Huson, 187 N. Y. 97; People v. Sherlock, 166 N. Y. 180; People v. Cummins, 209 N. Y. 283; Cardozo on Juris, of Court of Appeals, §§ 25, 51; People v. Grossman, 168 N. Y. 47; People v. Wiechers, 179 N. Y. 459.)

ánd construing the will of Jane Y. 0. Cooper, deceased. The facts, so far as material, are stated in the opinion.

<p>Robbery—Evidence identifying defendant—Attempt by defendant to SHOW ON CROSS-EXAMINATION THAT TESTIMONY OF WITNESS WAS NOT SPONTANEOUS BUT SUGGESTED BY PROSECUTION-PROPER ADMISSION OF OTHER EVIDENCE FOR PROSECUTION TENDING TO SHOW IDENTIFICATION WAS SPONTANEOUS—OBJECTIONS THERETO HELD TO BE TOO GENERAL TO BRING QUESTIONS NOW RAISED TO ATTENTION OF TRIAL COURT.</p> <p>Defendant, who was on trial for robbery, in an attempt to show that his identification was not spontaneous, but the product of suggestion, proved by cross-examination that before a witness identified him on the stand, she had identified him in the Police Court. The People then gave evidence tending to prove that the identification was spontaneous by showing the circumstances attending it. Held, that the testimony was properly admitted. A witness who stated these facts was also allowed to state what was said at the time as to such identification by another witness who was present at the identification in Police Court, but had not then been called, under the objection that the words were not spoken in defendant’s hearing. Held, that the objection was too general, and that even if the objection bad been specific, the conversation was single and entire, and the words spoken by one of the parties to it could not be dislocated from their setting, and proved in isolation. The question was a proper one; it called for a statement of what happened and no point was made that the answer should be restricted to the words of one of the speakers, and, on motion to strike out, the point now raised was not fairly brought to the notice of the court. (People v. Jung Hing, 212 iST. Y. 401, distinguished)</p>

The nature of the action and the facts, so far as material, aré stated in the opinion. An heir can maintain an action in partition under section 1537 of the Code of Civil Procedure and establish in that action that a devise contained in the will of his ancestor and a deed and a mortgage or other claim affecting the title to the real premises sought to he partitioned are void.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s lien is superior to the assignment to the First National Bank of Bayonne! (M. & T. Bank v. Winant, 123 N. Y. 265; M. & T. Bank v. Mayor, etc., 97 N. Y. 355; Mayor, etc., v. M. & T. Bank, 130 App. Div. 750; Bates v. Salt Springs Bank, 157 N. Y. 322; McKay v. City, 46 App.

The question presented was whether a prisoner under conviction for a second felony, who had previously received a suspended sentence, is a second offender and consequently denied eligibility for parole. The attorney-general raised the jurisdictional question of the right of the district attorney to pursue an application for mandamus against a state board.

The plaintiff was.a driver'in the employ of a contractor who supplied the city of New York with horses and drivers for sprinkling carts owned and operated by the city for use on the city streets. The plaintiff reported to the city employees, where he was put to work under the general control and supervision of the defendant’s foreman.

<p>Motion to enlarge time for argument until appellant’s restoration to sanity.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1915, affirming an award of the state workmen’s compensation commission for the death of petitioner’s husband, occasioned by being accidentally caught between the door of an elevator and the top of the car. He was employed by the appellants as an elevatorman and janitor.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 9, 1915, affirming an award of the state workmen’s compensation commission. The claimant was employed as an elevator and switch board operator by the P. J. Groll Construction Company, who were in the business of owning and operating apartment houses.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the. fourth judicial department, entered March I, 1916, which reversed ah order of the court at a Trial Term withdrawing a juror and putting the case over the term on motion of the defendant and imposing a trial fee of thirty dollars and defendant’s witness fees to be taxed upon the plaintiff, on trial of an action to recover for personal injuries alleged to have been sustained by…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1915, which affirmed an award of the state workmen’s compensation commission for the death of the claimant’s husband. The deceased, at the time of the accident, was employed as an elevator oiler by the appellant hotel company.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third, judicial department, entered January 21, 1916, which annulled an order of the public service commission, second district, denying for want of power the petition of relator for authority to charge more than two cents a mile for its 500-mile and 1000-mile tickets notwithstanding section 60 of the Railroad Law.

upon a verdict and directing a judgment in favor of plaintiff in an action to recover commissions.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 18, 1913, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term.</p>

<p>Appeal — Appellate Division should make definite and regular new findings upon reversal on question of fact.</p> <p>While a provision in an order of modification by the Appellate Division adjudging a conclusion of fact may be accepted by the Court of Appeals as equivalent to a reversal of an old and the making of a new finding under section 1888 of the Code of Civil Procedure, such method is liable to be productive of confusion and uncertainty in the consideration of appeals by this court and definite and regular findings would be more satisfactory.</p>

Motion to amend remittitur by striking therefrom the words “ of fact” so as to read “ case remitted to Appellate Division to pass upon those questions which have not yet been considered.” (See 217 N. Y. 549.)

It appeared that one Benjamin L. Cowles was a shipbuilder in the city of Buffalo and that he had in his possession an engine, boiler and other material for the building of a tug, but had no money to put the articles together and complete it.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 24, 1914, reversing a judgment in favor of plaintiff entered upon a verdict in an action for malpractice. Also a motion on behalf of appellant to postpone argument. The motion to dismiss was made upon the ground of failure to file the return.

Appellate Division of the Supreme Court, in the third judicial department, entered January 12, 1916, which affirmed an order of the Warren County Surrogate’s Court directing a sale of real estate of Henry M. Bailey, deceased, for payment of an alleged debt.

The intestate was, and for some years had been, employed by the city in its bridge department as a painter and rigger. At the time of the accident, in the course of his duty, he was upon one of a pair of spars suspended by a block and fall under the structure of the Brooklyn bridge over Main street. These spars constituted the framework of a scaffold which had been completed by laying loose boards across the spars to make a footing for the painters.

■ Appeal from an order of the Appellate Division of the the Supreme Court in the second judicial department, entered January 7, 1916, which affirmed an order of Special Term reducing an assessment for purpose of taxation upon real property of the relator for the year 1913.

D. Merriman for an order directing the comptroller of the city of New York to pay to her $2,044.35 of the award made by the commissioners of estimate and assessment in the above-entitled proceeding, with interest thereon from July 21, 1911.

<p>Motion to amend remittitur. (See 215 N. Y. 335.)</p>

<p>Motion to amend remittitur. (See 218 N. Y. 264.)</p>

<p>Workmen’s Compensation Law —■ costs will not ordinarily be awarded against an unsuccessful claimant personally.</p> <p>In cases under the Workmen’s Compensation Law, involving no element of unreasonableness, the award of costs is left by section 23 of the statute to the discretion of the court; and ordinarily in the exercise of that discretion costs will not be awarded against an unsuccessful claimant personally, but will be charged against the state industrial commission, which virtually represents such claimant through the attorney-general.</p>

<p>Motion for re-argument. (See 216 N. Y. 83.)</p>

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 27, 1913, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new «rial

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 10, 1914, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action by the administrators of the holder of one of the first mortgage collateral trust bonds of the Interstate Land and Building Co-operative Association to recover damages from the defendant as successor trustee under the…