Volume 219 — New York Reports

The nature of the action and the facts, so far as mate'rial, are stated in the opinion. Hagen was a debtor of the defendant on June 6, 1912, to the extent of $3,000, and the charging of that indebtedness against the interest account was right.

The nature of the action' and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Supreme Court, rendered December 9, 1915, at a Trial Term for the county of Genesee, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Whether the district attorney personally ordered the material in question to be stored and guarded and for official purposes is a question of fact. (Hart v. H. R. B. Co., 80 N. Y. 622; Wilson v. N. Y. Cont. Co., 129 App. Div. 125; Smith v. N. Y. C. R. R. Co., 177 N. Y. 224; Gordon v. Ashley, 191 N. Y. 186; Hirsch v. Jones, 191 N. Y. 195; Handy v. Met. St. R. Co., 70 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 23, 1914, which affirmed a judgment of the St. Lawrence County Court affirming a judgment in favor of plaintiffs entered upon a decision of a Justice’s Court. The nature of the action and the facts, so far as material, are stated in the opinion. The marital relation alone is not sufficient to establish an agency.

The facts, so- far as material, are stated in the opinion. The court properly admitted evidence of the occurrence which took place in complainant’s place of business on the 2d day of September, 1914. (Johnson v. Comm., 115 Penn.

<p>Cross-appeals by all parties to this proceeding, including the intervenor, each from some part of an order of the Appellate Division of the Supreme Court in the first ■ judicial department, entered July 1, 1916, which reversed an order of the New York Special Term dated June 30, 1916, dismissing the petition of Robert E. Dowling and others on the merits, and which order of the Appellate Division also declared the apportionment as set forth in chapter 313 of the Laws of 1916 invalid so far as it provides for fifty-one senators, and which order of the Appellate Division also declared said apportionment invalid so far as it allots two senators instead of one to Westchester county.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The total number of senators should be fifty and not fifty-one as provided in said apportionment. (Const. of N. Y. art. 3, §§ 2, 3.) The constitutional provision for compactness of senate districts has been grossly violated in the following three counties: Kings, New York and Westchester. (Matter of Sherrill v. O'Brien, 188 N. Y. 185; State ex rel. Attorney-General v. Cunningham, 81 Wis. 440; State ex rel. Barritt v. Hitchcock, 146 S. W. Rep. 40; Matter of Timmermann, 51 Misc. Rep. 192; People v. Thompson, 155 Ill. 451.) The constitutional provision that a block or blocks- in a city, or a town, which, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly.equal in number of inhabitants, excluding aliens, has been violated by chapter 373 of the Laws of 1916. (Const. of N. Y. art. 3, § 4.) The constitutional provision for equality of population has been violated by chapter 373 of the Laws of 1916. (Const. of N. Y. art. 3, § 4.)</p> <p>The constitutional rule of “ compactness” of senate districts has been wholly disregarded and violated in Kings county. (Matter of Sherrill v. O'Brien, 188 N. Y. 185; Const. of N. Y. art. 3, § 4.) The allotment and assembly apportionment of members as set out in this act violates the Constitution. (Const. of N. Y. art. 3, § 5.)</p> <p>An “additional senator” apportioned to a county having three or more senators under the Constitution of 1894 remains “ additional ” to the fifty as long as the county is entitled to such increased representation in the senate. The whole number of senators when increased “ to that extent" cannot be reduced as long as the increased representation continues. (Const. of N. Y. art. 3, § 4.) In altering the senate districts formed under the Constitution so as to obtain equality of' population, the legislature of 1916 did not abuse its discretionary power as to compactness. (People v. Carlock, 198 Ill. 150; People v. Thompson, 155 Ill. 451; Smith v. Bd. of Supervisors, 148 N. Y. 187; Matter of Payne v. O’Brien, 114 App. Div. 890; Matter of Baird, 142 N. Y. 523; Matter of Timmerman, 100 N. Y. Supp. 57; State v. Cunningham, 83 Wis. 90.) The mandatory provision of the Constitution for placing “blocks” in senate districts was complied with in the 1916 apportionment. (Smith v. Supervisors, 148 N. Y. 187; Jackson v. Potter, 47 N. Y. 375.) The court will not declare the act of 1916 unconstitutional on any trivial or technical grounds or by reason of some clerical mistake. (Workmen v. Worcester, 118 Mass. 168; Kelly v. Corson, 8 Wis. 57; People ex rel. Jessup v. Kelly, 33 Hun, 389; O’Grady v. Barnhisel, 23 Cal. 287; People v. Richmond, 25 N. Y. Supp. 144; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 410; Matter of Whitney, 142 N. Y. 531; Bowers v. Smith, 111 Mo. 45; I. Ry. Co. v. Massachusetts, 207 U. S. 79; Monclair v. Ramsdell, 107 U. S. 147.)</p>

Appeal, by permission, from a judgment, entered June 5, 1914, upon an order overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment for defendant upon the nonsuit granted at the Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Riparian rights — Mohawk river — barge canal — the rule that the owner of the contiguous bank of a non-tidal river owns to its center is not applicable to the Mohawk river—owners of uplands contiguous to such river which have been taken for the barge canal are not entitled to compensation for the land connected with the uplands under and to the center line of the river.</p> <p>1. New York as a proprietary or crown colony or as a state has not at any time adopted or administered in its complete integrity the common law of England. While it has been from the beginning the fundamental law, it has yielded to the local conditions and circumstances of the new territory and its people. The colonial legislation and judicial decisions and the state constitutions recognized and applied the general principle and determined what parts of it should be adopted.</p> <p>3. The law of New York has consistently declared through legislation and judicial decisions that the rule that the owner of the contiguous bank of a non-tidal navigable river owns to its center is not applicable to the Mohawk and parts of the Hudson.</p> <p>3. The- fact that a grant of land was made by the British crown before the people of the state became its successor in the title is not of any weight in the determination of this question. Hence, the owners of lands contiguous to the Mohawk river taken for tlie barge canal, are not entitled to compensation as owners for the land connected" with those uplands under and to the center line of the river. The question as to what damages, if any, have been sustained by the upland owners by reason of the interference with their ordinary riparian rights through such taking, however, is remitted to the Court of Claims. {People ex rel. Loomis v. Canal Appraisers, 33 N. Y. 461, followed; Williams v. City of Utica, 317 N. Y. 163, distinguished.)</p> <p>Danes v. State of New York, 169 App. Div. 443, modified.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The taxes in issue are void because the alleged lot No. 17 cannot be identified on the tax map and is not described in the assessment rolls. (Lancaster S. B. Co. v. City of New York, 241 N. Y. 1; Zink v. McManus, 121 N. Y. 259; Ex parte N. Y. C. R. R. Co., 90 N. Y. 342; Underhill v. Keirns, 54 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 10, 1916, which sustained a writ of certiorari and annulled an order of the defendant public service commission.</p> <p>Certain residents and property owners of Douglaston and Douglas Manor in the third ward of the borough of Queens, New York city, applied to the public service commission of the first district for an order requiring the relator in this proceeding, the New York and Queens Gas Company, to extend its gas mains and services in such manner as may be necessary reasonably to supply with gas the communities of Douglaston and Douglas Manor. On a review of the proceedings by the Supreme Court at the Appellate Division, the order of the public service commission was annulled.. From that determination the commission has appealed to this court.</p> <p>Douglaston and Douglas Manor are situated in the northeast corner of the borough of Queens near Little Neck Bay. To the southeast of Douglaston and also within the third ward of the borough is Little Neck, which extends to the borough line. To the west are the communities of Bayside and Flushing which are separated from Douglaston by a salt marsh about half a mile or more wide, and extending a mile inland. Through the middle of the marsh runs a creek navigable for small boats and along each side of the marsh is a high hill. The relator is at present supplying gas to Flushing and Bayside, but its mains and pipes are not sufficient to meet the additional requirements of Douglaston and Douglas Manor. The company’s gas plant is located in Flushing about six miles from Douglaston, and it will, be pecessary to lay a main from the plant to Bayside and carry it from there down the hill, over the marsh and up the hill on the other side to reach Douglaston.</p> <p>Douglaston and Douglas Manor are supplied with electricity for lighting purposes, and gas is desired mainly for cooking during the summer months. The Appellate Division decided that upon the whole case it was unreasonable to require the relator to extend its services in compliance with the order of the public service commission. Further facts appear in the opinion.</p> <p>The Appellate Division erred in its interpretation of subdivision 2 of section 66 of the Public Service Commissions Law, under which the order for extension of mains was made. (State v. G. N. R. R. Co., 153 N. W. Rep. 247; People ex rel. Town of Hempstead v. Tax Comrs., 214 N. Y. 594; People ex rel. Smith v. Hoffman, 166 N. Y. 462; Interstate Commerce Com. v. Ill. Cent. R. R., 215 U. S. 452; People ex rel. Richmond L. & R. R. Co. v. McCall, 216 N. Y. 716.) The Appellate Division erred in not confining its review to the five matters specified in section 2140 of the Code. (Beckwith v. N. Y. C. R. R. Co., 64 Barb. 299; H. S. Co. v. O'Neill, 10 Misc. Rep. 655; 155 N. Y. 644; Reich v. Cochran, 114 App. Div. 141; Von der Born v. Schultz, 104 App. Div. 94; Kellegher v. Forty-second St., etc., Ry. Co., 87 App. Div. 630; People ex rel. R. L. & R. R. Co. v. McCall, 216 N. Y. 716.) The commission’s order requiring the relator, respondent, to “ extend its gas mains and services in such a manner as may be required reasonably to serve with gas that community known as Douglaston, including Douglas Manor,” is reasonable and is supported by the evidence. (Russell v. Sebastian, 233 U. S. 195; Consumers Co. v. Hatch, 224 U. S. 148; Bothwell v. Consumers Co., 13 Idaho, 568; O. R. R. & N. Co. v. Fairchild, 224 U. S. 510; Missouri Pacific Ry. Co. v. Kansas, 216 U. S. 262; Eaton v. Oklahoma Gas & Electric Co., Pub. Util. Rep. 1916A, p. 193; Matter of Pacific Gas & Electric Co., Pub. Util. Rep. 1915A, p. 722; Sisk v. Abbington Electric Co., Pub. Util. Rep. 1915F, p. 835.)</p> <p>The power of the commission is strictly limited to directing “ reasonable” extension of the works and distributing system of a gas company; and whether the commission exceeds its regulative power, in directing an extension, is a question of law affecting property rights under the Federal Constitution. (Ex parte Young, 209 U. S. 123; O. R. R. & Nav. Co. v. Fairchild, 224 U. S. 510.) An extension of this kind is not reasonable unless it affords an adequate return upon the investment. (Smyth v. Ames, 169 U. S. 466; Wilcox v. Consolidated Gas Co., 212 U. S. 19; Oregon R. R. & N. Co. v. Fairchild, 224 U. S. 510.)</p>

<p>Appeal from a judgment, entered August 22, 1914, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff, entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint.</p> <p>The trustees of the village of Bath seek to recover in this action upon the official bond of Daniel J. McBride, treasurer of the village, for moneys lost through the failure and bankruptcy of the George. W. Hallock Bank. McBride was elected treasurer on March .5, 1912, and on April 2, following, he executed and delivered to the trastees the bond in suit, which is in the penal sum of $15,000 and is conditioned for the safekeeping and paying over of the moneys in the village hall fund which had been raised for the purpose of building a village hall.</p> <p>Charles L. Davison, the predecessor in office of the defendant McBride, had received the money in question with other village moneys and had deposited it in the George W. Hallock Bank. The -moneys of the village were carried by the bank in several different accounts. One of such accounts was the aforesaid village hall fund, and it amounted on March 6, 1912, to $23,397.18.</p> <p>No formal transfer of the village funds was made by Davison to McBride, but after the latter’s election the accounts of the village treasurer in the books of the bank were kept in the name of McBride. Both Davison and McBride were employees of the bank and one of the village trustees was its cashier. The moneys of the village were deposited by the village collector the same as deposits were made by other persons and they were credited by the bank to the village treasurer in the proper account. Orders drawn by the president and clerk of the village on the treasurer were paid by the bank in the usual course of business. . Neither the deposits nor the warrants were necessarily presented to the treasurer.</p> <p>The bank failed on May 31, 1912. The only moneys credited to the village accounts after the defendant’s election and before the bank’s failure, were two small deposits amounting to $114.96 — neither of which went into the village hall account. During the same period there was paid out of the village accounts $3,400, some of which was from the village hall fund. At the time of the bank’s failure there remained in that fund $21,840.29.</p> <p>It appeared that on October 20, 1911, the George W. Hallock Bank wrote to the plaintiff the following: “To the Honorable Board of Trustees of the V illage of Bath * * * Referring to the matter of interest on account of deposit of village hall funds, I beg to advise you that we will pay you three per cent for the funds of this account left with us for a period of six months or longer; furthermore, in consideration of the above, we will date the interest on amounts so left back to the time of the original deposit. Trusting this will be entirely satisfactory. I am, Very truly yours, John M. Farr, Assistant Cashier.”</p> <p>On the same day in answer to this letter, the board of trustees adopted the following resolution: “A letter from George W. Hallock Bank was read stating said bank would pay three per cent interest on all village hall funds from time of deposit per quarterly statement. By Trustee Donahee, resolved, that said offer for interest be accepted. Seconded by Trustee Bohan. Carried. ”</p> <p>In January, 1932, the account of the village treasurer was credited with $379.25 as interest on the village hall funds. The defendant McBride, so far as it is shown,' had no knowledge of the adoption of the resolution as to the payment of interest and the trustees gave him no directions as to the deposit of village funds.</p> <p>The provisions of the General Village Law did not apply to the village of Bath and the trustees were not authorized or directed to designate a bank for the deposit of village funds. (Vinson v. Sewer Commission, 158 App. Div. 132; People v. Mabie, 142 N. Y. 343; Haner v. Village of Owego, 165 App. Div. 734; Excelsior Pet. Co. v. Lacey, 63 N. Y. 422; Grimmer v. Tenement House Dept., 204 N. Y. 370; People v. Wilcox, 200 N. Y. 423.) Even if the Village Law applied to this case and the Hallock Bank was in fact designated by the trustees as a depository, these facts constitute no defense to the action. (Tillinghast v. Merrill, 151 N. Y. 135; Yawger v. Am. Surety Co., 212 N. Y. 292; Matter of Hobbs, 17 Ct. of Cl. Rep. 189; Wilkesbarre v. Rockafellow, 171 Penn. St. 177.) Even if the Village Law applies to this case there was no such designation of a bank as is contemplated by its provisions and the village is not estopped from denying that such designation was made. (People v. Supervisors, 14 N. Y. Supp. 867; Supervisors v. Otis, 62 N. Y. 88; N. Y. Rubber Co. v. Rothery, 107 N. Y. 310; Garlinghouse v. Whitwell, 51 Barb. 208.)</p> <p>The George W. Hallock Bank was the depository of the plaintiff. (Mayor, etc., v. Nat. Broadway Bank, 10 N. Y. Supp. 555; 126 N. Y. 665.) The defendant McBride was never actually or constructively the custodian or in possession of the village hall- funds. (Lewis v. Park Bank, 42 N. Y. 463; 2 Daly, 85; 30 How. Pr. 115; Mayor, etc., v. Tradesmen’s Nat. Bank, 11 N. Y. Supp. 95; Chapman v. White, 6 N. Y. 412; Board of Supervisors v. Bank of Havana, 5 Hun, 649; 76 N. Y. 598; Brown v. Wyandot Co., 58 Kan. 672; State v. Bartley, 39 Neb. 353; Matter of State Treasurer, 51 Neb. 116; New Haven v. Fresenius, 75 Conn. 145.) Section 81 of the Village Law (Cons. Laws, 1909, chap. 64) in its provisions as to the depository to be used by the village treasurer applies to the plaintiff. (Visscher v. Hudson River R. R. Co., 15 Barb. 37; Clarkson v. Hudson River R. R. Co., 12 N. Y. 304; Staats v. Hudson River R. R. Co., 3 Keyes, 196; Grimmer v. Tenement House Dept., 204 N. Y. 370; Bush v. D., L. & W. R. R. Co., 166 N. Y. 210; County of Orange v. Elsworth, 98 App. Div. 275.)</p>

<p>Public Health Law—Christian Science practitioners—When, statute DOES NOT PROHIBIT OFFER OF PRAYER FOR HEALING OF DISEASE IN ACCORDANCE WITH THE TENETS OF THE CHRISTIAN SCIENCE CHURCH.</p> <p>The Public Health Law, forbidding the practice of medicine by a person not licensed and registered as a physician contains the qualification that the statute shall not be construed to affect the practice of the religious tenets of any church (161-173) one of the tenets of the Christian Science Church is the healing of physical disease by prayer; that prayer to God will result in complete cure of particular diseases in a prescribed individual ease. The defendant was not a licensed physician, but he was a member of the Christian Science church and one of its recognized practitioners, who in the present case, assumed by silent prayer and for a money consideration to practice the healing of a patient of trouble with the eyes and a pain in the - back. He testified that he was practicing Christian Science as laid down by the church and denied practicing medicine. He made no diagnosis and prescribed no other remedy. On an indictment for violating the Public Health Law, Held, that although defendant did “treat”’ the investigator by “any (some) means or method,” as the word is used in the General prohibition contained in the statute (160 subd. 7) the statute is broad enough to permit offering prayer for the healing of disease in accordance with the recognized tenets of the Christian Science Church. The religious tenets of a church must however, be practiced in good faith to come within the exception. When such practice is a fraud or pretense it is not excepted, from the general prohibition, and when a person claims to be practicing the religious tenets of any church particularly where compensation is taken therefor and the practice is apart from a church edifice or the sanctity of the home of the applicant, the question whether such person is within the exception should be left to a jury as a question of fact. Hence the Court erroneously charged the jury: “ If you find from the evidence in this case that this defendant did engage in the practice of medicine as alleged in the indictment, within the definition which I have given to you, it is no defense that he did what he did from any sense of duty, or that he did these acts in the practice of the religious tenets of the Christian Science church.”</p>

The facts, so far as material, are stated in the opinion. It was error to receive extrinsic evidence for the purpose of construing the will of Smith Ely.

The nature of the action and the facts, so far as material, are stated in the opinion. All lines should be drawn to the center point of the lake. (Gouverneur v. Nat.

. Appeal from a judgment entered January 13, 1915, 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 a decision of the court on trial at Special Term and dismissing the complaint upon the merits. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 6, 1914, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Plaintiff’s claim is barred by the Statute of Limitations. (Adams v. Fort Plain Bank, 36 N. Y. 255; Bathgate v. Haskins, 59 N. Y. 533.) The relation of attorney and client may be terminated at the will of the client, with or without cause, and the client thereupon becomes liable for the reasonable value of the attorney’s services up to the time of the termination of the relation. (Andrewes v. Haas, 214 N. Y. 255; Matter of Dunn, 205 N. Y. 328; Matter of Robbins, 189 N. Y. 422; Tenney v. Berger, 93 N. Y. 524; Bathgate v. Haskins, 59 N. Y. 535; Gustine v. Stoddard, 23 Hun, 99; Johnson v. Ravitch, 113 App. Div. 810; A. C. C. Works v. Dillon, 111 App. Div. 418; Matter of Prospect Avenue, 85 Hun, 257; Matter of Paschal, 77 U. S. 483.)</p> <p>The appellants’ plea as to the Statute of Limitations is untenable. (Matter of Mayor, etc., 127 App. Div. 650; Ga Nun v. Palmer, 202 N. Y. 483; Wood on Limitations [3d ed.], §119; Brooklyn Bank v. Barnaby, 197 N. Y. 210; Koster v. Lafayette Trust Co., 207 N. Y. 336; Bartlett v. Odd Fellows Savings Bank, 79 Cal. 218; Kelly v. Security, etc., Co., 186 N. Y. 16.) The respondent’s assignors, admittedly, were dismissed without cause; and, consequently, upon the confirmation of the commissioner’s report, the respondent’s assignors became entitled to recover the entire stipulated compensation. (Marsh v. Holbrook, 3 Abb. Ct. App. Dec. 176; Carlisle v. Barnes, 102 App. Div. 573; 183 N. Y. 272; Martin v. Camp, 161 App. Div. 610; Barney v. Fuller, 133 N. Y. 605; Andrewes v. Haas, 160 App. Div. 421; 214 N. Y. 255; Murray v. Waring, etc., Co., 142 App. Div. 514; Matter of Albers Realty Co., 140 App. Div. 277; Matter of Fitzsimmons, 174 N. Y. 23; Fischer-Hansen v. Brooklyn Heights, etc., Co., 173 N. Y. 492.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The notice of intention to sue incorrectly stating the time when the accident happened was fatally defective and barred any recovery on the part of the plaintiff. (L. 1886, ch. 572; Casey v. City of New York, 217 N. Y. 192; MacMullen v. City of Middletown, 187 N. Y. 37; Learned v. Mayor, etc., 27 Misc.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 24, 1916, which affirmed an order of the Onondaga County Court vacating a prior order in supplementary proceedings. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. Petitioner, by letter of November 12, 1907, definitely canceled the contract. After the receipt of this letter, respondent’s rights were limited to a demand and (in a proper case) the recovery for services, if any, rendered up to that time. Respondent made no such demand then or at any time. (Tenney v. Berger, 93 N. Y. 524; Matter of De Angelis v. Bank for Savings, 74 Misc. Rep. 394; Matter of Robbins, 61 Misc.

The facts, so far as material, are stated in the opinion. The words “ county of New York,” used in article 10, section 1, and article 12, section 3, must be construed to apply to the territory within the old city and county of New York. The county of Bronx, formed of part of that territory, is subject to the same limitations and its officers must be elected in odd-numbered years. (People ex rel. Field v. Aldermen, 89 Hun, 460; 147 N. Y. 685; McGrath v. Grout, 69 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 13, 1916, which affirmed an order of Special Term discharging the" relator, an alleged insane person, from the custody of the superintendent of the St. Lawrence State Hospital for the Insane, and from further detention under a commitment to that institution.</p> <p>The facts,- so far as material, are stated in the opinion.</p> <p>The provision in the release, that Savage shall not go into the state of Massachusetts and that he shall report at specified times, is proper and was well within the power of the court to make. There is no hard and fast rule requiring either an unconditional release or a return to custody. (Matter of Andrews, 126 App. Div. 794; Matter of Welch, 74 N. Y. 299; Matter of King, 42 Hun, 610; Matter of Knowack, 158 N. Y. 491; Matter of Wentz, 9 Misc. Rep. 242; Matter of Dickie, 7 Abb. [N. C.] 417; Matter of Colah, 3 Daly, 529; Biggs v. Terry, 1 Myl. & C. 675.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 26, 1916, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings. 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.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 18, 1916, which affirmed an award of the State Industrial Commission under the Workmen’s Compensation Law. The facts, so far as material, are stated in the opinion. Claimant, is not entitled to compensation as he was not engaged in a hazardous employment.

Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 20, 1916, as reverses that part of an order of Special Term which denied a motion for an injunction pendente lite restraining the defendant from publishing a notice that a certain question would be submitted to a vote of the electors of the city of Buffalo at the coming election, from incurring any expense on account of said city…

The facts, so far as material, are stated in the opinion. There was a fatal variance between the allegations of the indictment and the proof, and the court erred in refusing to discharge the defendant at the close of the People’s case. (People v. Dumar, 106 N. Y. 502; People v. Stark, 136 N. Y. 538; People v. Hartwell, 166 N. Y. 361; People v. Albow, 140 N. Y. 130; People v. Sumner, 33 App.

<p>Railroads — common carriers — delivery of goods by carrier upon sidings or private tracks of consignees — such delivery as is customary and reasonable must be made — carrier not required to deliver loaded cars over private tracks within limits of manufacturing plant.</p> <p>1. The limits of place within which delivery of goods by a carrier is due will vary with varying conditions. In the nature of things no inflexible formula can furnish a solution of that problem. But it can be safely said that there must be such a delivery as is customary and reasonable.</p> <p>2. A railroad’s duty to carry is a duty to carry over its right of way. Private sidings, owned and maintained by shippers, do not constitute the right of way, and the use that the carrier may be compelled to make .of them is subordinate and incidental to the fulfillment of its primary functions of carriage along its route. - Reasonable delivery may involve trifling departures from the route, as where the- carrier’s engines, after switching cars upon a siding, move them a short distance to the doors or platforms of a factory. But reasonable delivery does not involve the carrier’s co-operation in the division of labor and of functions between the sections of an extensive plant, and whenever complicated shifts and transfers are made by shippers or consignees within their own plants, they must be made at their own cost and without allowance from the carrier.</p> <p>3. Defendant’s plant covers 180 acres, contains 140 buildings and employs 15,000 men. Within this area, the defendant has laid twelve miles of standard gauge tracks. Six standard gauge electric engines are in ordinary use by the defendant in moving cars upon these tracks. All these tracks, and also several narrow gauge tracks, cross one another at many points within the plant. Freight is loaded and unloaded at not less than eighteen separate buildings. About 100 cars enter the plant daily, and as many more leave it. Oars are moved from the platforms as soon as loaded or unloaded, transferred to the storage tracks, and made to give way to other cars which take their places. The cars on the storage tracks must be sorted, distributed to their proper buildings, shunted, switched, loaded, unloaded and returned. Other cars distribute raw material and partly manufactured products among the appropriate shops and mills and storehouses throughout the system. Plaintiff has transferred its cars to and from agreed storage tracks which are -within defendant’s yard. The incoming cars are taken by defendant from these tracks and distributed among its buildings and unloaded. The outgoing cars are brought to the storage tracks by similar agencies. The finding of fact is that “the successful and economical prosecution of the business of the defendant requires that all such internal movements of cars, whether standard or narrow gauge, in and about the plant, should be under the direction and control of the defendant.” Held, that these transfers and distributions must be made by the owner of the plant, and no allowance can be made for the movement of cars from the storage tracks to the points where they are loaded or unloaded or for their subsequent return.</p> <p>H. Y. G. & H. R. R. R. Co. v. General Electric Co., 167 App. Div. 736, reversed.</p>

<p>Sheriff—vacancy in office between the fifteenth of October and the general election in November following — such vacancy should be filled at a special election called for that purpose.</p> <p>Where a vacancy occurs in the office of sheriff between the fifteenth of October and the general election day in November following, it cannot be filled at that election, but a special election should be called for that purpose, of which not less than thirty or more than forty days’ notice must be given. (Const, art. 10, §§ 1-5; County Law [Cons. Laws, ch. 11], § 180, subd. 2; Public Officers Law [Cons. Laws, ch. 47], § 88; Election Law [Cons. Laws, ch. 17], § 292, as ami, by L. 1911, ch. 891, § 62.) (People ex reí. Pames v. Cowles, 13 N. Y. 350, distinguished.)</p> <p>Matter of Mitchell v. Boyle, 175 App. Div. 905, reversed.</p>

The budget for the city of New York for the year 1916 was duly submitted by the board of estimate and apportionment to the board of aldermen and duly adopted by the board of aldermen.

Leavitt, deceased, and directing distribution of her estate. The facts, so far as material, are stated in the opinion. Unquestionably the distribution in December, 1911, was an extraordinary dividend and was not a distribution of capital. (People ex rel. McClure Publications v. Purdy, 161 App.

Appeal, by permission, in the first entitled action, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 25,1916, which affirmed an order of Special Term denying a motion by defendants to vacate a temporary injunction.

The relator was appointed a typewriting copyist in the bureau of school buildings, department of education, city of New York, in 1913, at a salary of $600 per annum. When the budget for the year 1915 was adopted it contained an appropriation for said bureau of said department for three typewriting copyists at $600, $750 and $900 per year respectively, and the relator was then holding the position at $600 per annum.

The facts, so far as material, are stated in the opinion. The contractor was under no duty to repair any portion of the pavement laid within the railroad franchise area, and the order for a mandamus properly issued. (Bank of Montreal v. Recknagel, 109 N. Y. 482; Pennell v. Mayer, 27 J. & S. 279; Richards v. Warring, 39 Barb. 42; Ripley v. Larmouth, 56 Barb. 21; Niederstein v. Cusick, 83 App. Div. 36; Fox v. International Hotel, 41 App.

The nature of the action and the facts, so far as .material, are stated in the opinion. The power of appointment given to John Mortimer was a beneficial power and lawful, and he had the absolute right to dispose of it by appointment, or by last will and testament, as provided in his mother’s will. (Cutting v. Cutting, 86 N. Y. 536; Crooke v. County of Kings, 91 N. Y. 458; Farmers Loan & Trust Co. v. Shaw, 127 App.

Court in the second judicial department, entered April 16, 1915, which modified and affirmed as modified a judgment of Special Term construing the will of Augusta M. Harper, deceased. The facts, so far as material, are stated in the opinion. The general legacies were not charged upon the land, nor are they payable from the proceeds of its sale. (Fries v. Osborn, 190 N. Y. 35; Lynes v. Townsend, 33 N. Y. 558; Lediger v. Canfield, 78 App.

<p>Appeal from a judgment, entered January Y, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial 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>There was abundant affirmative proof of the negligence of the defendant. (Tousey v. Roberts, 114 N. Y. 312; McRickard v. Flint, 114 N. Y. 222; Gray v. Siegel Cooper Co., 187 N. Y. 377; Wilcox v. City of Rochester, 190 N. Y. 137; Sackheim v. Pigueron, 215 N. Y. 62; Simmons v. Peters, 85 Hun, 93; Joliffe v. Miller, 126 App. Div. 763; Hillyer v. Laight Street Stores Co., 133 App. Div. 125; Cohn v. Ansonia Realty Co., 162 App. Div. 791.) Negligence of the defendant having been shown as the cause of the injuries and death,.the claim of contributory negligence was a defense to be pleaded and proved by defendant, and plaintiff was not bound to show in the first instance that the decedent was free from contributory negligence. (Sackheim v. Pigueron, 215 N. Y. 62.) Even if the burden of showing that the decedent was not guilty of negligence contributing to his injuries and death had been with the plaintiff, there was sufficient evidence to require the submission of this issue to the jury. (McDonald v. Met. St. R. Co., 167 N. Y. 66; Galvin v. Mayor, etc., 112 N. Y. 223, 228; Smith v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 224; Kraus v. Birnbaum, 200 N. Y. 130; Lalor v. City of New York, 208 N. Y. 431; Cardell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330; Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 420; Riseman v. Havemeyer, 84 N. Y. 647; Baxter v. Auburn & Syracuse El. R. R. Co., 190 N. Y. 439; Irish v. Union Bag & Paper Co., 103 App. Div. 45; 183 N. Y. 508; Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234.)</p> <p>The evidence introduced by the plaintiff upon the trial of the action failed to establish any negligence on the part of this defendant. (Paul v. Con. F. W. Co., 133 App. Div. 314.) The evidence introduced upon the trial of the action affirmatively established contributory negligence on the part of the deceased and the dismissal of the complaint was, therefore, proper. (Sackheim v. Pigueron, 215 N. Y. 62; Diepoldt v. N. Y. Baking Co., 72 Hun, 403; Hickey v. Taaffe, 105 N. Y. 26; Williams v. D., L. & W. R. R. Co., 116 N. Y. 628; Fink v. H. B. Candy Co., 112 App. Div. 387.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The guaranty executed by Oliver L. Jones is not an absolute guaranty of payment, but a conditional one; and before the plaintiff can recover upon it it must show that it has used due diligence to collect from JohnC. B. Eckerson and the Mine Hill Quarry Company, the makers of the notes and the primary debtors. (Hernandez v. Stilwell, 7 Daly, 360; Bank of Sandusky v. Follett, 2 West.

The nature of the action and the facts, so far as material, are stated in the opinion. The accident upon which this action is predicated could have been foreseen by the exercise of reasonable prudence and foresight. (Dorr v. Lehigh Valley R. Co., 152 App.

The facts, so far as material, are stated in the opinion. There was no'evidence supporting the finding and award of the commission, of August eighteenth, allowing claimant for the entire loss of use of the hand. (Matter of Rockwell v. Lewis, 168 App. Div. 674.)

The facts, so far as material, are stated in the opinion. There is no evidence of any kind to support the finding that claimant has lost the use of his hand. (Matter of Petrie, 215 N. Y. 335; G. W. Helme Co. v. Common Pleas, 87 Atl. Rep. 72; Cunningham v. B. C. & B. Rolling Mills, 155 N. Y. Supp. 797.)

The facts, so far as material, are stated in the opinion. The board of supervisors of the county of Westchester has the absolute power and right to fix the salary of the employees of the county of Westchester, regardless of the rules and regulations of the state civil service commission. (Highway Law, § 30, as amd. L. 1910, ch. 567; County Law, § 12, subd. 5, as amd.

Cross-appeals from, a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 14,1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 30, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The- nature of the action and the facts, so far as material, are stated in the opinion. The deceased was guilty of contributory negligence as a matter of law. (Swart v. N. Y. C. R. R. Co., 81 App. Div. 402; McSweeney v. E. R. R. Co., 93 App.

Further facts are stated in the opinion. The summary proceedings provided for in, sections 57, 74, 87 and 103 of the Public Service Commissions Law, under which the commission is commanded to enforce all its orders, are special and extraordinary, and the provisions of the Code of Civil Procedure prescribing the practice governing writs of mandamus under the common law have no application. (People ex rel. Doran v. Harwick, 48 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 26, 1916, which affirmed an order of Special Term granting a motion to vacate and set aside -jan order directing service of the summons upon the /.■defendant, respondent, without the state by publication. The following questions were certified: “1.

<p>Workmen’s Compensation Law — service of notice of injury required by section 18 of the law — when failure to serve such notice improperly excused by commission.</p> <p>The requirement of section 18 of the Compensation Law that written notice of disability and claim should be promptly served ought not to be treated as a mere formality Or be dispensed with as a matter of course whenever there has been a failure to serve such notice. The attention of the commission should be fastened upon the question whether upon the proofs in a given case the circumstances exist which are sufficient to justify such failure, and if they do exist that fact should be properly stated as one of the facts which constitute the basis of the award.</p> <p>Matter of Bloomfield v. November, 172 App. Div. 917, reversed.</p>

The facts, so far as material, are stated in the opinion. The order, so far as it relates to Charles H. Wilson, must be reversed because he is not a party to this proceeding, he has an adequate remedy at law, he has shown no clear legal right to a writ, and there was no appropriation. (Schieffelin v. Komfort, 212 N. Y. 520; People ex rel. Schneider v. Prendergast, 172 App. Div. 215; People v. Green, 1 Hun, 1, 12; People ex rel.

<p>Appeal—Surrogates’ Courts — power of Appellate Division, when appeal is taken from decision of Surrogate’s Court, upon the facts, to decide such facts and make a final determination of the controversy — will—persons incompetent to receive letters testamentary — construction of statute declaring who is incompetent to serve as an executor (Code Civ. Pro. § 2564)— when letters testamentary maybe denied to one incapacitated by illness from performing duties of executor.</p> <p>1. The provision of section 1317 of the Code of Civil Procedure which authorizes the Appellate Division to render final judgment in certain cases has to do with appeal sin general and is not inconsi stent with the provisions of section 2768, authorizing the appellate court to reverse, affirm or "modify the decree or order appealed from. When the facts, so far as developed before the surrogate, are undisputed, the Appellate Division may make a final determination of the controversy.</p> <p>2. Testator nominated three executors, one of whom predeceased him, another renounced the appointment and the appointment of the third was objected to on the ground that such executor was incapacitated by the impairment of his physical and mental powers, caused by paralysis, from performing' the duties of sole executor of the estate. Held, that the order of the Appellate Division holding the executor incompetent is appealable and presents the question of law whether the words “ want of understanding ” as used in the statute (Code Civ. Pro. § 2564) imply an entire lack of mental capacity. Held, further, that while old age or bodily infirmities, lack of business experience and capacity, or ignorance of the law do not disqualify, the words of section 2564 are more than a mere restatement of the common-law disability of imbeciles and lunatics; that the Surrogate’s Court should not grant letters to an unadjudged incompetent, nor to one unable, by reason of incurable bodily disease, to understand the duties of a given trust sufficiently to safeguard the interest of the living, and that the order of the Appellate Division should be affirmed.</p> <p>Matter of Leland, 175 App. Div. 62, affirmed.</p>

May 6, 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. Intestate was guilty of contributory negligence as matter of law. (Rega v. N. Y. C. & H. R. R. R. Co., 164 App. Div. 433: Hogan v. N. Y. C. & H. R. R. R. Co., 208 N. Y. 445; Wheeler v. Sundstrom & Stratton Co., 143 App. Div. 499; Conway v. Naylon, 170 App.

Cross-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 2, 1916, which affirmed an order of Special Term directing commissioners of estimate appointed in proceedings to acquire land required for the opening of Newton avenue in the borough of The Bronx to ascertain and determine the compensation which should justly be made in accordance with chapter 1006 of the Laws of 1895, to Augustus Van…

<p>Bills, notes and checks—presumption, by indorsement of note before delivery, that indorser is liable to the payee may be rebutted by evidence — evidence — Code Civ. Pro. § 829 — when interest of witness is contingent and uncertain, he is not disqualified under that section.</p> <p>1. While the indorsement of a note, though before delivery, gives rise to a presumption that a prior indorser is liable to the payee, the presumption can be rebutted by evidence that the indorsement was in truth for the accommodation of the payee. (ISfeg. Inst. Law [Cons. Laws, eh. 38], § 114.)</p> <p>2. One is not “a person interested in the event ” under section 829 of the Code of Civil Procedure merely because the outcome may save him the trouble of another law suit. There is a difference between an interest in the event and an interest merely in the question. To make out an interest in the event, the judgment must not merely leave open the possibility of another action. It must be evidence in the other action, and evidence adverse to the witness.</p> <p>3. Plaintiff was prior indorser on a note made to the order of defendant’s testator and indorsed it before delivery to the payee. The bank at which it was discounted recovered judgment against this plaintiff; later the payee made payment to the bank and obtained an assignment of the judgment. Plaintiff now claims he indorsed the note for the accommodation of the payee and brings this action to restrain the enforcement of the judgment. He called the maker of the note to state a conversation with the payee which would have shown that both plaintiff and the maker signed for the accommodation of the payee. Objection was made on the ground that the transaction was a personal one with the payee, who was then dead, and that the maker was incompetent to state it. Held, that any interest which he might have in the outcome of this action is contingent and uncertain, and he is, therefore, qualified as a witness.</p> <p>Franklin v. Kidd, 167 App. Div. 958, reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to submit this case to the jury on the theory that this defendant, the brewing company, might be found liable to the plaintiff as the employer of the deceased under the Employers’ Liability Act, so called (Labor Law, § 200). (Kenz v. B. & W. P. Brewing Co., 162 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 19, 1916, which affirmed an order of Special Term overruling a demurrer to the amended answer. The following questions were certified: “1.

Appeal, fey permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 11, 1916, which affirmed an order of Special Term denying plaintiff’s motion for judgment in its favor upon the pleadings. The following questions were certified: “1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 2, 1916, which reversed an order of the Queens County Surrogate’s Court denying an application by the respondent herein for an order directing the Union Trust Company, as executor of the last will and testament of William W. Cole, to pay to said respondent the sum of $10,000, the amount directed in said last will and testament to be applied for the purchase of an annuity for the said Clarissa Spráke, instead of purchasing for her the said annuity.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The testator’s clearly expressed intent should not be thwarted by the court unless it is contrary to law or against public policy. (Crabb v. Young, 92 N. Y. 56; Tilden v. Green, 130 N. Y. 29; Matter of White, 208 N. Y. 64.) The right of election claimed by the applicant would render practically nugatory what otherwise would, in many cases, be a wise and effective form of testamentary bounty. (Reid v. Brown, 54 Misc. Rep. 481.) The direction to the executor to purchase an annuity imposes upon it a duty which is of the nature of a trust, the faithful performance of which should not be interfered with by the court. (Peterson v. Chemical Bank, 32 N. Y. 21; Cuthbert v. Chauvet, 136 N. Y. 326; Shelton v. King, 229 U. S. 90; Nichols v. Eaton, 91 U. S. 716.)</p> <p>Where an amount is directed to be expended for the purchase of an annuity for a person named in a will, that person may elect to accept. the amount instead of the annuity. (Wakeman v. Merrick, 37 L. J. Ch. 45; Lord v. Battey, 17 Beav. 303; Smith v. Pybus, 9 Ves. Jr. 567; Palmer v. Craufurd, 3 Swanst. 482; Hicks v. Ross, L. R. [14 Eq.] 141; Evans v. Walker, L. R. [3 Ch. Div.] 211; Yates v. Yates, 28 Beav. 637; Woodmeston v. Walker, 2 Russ. & M. 197; Bent v. Cullen, L. R. [6 Ch.] 235; Hill v. Rattey, 2 Johns. & H. 634; Powers v. Haynes, L. R. [8 Eq.] 262.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, 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>It was error to submit this case to the jury with instructions that they might find that this was a dangerous machine and that the defendants were guilty of negligence in permitting the plaintiff to work at it, there being no evidence to support such a finding, and the exceptions to the court’s instructions with respect thereto present reversible error. (Toye v. U. S. Dressed Beef Co., 141 App. Div. 332; Harley v. B. C. M. Co., 142 N. Y. 31; Burke v. Witherbee, 98 N. Y. 562; Valentino v. Garvin Machine Co., 139 App. Div. 139; Carlson v. Bridge Co., 132 N. Y. 273; Ryan v. Cortland C. G. Co., 13 App. Div. 467; Hart v. Vil. of Clinton, 115 App. Div. 761; Burns v. Mining Co., 188 N. Y. 175; Mane v. Erie R. R. Co., 198 N. Y. 221; United States v. Am. B. T. Co., 167 U. S. 224.)</p> <p>The Labor Law, or at least that part commonly spoken of as the Employers’ Liability Act, is directly applicable to the determination of the issues in this case. (Lipstein v. P. L. Society, 154 App. Div. 732; Corbett v. N. Y. C. & H. R. R. R. Co., 151 App. Div. 159; McKeon v. P. & G. Co., 76 Misc. Rep. 599; 154 App. Div. 741; Kerwin v. L. I. R. R. Co., 157 App. Div. 898; Drury v. Am. Fruit Co., 163 App. Div. 509; Sullivan v. G. S. C. Co., 155 App. Div. 391; 208 N. Y. 581; Coleman v. Ruggles-Robinson Co., 159 App. Div. 272; Geloneck v. Dean S. P. Co., 165 Mass. 202.) The evidence conclusively establishes that the machine here used in connection with the stick furnished .by the defendants was not a reasonably safe appliance, either under the act or at common law. (Shannahan v. E. E. Corp., 204 N. Y. 550; Evans v. Pearson & Son, 125 App. Div. 666; 194 N. Y. 569; Croghan v. Heddon Const. Co., 147 App. Div. 631; MacPherson v. Buick Motor Co., 160 App. Div. 55.) There was no error in submitting to the jury the question of the suitability or sufficiency of the appliance furnished to the plaintiff with which to push the meat into the hopper of the machine. (Going v. A. S. & W. Co., 141 Ala. 536.)</p>

<p>Appeal from a judgment, entered June 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 verdict and directing the 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>Since the evidence presented a question of fact for the jury, the Appellate Division, on reversing the judgment, should have granted a new trial instead of dismissing the complaint. (Fealey v. Bull, 163 N. Y. 397; McDonald v. Met. St. Ry. Co., 167 N. Y. 66; Colt v. S. A. R. R. Co., 49 N. Y. 671; Bagley v. Bowe, 105 N. W. Rep. 171; Faber v. City of New York, 213 N. Y. 411.)</p> <p>Upon the facts proven no cause of action was made out by plaintiff. Plaintiff’s intestate was a trespasser and the defendant owed him no active duty. (Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; Johnson v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 82; Magar v. Hammond, 183 N. Y. 387; McNeven v. Arnott, 4 App. Div. 133; Quill v. Empire St. T. Co., 159 N. Y. 1; Walsh v. F. R. R. Co., 145 N. Y. 301; Larmore v. Crown Point I. Co., 101 N. Y. 391; Downes v. Elmira Bridge Co., 179 N. Y. 136; Birch v. City of New York, 190 N. Y. 397; Weitzmann v. Barber Asphalt Co., 190 N. Y. 452.)</p>

The facts, so far as material, are stated in the opinion. The attempted disposition in trust of one-half of the residuary estate to establish a school for girls was not for a public or charitable purpose and is invalid. (Matter of Davis, 77 Misc. Rep. 72; Matter of Shattuck, 193 N. Y. 446; Atty.-Gen. v. Soule, 28 Mich. 153; Robertson v. Bullions, 9 Barb. 64; Matter of Robinson, 203 N. Y. 380; Starr v. Selleck, 145 App.

The relator, an honorably discharged veteran of the Civil War, was appointed a clerk in the office of the commissioner of jurors of the city of New; York in September, 1895, and continuously served -in that capacity up to and including’ November 1st, 1914, when with the approval and consent of the civil service commission and the commissioner of jurors he was duly transferred to the position of attendant in the Supreme Court.

review an order denying the application of defendant Caroline S. Spencer for permission to amend her answer. The facts, so far as material, are stated in the opinion. The rule that taxes on real estate are a charge upon the income of the life tenant rather than the principal contemplates income-producing real estate and must always yield to a contrary intention of the testator to be gathered from the will or from the extrinsic facts.

Apeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 19, 1916, which affirmed an interlocutory judgment entered upon an order of Special Term sustaining a demurrer to the answer. The following question was certified: “ Should the demurrer to the second defense in the answer be sustained ? ” The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal- from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 9, 1915, which affirmed a judgment of Special Term surcharging the account of the appellant herein as trustee under the will of Henry Villard, deceased. 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 first judicial department, entered May 15, 1916, which modified and affirmed as modified an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The following questions were certified: “1.

Hoffman, deceased. The facts, so far as material, are stated in the opinion. It is fundamental law governing the action of trustees that a trust fund shall not he invested in connection, or admixed, with any other fund. (Doud v. Holmes, 63 N. Y. 635; Matter of Stafford, 11 Barb. 353; Otto v. Van Riper, 31 App. Div. 278; McAllister v. Commowealth, 30 Penn.

The nature of the action and the facts, so far as material, are stated in the opinion. The deed is absolutely void. Its delivery was a pretense; its existence being kept concealed until Saltzsieder’s death. Timm always held it as his agent. (Roosevelt v. Carow, 6 Barb. 190; Churchill v. Oilman, 15 Wend. 656; Koehler v. Hughes, 148 N. Y. 507; Ten Eyck v. Whitbeck, 156 N. Y. 341; Babcock v. Babcock, 53 How. Pr. 97; R. S. Bank v. Bailey, 34 Misc. Rep. 247; 70 App.

The facts, so far as material, are stated in the opinion. It was improper to receive proof of the profits of the business in which the deceased was engaged. (Masterton v. Vil. of Mount Vernon, 58 N. Y. 391; Walsh v. N. Y. C. R. R. Co., 204 N. Y. 58; Gombert v. N. Y. C. R. R. Co., 195 N. Y. 273; Weir v. Union Ry., 188 N. Y. 416; Hewlett v. B. H. R. R. Co., 63 App. Div. 423; Read v. B. H. R. R. Co., 32 App.

Detmold, deceased. The facts, so far as material, are stated in the opinion. The appellants have in no way waived their right to appeal from the order of the Appellate Division modifying the original decree. (Adair v. Brimmer, 96 N. Y. 35.) These appellants have in no way waived their right to appeal to this court.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1916, which affirmed an order of Special Term dismissing a petition for the review of the apportionment enacted by chapter 373 of the Laws of 1916.</p>

<p>Appeal from a judgment, entered September 15, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants, entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff in an action under section 1035 of the charter of the city of New York (L. 1908, ch. 490) to foreclose a transfer of tax lien.</p>

The plaintiffs entered into a contract with the city of New York, acting by and- through the aqueduct commissioners, wherein the plaintiffs agreed to furnish all the materials and labor for the performance, and in a good, substantial and workmanlike manner construct a dam on the Croton river at Muscoot mountain in the towns of Somers and Bedford, Westchester county, to be known as the Muscoot dam, with its gate houses, overflow and other appurtenances.

<p>Appeal from a ■ judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 30,1915; which affirmed a judgment of the Court of Special Sessions of the city of New York sustaining a demurrer to an information charging defendant with unlawfully engaging in business as an undertaker without having first obtained a license as required by section 295 of the Public Health Law, as amended by chapter 71 of the Laws of 1913. The Appellate Division held the statute unconstitutional.</p>

Appeal by plaintiff, by permission, from so much of an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1916, which reversed an order of Special Term in so far as it granted, plaintiff judgment on the first cause of action and granted defendant’s motion for judgment in its favor.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 22, 1916, which modified and affirmed as modified an interlocutory judgment of Special Term awarding plaintiff equitable relief by rescission, accounting and injunction. Plaintiff, the author of an encyclopedia, entered into a contract with the defendant for its publication, by the terms of which he was to be paid certain royalties.

The defense is that the position was a personal and confidential one, and that the applicant’s tenure ended by operation of law.

e., southerly, at high speed and without warning past a subway station platform for north-bound trains, striking and killing intestate, while she, a passenger on said platform, was looking over its edge for a north-bound train.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 13, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at Trial Term.</p>

Roberts, deceased, which consols were stolen from the plaintiffs and were subsequently transferred by the defendant The Securities Company on forged indorsements, first into the name of one of the plaintiffs as an individual and later, also on forged indorsements, into the name of the defendant Equitable Securities Company in whose name they are now registered.

Jacob Weidmann, plaintiffs testator, loaned the Zust Motor Company, aNew York corporation, $3,000, for which he was given a chattel mortgage upon a chassis and certain machinery, lathes, presses and tools of every kind at No. 235 West Fiftieth street, in the borough of Manhattan, city of New York. Mr. Weidmann died and the Zust Motor Company became bankrupt.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1916, which affirmed a judgment of the court of Special Sessions of the city of New York convicting the defendant of a violation of section 79-b of the Labor Law in failing to provide two means of exit and escape from fire on each floor of a building.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 15, 1916, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint which alleged that on March 20, 1913, Charles Rice, while in the employ of the defendant and as a result of its negligence, was killed in the city of Rochester by taking hold of a wire which was in contact with a high voltage wire of the…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 2, 1916, which affirmed an order of Special Term sustaining a demurrer to a defense set up in the answer.

That at 3:55 p. M., October -3rd, 1914, relator entered himself as being on duty in the Police Blotter in á space left for that purpose, preceding an entry made by the Police Commissioner in such blotter at 3:50 p. M. of'the same day, in violation of Paragraph 486 of the Rules and Regulations of the Police Department. Second.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 25) 1916, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus requiring the state board of equalization of the state of New York to convene and prepare a statement of the aggregate amounts of assessments upon which the state comptroller shall compute the state tax for 1915 for the five counties comprised in the city of New York, imposed pursuant to chapter 729 of the Laws of 1915, which statement shall include the assessed valuation of real property as equalized by said board and the assessed valuations of personal property, exclusive of the assessed valuations of hank stock for 1914, for each of said counties and transmit to the state comptroller such statement.</p>

The complaint alleged that plaintiff while driving a wagon south on Third avenue in the city of New York was thrown therefrom and received the injuries complained óf as a consequence of a collision with one of defendant’s trucks which was being driven north on the wrong side of the street in violation of city ordinances relating to rules of the road.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 18, 1916, which modified and affirmed as modified an order of the New York County Surrogate’s Court assessing a transfer tax upon certain remainder interests which were suspended from taxation in a former tax proceeding and which have since fallen in.</p>

The intestate, a resident of New Jersey, was killed in Texas. The plaintiff, a resident of New Jersey, was appointed executrix in that state and ancillary letters testamentary issued to her in this state. The defendants are foreign corporations.

The testator, while employed as a fire cleaner in one of defendant’s round houses, was run over by an engine and died from the injuries received.

Appeal- from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, affirming a judgment in favor of-plaintiff entered upon a verdict in an action to recover for loss sustained by reason of personal injuries received by plaintiff’s infant son through the alleged negligence of the defendant, his employer, in requiring said infant to operate an unguarded meat-chopping machine.