Volume 220 — New York Reports

The facts, so far as material, are stated in the opinion. The legislature in section 94 of the Railroad Law has decreed that twenty-five per centum of the expense of making changes to an existing grade crossing in accordance with the provisions of section 91 shall be borne by the municipal corporation within which such grade crossing existed.

The facts, so far as material, are stated in the opinion. The district attorney of Kings county had charge of the criminal action which resulted in the conviction and sentence of John Bassi, and he is charged by statute and by settled rules of law with the duty of seeing that the judgment obtained is enforced. His duty and interest are such as warrant his application for -a peremptory writ of mandamus. (Cons. Laws, ch. 11, § 200, subd. 4; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no issue joined upon the trial nor presented by the record to sustain the disapproval by the Appellate Division of any part of finding 5.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 30, 1915, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The defendant Queeasborough G-as and Electric Company was grossly negligent. (Braun v. Buffalo G. E. Co., 200 N. Y. 484; Paine v. El. Ill. Co., 64 App. Div. 477; Wagner v. B. H. R. R. Co., 69 App. Div. 349; 174 N. Y. 520; Horning v. H. R. Tel. Co., 111 App. Div. 122; 186 N. Y. 552; Morhard v. Richmond L. & R. R. Co., 111 App. Div. 353; Webster v. Richmond L. & R. R. Co., 158 App. Div. 210; Harroun v. Brush El. L. Co., 12 App. Div. 126.) Any question as to contributory.negligence of the deceased was for the jury. (Dutcher v. El. Co., 123 App. Div. 765; Doing v. R. R. Co., 151 N. Y. 579; Coppins v. R. R. Co., 122 N. Y. 557; Hayes v. B. & D. Co., 41 Hun, 407; Magee v. N. Y. Tel. Co., 213 N. Y. 232; Morrison v. R. R. Co., 63 N. Y. 613; Shaw v. Jewett, 83 N. Y. 617; Hart v. Bridge Co., 80 N. Y. 622; G. T. Ry. Co. v. Ives, 144 U. S. 408.)</p> <p>Plaintiff failed to establish any negligence on the part of the defendant telephone company. (Citrone v. O’Rourke Eng. Const. Co., 188 N. Y. 339; Henry Case, 201 N. Y. 140.) The plaintiff’s intestate was guilty of contributory negligence as matter of law. (Thompson on Negligence [4th ed.], 4624; Watson v. Duncan, 62 N. Y. Supp. 257; Kern v. Welz & Zerweck, 151 App. Div. 432; People’s Telephone Co. v. Conant, 198 Fed. Rep. 624.)</p> <p>Plaintiff wholly failed to establish any negligence on the part of the defendant electric light company. (Huscher v. N. Y. & Q. E. L. & P. Co., 165 App. Div. 241; 158 App. Div. 422; Estabrook v. Newburgh L., H. & P. Co., 141 App. Div. 683; Moscato v. Prince Line, Ltd., 164 App. Div. 412; Geer v. N. Y. & Penn. Tel. & Tel. Co., 144 App. Div. 874; Broudy v. Detroit, etc., Ry. Co., 151 N. W. Rep. 575; Leeds v. N. Y. Tel. Co., 178 N. Y. 118; Hall v. N. Y. Tel. Co., 214 N. Y. 49; Magee v. N. Y. Tel. Co., 213 N. Y. 232; Heskell v. A. L., H. & P. Co., 209 N. Y. 86; Flinn v. W. D. M. Assn., 64 App. Div. 490.) Plaintiff’s own proofs conclusively establish that the death of her intestate was brought about by his own contributory negligence, which precludes her right to recover. (Johnson v. Syracuse Lighting Co., 193 N. Y. 592; Geer v. N. Y. & Penn. Tel. & Tel. Co., 144 App. Div. 874; La Duke v. Hudson River Tel. Co., 124 App. Div. 106; Piedmont Elec. Ill. Co. v. Patterson, 84 Va. 747; Junior v. Missouri Elec. Light & Power Co., 5 Am. Electr. Cas. 369; Griffin v. N. Y. Tel. Co., 141 App. Div. 1; Holm v. Empire Hardware Co., 137 App. Div. 96; McNamee v. W. U. Tel. Co., 140 App. Div. 874; 160 App. Div. 785.)</p>

defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and. the facts, so far as material, are stated in the opinion. The evidence required a submission to the jury of the question of defendant’s negligence. (Kent v. J. S. Ry. Co., 205 N. Y. 361; Simons v. B. H. R. R. Co., 142 App. Div. 36; Becker v. Koch, 104 N. Y. 394; President, etc., Man.

The facts, so far as material, are stated in the opinion. The steel of the American Bridge Company having been sold and delivered within the state of New Jersey was not “ furnished ” under the Lien Law, and the bridge company’s hen cannot be sustained. (B. I. F. Co. v. G. C. S. Mfg.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant’s motorman was negligent and his negligence was the proximate cause of the accident. (McFarland v. E. W. L. R. R. Co., 136 App. Div. 194; Mullen v. Schenectady Ry. Co., 214 N. Y. 300; Smith v. Rochester Ry. Co., 197 N. Y. 600; Dempsey v. B. H. R. R. Co., 98 App. Div. 182; Monck v. B. H. R. R. Co., 97 App.

<p>New York (city of) — practical construction — resolution of board of estimate and apportionment recommending increase in salary of assistant engineer—when surrounding circumstances and construction of resolution by authorities and parties concerned indicate that the resolution related to only one position under that name.</p> <p>The board of estimate and apportionment of the city of New York adopted a resolution recommending that the salary of the position of assistant engineer in the department of docks and ferries be fixed at $4,000 per annum, which was concurred in by the board of aldermen. The title of assistant engineer is given to a number of positions in that department, hence an ambiguity exists which opens the door to proof of extraneous circumstances which may throw light on the meaning of the resolution. As bearing on the question of practical construction, held, that the circumstances which led to and which followed the adoption by the board of estimate and apportionment of the resolution sustain the construction placed thereon by the city, that it related only to the salary of one assistant engineer in the department, and justify the denial of the plaintiff’s claim. (Smith v. Board of Education N. Y., 208 N. Y. 84; Pitt v. Board of Education, 216 N. Y. 304; People ex rel. Stokes v. Fully, 108 App. Div. 345, 349, distinguished.)</p>

<p>Negligence — railroads — collision between trolley car and wagon in which plaintiff was riding — erroneous reversal of judgment for plaintiff—when contributory negligence of plaintiff question of fact for jury, not one of law for the court.</p> <p>Plaintiff brings this action for injuries sustained from being thrown from a wagon with which a trolley car of the defendant collided. At the time of the accident plaintiff was riding in a loaded covered wagon drawn by one horse, which was driven by his father. The evidence offered by plaintiff tended to show that when they started to cross the tracks of defendant on Thirty-sixth street plaintiff looked out of the wagon and saw a car approaching about a block away. When the wagon was upon the track he looked again and the car was about one hundred and twenty-five feet distant. He told the driver to go faster, which he attempted to do. Plaintiff looked a third time, when the horse and the front of the wagon were across the track, but before the wagon was clear of the track the car collided with it and plaintiff was thrown to the ground. The Appellate Division reversed the finding of the jury that plaintiff was free from contributory negligence, reversed the judgment for plaintiff, entered upon the verdict, and dismissed the complaint. Held, error; that plaintiff cannot be held chargeable with contributory negligence as matter of law for attempting to cross the tracks, under the circumstances disclosed, by reason of a failure to halt or change his course. The reasonableness of care exercised by him was one of fact, for determination by a jury.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 2, 1916, which affirmed an award of the state industrial commission under the Workmen’s Compensation Law. The injuries sustained by Franz Glatzl and which resulted in his death were not sustained in the course of and did not arise out of his employment as a driver. (Smith v. Price, 153 N. Y. Supp. 221; Newman v. N. & E. L. Assur.

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 granting a motion by plaintiff 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.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 12, 1915, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>If, as the relator claims, the amendments to the Code impose new and additional duties upon him, which he is obliged to perform, for which he is entitled to compensation, under section 26 of the Judiciary Law, then the later legislation, to that extent, is unconstitutional. (People ex rel. Mitchell v. Haws, 11 Abb. Pr. 261; 32 Barb. 207; 20 How. Pr. 29; Moore v. Nation, 80 Kan. 672; Harrison v. Colgan, 148 Cal. 69; Woods v. Brogan, 13 Idaho, 607; Foreman v. People, 209 Ill. 567; Butler County v. James, 116 Ky. 575; McCracken County v. Reed, 31 Ky. Law Rep. 31; State ex rel. Gordon v. Moores, 61 Neb. 9.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 21, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s testatrix alleged to have been occasioned through the negligence of defendant.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant was guilty of negligence. (Blaisdell v. Long Island R. R. Co., 152 App. Div. 220; Exton v. Central R. R. Co. of N. J., 62 N. J. L. 7; Payne v. Binghamton Ry. Co., 156 App. Div. 1; Mullen v. Schenectady Ry. Co., 214 N. Y. 300.) The nonsuit was improperly granted upon the ground of the contributory negligence of the plaintiff’s testatrix. (Sackheimv. Pigueron, 215 N. Y. 62; Cranch v. B. H. R. R. Co., 186 N. Y. 319; Parsons v. N. Y. C. & H. R. R. R. Co., 113 N. Y. 355; Terry v. Jewett, 78 N. Y. 338; Brassell v. N. Y. C. & H. R. R. R. Co., 84 N. Y. 241; Smith v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 224; Woodworth v. N. Y. C. & H. R. R. R. Co., 55 App. Div. 23; 170 N. Y. 589; Massoth v. D. & H. C. Co., 64 N. Y. 527; McCaffrey v. B. & O. R. R. Co., 201 N. Y. 115; Lent v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 473.)</p> <p>There is no evidence from which the jury could say that the defendant was guilty of any negligence which caused this accident. (Stierle v. Union R. Co., 156 N. Y. 70, 684; Palmer v. Pennsylvania R. R. Co., 111 N. Y. 488; Palmer v. D. & H. C. Co., 120 N. Y. 170; Morris v. N. Y. C. & H. R. R. R. Co., 106 N. Y. 678; Kelly v. Manhattan Ry. Co., 112 N. Y. 443; Endres v. International Ry. Co., 129 App. Div. 785; Kozlowski v. R., S. & E. R. R. Co., 142 App. Div. 245; Orafina v. N. Y. State Rys., 148 App. Div. 417; Young v. Erie R. R. Co., 158 App. Div. 14; Phelps v. Erie R. R. Co., 134 App. Div. 720.) The nonsuit should be sustained upon the ground of the contributory negligence of deceased. Plaintiff’s own evidence shows her to have been guilty of contributory negligence as a matter of law. No other inference is permissible from the evidence. (Wilds v. H. R. R. R. Co., 29 N. Y. 315; Von Atzinger v. N. Y. C. & H. R. R. R. Co., 83 Hun, 120; Steves v. O. & S. R. R. Co., 18 N. Y. 422; Warner v. N. Y. C. R. R. Co., 44 N. Y. 455; Woodard v. N. Y., L. E. & W. R. R. Co., 106 N. Y. 369; Strickland v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 357; Getman v. D., L. & W. R. R. Co., 162 N. Y. 21; Legg v. Erie R. R. Co., 141 App. Div. 876; 206 N. Y. 665; May v. N. Y. C. & H. R. R. R. Co., 137 App. Div. 7; Wahler v. Long Island R. R. Co., 137 App. Div. 17.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 1, 1915, affirming an award of the state workmen’s compensation commission. The facts, so far as material, are stated in the opinion. On October 23, 1909, common-law marriages were illegal in this state. (L. 1909, ch. 19, §§ 11, 13, 25; Pettit v. Pettit, 105 App. Div. 312.) In October, 1909, common-law marriages in this state were valid.

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

The facts, so far as material, are stated in the opinion. The petitioner’s claim is barred by the Statute of Limitations (Tax Law, § 132) which provides that the deed shall he conclusive two years from the date of recording the same. (Brase v. Miller, 195 N. Y. 204; Bryan v. McGurk, 200 N. Y. 332; Meigs v. Roberts, 162 N. Y. 371; Peterson v. Martino, 210 N. Y. 412; Wallace v. International Paper Co., 84 App.

The facts, so far as material, are stated in the opinion. The instrument found upon the person of the respondent and offered in evidence was in fact a bludgeon, and the court committed no error in leaving its character as a question of fact to the jury. (People v. Criscuoli, 164 App. Div. 119; Regina v. Sutton, 13 Cox C. C. 649.) People’s Exhibit ¡No. 1, concededly the larger end of a boy’s baseball bat, is not a bludgeon within the meaning of the Penal Law.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 19, 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>Negligence —master and servant — railroads — death of bralteman caused by fall from top of freight car — no evidence that alleged defects in roof of car caused the fall of plaintiff’s intestate.</p> <p>1. When the precise cause of an accident is left to conjecture and may be as reasonably attributed, to a condition for which no liability attaches as to one for which it does, then, the plaintiff is not entitled to recover, and the evidence should not be submitted to the jury.</p> <p>3. This action is to recover damages for the death of plaintiff’s intestate. It is claimed by plaintiff that the death of decedent was caused by certain defects in and about the roof of a car from which he fell while switching it on a siding. There is no evidence to show the relationship of cause and effect between the defects alleged and the injury to decedent. Judgment for plaintiff entered on the verdict must, therefore, be reversed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The equities of William B. Kerr as an accommodation indorser are at least equal to the equities of the plaintiff, and in case of equal equities, subrogation is not allowed. (Strickland v. Magoun, 119 App. Div. 117; Title G. & T. Co. v. Haven, 196 N. Y. 487; 214 N. Y. 468; Union Trust Co. v. M. & P. J. R. Co., 63 N. Y.311; 27 Am. & Eng.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 13, 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.

The nature of the action and the facts, so far as material, are stated in the opinion. This writing’ is not a sufficient acknowledgment or promise to pay by the testator to relieve the note sued upon from the bar of the Statute of Limitations. (Tompkins v. Hazen, 165 N. Y. 18; Crandell v. Morton, 24 App. Div. 547; Zinn v. Stamm, 152 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 7, 1915, affirming a judgment in favor of plaintiff entered upon a verdict bringing up for review an order of the Appellate Division, entered December 4, 1914 (166 App. Div. 904), which affirmed an interlocutory judgment of Special Term dismissing a supplemental answer.

Appeal, by permission, from a judgment, entered November 27, 1916, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of plaintiff, entered upon a verdict directed by the court and directed a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment, entered June 3, 1915, upon an order of the Appellate Division of the Supreme Court in the fourth 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 judgment for defendants on a nonsuit granted at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The floor beams of the sixteenth floor, including the opening where the duct was to be placed, should have been thoroughly planked over at the time of the accident. (L. 1909, ch. 36, § 20; Drummond v. Norton, 156 App. Div. 126.) Under section 20 of the Labor Law the obligation to keep the sixteenth floor planked over rested upon the Eastman Kodak Company. (Bohnhoff v. Fischer, 210 N. Y. 172; Rooney v. Brogan Const. Co., 194 N. Y. 32.)</p> <p>The failure of the Eastman Kodak Company to cause the tier of beams on the sixteenth floor to be planked over was not the proximate cause of the accident. (Drummond v. Norton, 156 App. Div. 126.) The statute requires the planking over of the tier of beams “ on which the structural iron or steel work is being erected.” The sixteenth floor had been completed. No structural iron or steel work was being erected thereon at the time that the accident occurred, and, therefore, that tier of beams was not required by the statute to be planked over. (Drummond v. Norton, 156 App. Div. 126.) Section 20 of the Labor Law imposed no obligation or liability on the Eastman Kodak Company. (Koch v. Fox, 71 App. Div. 288; Rooney v. Brogan Construction Co., 194 N. Y. 32; Joyce v. C. A. Const. Co., 155 App. Div. 586; City of Rochester v. Campbell, 123 N. Y. 405; Lee v. S. S. Mfg. Co., 115 App. Div. 589; Fuchs v. Schmidt, 8 Daly, 317; Moore v. Gadsden, 93 N. Y. 12.)</p>

<p>United States reservations —• the common law and statutes of the state when not in force thereon—death of employee of contractor erecting building in Brooklyn navy yard caused by fall of defective scaffold — Labor Law not applicable, but cause of action exists under common law — when complaint not limited by bill of particulars.</p> <p>1. The common law and statutes passed before the cession of territory by the state to the United States remain in force in the ceded territory until displaced by Congress, but later statutes are of no effect. Hence the Labor Law (Cons. Laws, eh. 31) is not in force at the Brooklyn navy yard.</p> <p>2. Plaintiff’s intestate was killed by the fall of a scaffold while in the employ of a contractor who was putting up a building at the Brooklyn navy yard. There is evidence that the rope furnished was rotten, and that it was the only rope at hand. The inference is legitimate that the appliances were defective, and that with the exercise of reasonable care the defect would have been discovered, and a cause of action is thereby made out at common law, irrespective of the statute.</p> <p>3. The complaint herein being adequate in itself, it was not limited or nullified by the bill of particulars which amplifies the charge of negligence in respect of the place of work, but makes no attempt to deal with the subject of defective appliances.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence sufficient to give rise to any question of negligence on the part of defendant on any theory that the regulator was not a sufficient safety device.

William J. Pulis died on the 22d of May, 1881, leaving a will which was duly admitted to probate.

Appeal by plaintiff and certain of the defendants from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 20, 1914, which reversed an interolocutry judgment of Special Term directing a sale of the premises described in the complaint in an action of partition and directed a dismissal of the complaint. 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 March 6, 1914, which reversed an order of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of plaintiff, and reinstated said judgment. The nature of the action and 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 November 29, 1915, which reversed so much of a decree of the New York County Surrogate’s Court settling the accounts of the administratrix herein as decreed that a bequest and devise of one-fourth of the residuary estate' lapsed and that the next of kin and heirs at law of the testatrix take such interest as intestate property.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The attempted gift to Mrs. Helbig lapsed upon her death prior to the testatrix, and the words “per stirpes and not per capita ” appearing at the end of the 3d paragraph of the will, are not sufficient to prevent such lapse or to create a gift to her heirs. (Matter of Wells, 113 N. Y. 396; Matter of Hoffman, 201 N. Y. 247; Beekman v. Bonsor, 23 N. Y. 398; Kerr v. Dougherty, 79 N. Y. 327; Booth v. Baptist Church, 126 N. Y. 215; Morton v. Woodbury, 153 N. Y. 243; Hard v. Ashley, 117 N. Y. 606; Herzog v. Title G. & T. Co., 177 N. Y. 86; Roberts v. Bosworth, 107 App. Div. 511; Matter of Woolley, 78 App. Div. 224; Matter of Hawley, 76 Misc. Rep. 81; Langley v. Westchester Trust Co., 39 Misc. Rep. 735; Matter of Sinnot, 82 Misc. Rep. 219.)</p> <p>The words “per stirpes and not per capita ” should not be rejected as mere surplusage if any force or effect consistent with the remainder of the will can be assigned to these words. (Norris v. Beyer, 13 N. Y. 273.) A perfectly rational meaning entirely consistent with the remainder of the will can be assigned to the phrase “per stirpes and not per capita” as used by the testatrix. (Dick v. Lacy, 8 Beav. 214; Pearson v. Stephen, 5 Bligh [N. S.], 203.)</p> <p>The testatrix intended that the heirs of Mrs. Helbig should take by substitution the share devised and bequeathed to her. ( Whitmore v. Peck, 66 How. Pr. 254; Schult v. Moll, 132 N. Y. 122; Tyndell v. Fleming, 123 App. Div. 83; Terry v. Wiggins, 47 N. Y. 512; Page on Wills, § 552; Dick v. Lacy, 8 Beav. 214; Pearson v. Stephen, 5 Bligh [N. S.], 203.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The test of ‘ ‘ larceny at common law ” applied by the court below to determine whether or not title passed is inaccurate and misleading. (Matter of Middleton, L. R. [2 C. C. R.] 38.) The question whether title passed or not is to be determined by the principles of the law of contract.

The nature of the action and the facts, so far as material, are stated in the opinion. The power of attorney authorized Stallo to issue the note. (Watson v. Cleveland, 21 Conn. 538; Schofield v. Warren, 13 Misc. Rep. 209; Morris v. Hofferberth, 81 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 11, 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 plaintiff was guilty of contributory negligence as a matter of law. (Donnelly v. B. C. R. R. Co., 109 N. Y. 16; Paladino v. S. I. Ry. Co., 127 App. Div. 183; Johnson v. B. H. R. R. Co., 34 App. Div. 271; Dolfini v. Erie R. R. Co., 178 N. Y. 1; Bang v. N. Y. & Q. C. R. R. Co., 113 App. Div. 673; Wahler v. L. I. R. Co., 137 App. Div. 17; Keller v. Erie Railroad Co., 183 N. Y. 67; Fiddler v. N. Y. C. & H. R. R. R. Co., 64 App. Div. 95; McClain v. Brooklyn City R. R. Co., 116 N. Y. 459; Geleta v. B. & N. F. Ry. Co., 88 App. Div. 372; 181 N. Y. 524.) The defendant was guilty of no negligence. (Orafina v. N. Y. S. Rys. Co., 148 App. Div. 417; Kozlowski v. Rochester, S. & E. R. R. Co., 142 App. Div. 245; Albrecht v. R., S. & E. R. R. Co., 205 N. Y. 230; Hunt v. Fitchburg R. R. Co., 22 App. Div. 212; Phelps v. Erie R. R. Co., 134 App. Div. 729; Nardi v. R. L. & I. R. R. Co., 153 App. Div. 388; Thompson v. Met. R. Co., 89 App. Div. 10; Kerin v. U. Traction Co., 117 App. Div. 314; Stableman v. A. A. R. R. Co., 155 N. Y. 511; White v. Albany Ry. Co., 35 App. Div. 23; Suse v. Met. S. R. Co., 80 App. Div. 24.)</p> <p>The plaintiff was not guilty of contributory negligence in his use of the defendant’s south-bound track at the time of the accident. (Miller v. B. & L. E. Traction Co., 149 App. Div. 396; Donnelly v. B. C. R. R. Co., 109 N. Y. 16.) The defendant was guilty of negligence in operating its car at the speed indicated by the proof in this case. (Stewart v. L. I. R. R. Co., 54 App. Div. 623; Place v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 345.)</p>

Appeal, by permission, from an order of the Appellate ¡Division of the Supreme Court in the first judicial department, entered January 28, 1916, which affirmed an order of Special Term overruling a demurrer to the complaint and granting a motion by plaintiff for judg-ment in his favor upon the pleadings. The nature of the action, the facts, so far as material, and the. questions 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 June 23, 1916, which affirmed an order of Special Term denying a motion to set aside the service of a summons.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 24, 1916, which affirmed an order of Special Term granting a motion for the appointment of a referee to take the deposition of the president of the defendant, appellant.

The nature of the action and the facts, so far as material, are stated in the opinion. The consent of the local authorities to the construction and maintenance of a railroad and the structures to operate the same in the center of the streets, presumed under the Railroad Law to have been given to defendant railway company, became part of its indivisible franchise as if given directly by the legislature. (B. S. & F. F. R. Co. v. City of New York, 140 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 7, 1916, 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. The charge of the court wherein the burden of proving plaintiff’s freedom from contributory negligence was imposed on the defendant constituted reversible error. (Ives v. S. B. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. Upon the evidence the defendant’s negligence, and the deceased’s freedom from contributory negligence, were properly questions for the determination of the jury. (Wells v. N. Y. C. & H. R. R. R. Co., 25 App. Div. 365; Gill v. R., etc., R. R. Co., 37 Hun, 107; Donovan v. Greenfeld, etc., Co., 183 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract in suit was not made in the state of New York, hut in the state of Pennsylvania, hence the defense under sections 15 and 16 of the General Corporation Law is not available to the defendant. (Hyde v. Goodnow, 3 N. Y. 266; Meyer v. Knights of Pythias, 178 N. Y. 63; Zeltner v. Irwin, 25 App. Div. 228; M. V. Co. v. Connell, 10 Misc. Rep. 553; T. L. Co. v. Holbert, 5 App.

<p>Appeal — Appellate Division — presumption that its order of reversal is upon the law notwithstanding opinion — costs — action brought for benefit of another — when parties in interest liable for costs.</p> <p>1. Where the commencement of an action is induced by another for his own purposes it is “brought" by him so as to render him liable for costs under section 3247 of the Code of Civil Procedure.</p> <p>2. Where an order of the Appellate Division, reversing a final order of the Special Term, contains no statement specifying the grounds of reversal (section 1338 of the Code of Civil Procedure), the presumption that the reversal was on a question of law is conclusive, notwithstanding that the opinion of the Appellate Division which is made part of the judgment roll under section 1237 shows that it was reversed upon a question of fact.</p>

The facts, so far as material, are stated in the opinion. It was unjust for the commission to determine that because the scar upon the cornea might interfere with the claimant’s capacity to read or to do other fine work he should be awarded as if he had lost the use of his right eye. (Matter of Grammici v. Zinn, 219 N. Y. 322; Matter of Kanzar v. Acorn Mfg. Co., 219 N. Y. 322.) It was proper for the commission to award compensation for the loss of the use of an eye.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erroneously assumed that under the fourth item of the will the maintenance and operation of the charity devolved upon the trustees appointed thereunder and that this case is controlled by the rulings in Allen v. Stevens (161 N. Y. 122). (Matter of Crane, 12 App.

The facts, so far as material, are stated in the opinion. The words “ privileges and exemptions ” should not be construed to include only what was covered at the time of the adoption of the charter. (Harris v. White, 81 N. Y. 582; People ex rel. Fox v. Hayden, 133 N. Y. 198.) The statutes in question should be liberally construed. (Black on Interp. of Laws, 320, 321; People ex rel. Fox v. Hayden, 133 N. Y. 198; Roane v. Innes, Wythe [Va.], 62; Walton v. Cotton, 19 How.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered September 11, 1916, in favor of plaintiff upon the submission of a controversy pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The nature of the controversy and the facts/ so far as material, are stated in the opinion.</p>

Appeal in the first above-entitled action 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 defendants entered upon a dismissal of the complaint by the court at a Trial Term.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 29, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term bringing up for review an interlocutory judgment overruling a demurrer to the complaint. (See 159 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 26, 1917, which affirmed an order of the New York County Surrogate’s Court revoking letters of guardianship theretofore issued to Charlotte Gustow, as guardian of Dorothy 0. Kirschner, an infant.</p> <p>In October, 1916, Bruno W. Kirschner presented to the Surrogate’s Court of the county of New York a verified petition showing in substance that he is the father of Dorothy Charlotte Kirschner, an infant; that the mother of Dorothy died February 25th, 1915, when the infant was six months old; that letters of guardianship were granted with his consent to Charlotte Gustow, the aunt of the infant, March 12th, 1915, and since the death of the mother the infant has resided with the aunt, guardian; that petitioner has remarried and desires to have the custody of the child; that his present wife has manifested love toward the infant and desires to bring her up; that he is in a position to provide care and attention for the child, and he asked that he be appointed guardian of her person and property, and that letters of guardianship granted to the aunt be revoked. The stepmother joined in the petition, and in a separate affidavit expressed a desire to' have the infant brought up by the petitioner and herself.</p> <p>Upon presentation of the petition an order was entered by the surrogate that a citation issue in conformity with the prayer of the petition, which citation was issued and returnable October 24th, 1916.</p> <p>The guardian appellant filed a verified return to the petition in substance setting forth that she resided at Jamaica, Long Island, and was a sister of the deceased mother of the infant; that the child was two years old August 28th, 1916; that the mother of the infant was stricken by illness October 1st, 1914, when the infant was five weeks old, and she died February 25th, 1915, since which time the infant has been under her care and in her custody; that she consented to care for the infant and to be appointed her guardian as well as administratrix of her deceased sister at the solicitation of the petitioner; that the petitioner has failed in part to contribute to the support of the infant, and that it would be detrimental to the welfare of the infant to allow the petitioner custody of her person, which conclusion she based upon certain facts set forth in detail which were supported by additional affidavits, the specifie allegations of which may be omitted. After a hearing before the surrogate an order was entered revoking the letters of guardianship to appellant. The Appellate Division upon appeal affirmed the order. The guardian appeals to this court.</p> <p>The child’s welfare, and not the personal wishes or rights of the parent, is the sole and paramount consideration. (Matter of Meyer, 156 App. Div. 174; Matter of Jacquet, 40 Misc. Rep. 575.) The respondent has no affection for this child or any children, and actually opposed the birth of the infant in question. (Matter of Meyer, 156 App. Div. 174.)</p> <p>Petitioner established his right to the possession and custody of his child. (Griffin v. Sarsfield, 2 Dem. 4; Ex parte Barre, 5 Redf. 64; Matter of Meyer, 156 App. Div. 174; Matter of Jacquet, 40 Misc. Rep. 575; People v. Mercein, 3 Hill, 399.)</p>

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 21, 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 contract was an entire one. There is no suggestion that the plaintiff ever fully performed this contract, and until he did he was not entitled to any payment. (Smith v. Brady, 17 N. Y. 173; Catlin v. Tobias, 26 N. Y. 217; People ex rel. Cossey v. Grout, 179 N. Y. 417; M’Millan v. Vanderlip, 12 Johns. 165; Jennings v. Camp, 13 Johns. 94; Reab v. Moor, 19 Johns. 337; Lantry v. Parks, 8 Cow. 63; Marsh v. Rulesson, 1 Wend. 515; Champlin v. Rowley, 13 Wend. 259; Henderhen v. Cook, 66 Barb. 21; Delehanty v. Dunn, 151 App. Div. 695.) As the plaintiff was not entitled to recover upon either of the propositions submitted to the jury hy the court, the verdict must be set aside for error in the instructions upon this question. (Ring v. City of Cohoes, 77 N. Y. 83; Ayres v. Vil. of Hammondsport, 130 N. Y. 665; Buchanan v. Belsey, 65 App. Div. 58; Rosenstock v. Metzger, 136 App. Div. 620; Pettit v. Pettit, 149 App. Div. 485; Thompson v. Peterson, 152 App. Div. 667.)</p>

The resolution of the board of trustees .of the village of Weedsport, adopted October 5, 1898, did not grant to Edwards and his assigns a franchise to maintain an electric lighting plant in that village for commercial lighting that was unlimited as to time. The contract was ambiguous and the doubt is to be resolved against the grantee of the franchise and not against the municipality. (People v. Broadway Railroad Co., 126 N. Y. 29; Matter of Rhinehart v. Redfield, 93 App.

The nature of the action and the facts, so far as material, are stated in the opinion. This is an action in equity -brought by plaintiff to enforce a mechanic’s municipal lien, triable by the court without a jury, as to which the plaintiff had no right to a jury trial, except as to such special issues as the court might in its discretion frame and send to a jury, and the findings of the jury were merely advisory.

The facts, so far as material, are stated in the opinion. lío error was committed by the court below or by the district attorney in asking Mr. Martin, the defendant’s counsel, whether he had produced the papers in question; or in the examiantion of Mr. Conway or Mr. Martin as to the return of those papers to Mr. Martin as attorney for Silverman.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 29, 1915, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The defendant was the agent of the Sovereign Bank of Canada as a matter of law on the undisputed facts and, therefore, owed no duty to the plaintiff in the premises. (Morse on Banks & Banking [4th ed.], § 272; Daniel on Neg. Inst. [5th ed.] § 344; Magee on Banks & Banking [2d ed.], § 285; Banks & Banking, 7 Corpus Juris, 606, 607, 624; McBride v. Illinois Nat. Bank, 138 App. Div. 339; Izzo v. Luddington, 79 App. Div. 272; 178 N. Y. 621; Held v. Caldwell-Easton Co., 97 App. Div. 301; Inman v. Burt Co., 124 App. Div. 73; Anderson v. N. Y. & Harlem R. R. Co., 132 App. Div. 183; Hugel v. Habel, 132 App. Div. 327.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant never agreed to pay the plaintiffs’ grade crossing award. A corporation can only act through its officers or duly accredited agents. It cannot he bound by a person assuming authority. One seeking to hold a corporation liable on a contract has the burden of proving that the person making the contract for the corporation had the authority to do so.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 24, 1914, which reversed a determination of the Appellate Term modifying and affirming as modified a judgment of the City Court of the city of New York in favor of plaintiffs and directed judgment in favor of defendant upon the merits. The nature of the action and the facts, so far as material, are stated in the opinion.

a judgment of the Appellate Division of the Supreme Court for the third judicial department, entered May 18, 1916, affirming a determination of the Board of Claims in favor of the plaintiffs. The nature of the claims and the facts, so far as material, are stated in the opinion. The statutes enacted for the protection and preservation of beaver were within, the proper exercise of police power.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not liable for the negligence of the driver of the automobile. (Kellogg v. C. C. Foundation, 203 N. Y. 191; Ferris v. Sterling, 214 N. Y. 249; Reilly v. Connable, 214 N. Y. 586; Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Van Blaricom v. Dodgson, 220 N. Y. 111; Farthing v. Strouse, 172 App. Div. 523; Heissenbuttel v. Meagher, 162 App.

The facts, so far as material, are stated in the opinion. Where a legatee or devisee is given full power to dispose by deed, contract or by will of the property given to him, the bequest or devise is absolute, and a subsequent limitation to take effect upon any contingency would be void on the ground of repugnancy. (Kelly v. Hogan, 71 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1916, which reversed an order of Special Term granting a motion by plaintiffs for judgment on the pleadings and denied said motion.

nominally in favor of plaintiff but actually in favor of defendant, being only for an amount conceded by defendant to be due, entered upon a decision of the court at a Trial Term and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The appellants adopted the proper remedy to have determined the constitutionality or reasonableness of the ordinance in question, and whether such ordinance be considered as a legislative enactment, or as having been passed pursuant to specific express power conferred or passed pursuant to general powers, express or implied, the appellants are entitled to have its constitutionality or reasonableness determined by the…

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff and the defendants should he treated as pledgor and pledgee and it cannot be said that as a matter of law the plaintiff had agreed that the defendants might sell out his contract without notice to him.

<p>Bills, notes and checks — principal and agent — restrictive indorsement — authority to make a restrictive indorsement of checks to be deposited for a corporation does not authorize general indorsements —unauthorized indorsement a forgery and banks cashing checks so indorsed liable to owner of check.</p> <p>1. One authorized to make a restrictive indorsement is not authorized to make a general indorsement. Any person taking checks made payable to a corporation, which can act only by agents, does so at his peril and must abide by the consequences if the agent who indorses the same is without authority, unless the corporation is negligent or is otherwise precluded by its conduct from setting up such lack of authority in the agents.</p> <p>2. A depositor who authorizes his clerk to take his checks to his bank for deposit does not vest in the clerk so dangerous a power as to preclude the depositor from setting up the lack of authority of the clerk if he indorses the depositor’s name thereon in blank, and innocent persons cash the checks for him without inquiry.</p> <p>3. Plaintiff had provided its stenographer with a rubber stamp with which to indorse checks for depositas follows: “Pay to the order of the Greenwich Bank. The Standard Specialty Oo.” Her authority to indorse was limited strictly to the use of this stamp, to be followed by the words in her handwriting: “Percy H. Pinder, Treasurer,” but she indorsed certain checks wholly in her own handwriting with the words “ Standard Steam Specialty Company, Percy H. Finder, Treasurer,” and also indorsed her own name thereon. The checks were then cashed for her, and she converted the money she thus obtained to her own use. Such indorsement was without authority, and, therefore, a forgery, and since no title passed thereby the bank is liable to the depositor.</p>

<p>Appeal from a judgment, entered May 11, 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 Erie County Court at a Trial Term without a jury 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>This judgment of the Municipal Court of Buffalo upon the filing of a transcript with the clerk of Erie county became a judgment of the County Court, and the action thereon in which the Erie County Court rendered judgment in favor of plaintiff was not barred by the six-year Statute of Limitation. (L. 1891, ch. 105, § 458; Diffenbach v. Roch, 112 N. Y. 621; McMahon v. Arnold, 107 App. Div. 132; Hoffenberth v. Nash, 117 App. Div. 284.) The provisions of the Code of Civil Procedure are applicable to this judgment of the Municipal Court of Buffalo. (L. 1891, ch. 105, § 456; Code Civ. Pro. §§ 382 [subd. 7], 3017; Matter of Murphy, 150 App. Div. 460.)</p> <p>The judgment sued upon was a judgment rendered by a court not of record and the right of action thereon was limited to six years from the date of the rendition thereof. (Code Civ. Pro. § 382, subd. 7; Code Civ. Pro. § 376; Dieffenbach v. Roch, 112 N. Y. 621.)</p>

The facts, so far as material, are stated in the opinion. A writ of prohibition will lie not only for the purpose of restraining the act of a court where it has no jurisdiction, but also where it acts or threatens to act in excess of its jurisdiction. (Appo v. People, 20 N. Y. 531; Thompson v. Tracy, 60 N. Y. 31; People ex rel. Mayor v. Nichols, 79 N. Y. 582; People ex rel. Sandman v. Tuthill, 79 App. Div. 24; People ex rel.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 13, 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 plaintiff failed to make a case for the jury and the trial court’s refusal to grant nonsuit was error. (Whidden v. Cheever, 69 N. H. 142.) The trial court erred in submitting the case to the jury solely under the provisions of the Public Health Law, since under the Second Class Cities Law, and the provisions of the ordinance adopted by the city pursuant to authority thereby conferred, the health officer had discretion in establishing a quarantine to prevent the spread of smallpox. (Matter of Smith, 146 N. Y. 68; Smith v. Emery, 11 App. Div. 10; City of Buffalo v. N. Y., L. E. & W. R. R. Co., 152 N. Y. 276; People v. N. Y. Edison Co., 159 App. Div. 786; Met. Bd. of Health v. Heister, 37 N. Y. 661; Polnsky v. People, 73 N. Y. 69; Bellows v. Raynor, 207 N. Y. 389; F. A. Coach Co. v. City of New York, 194 N. Y. 29; City of Rochester v. M. F. Milling Co., 199 N. Y. 207; People ex rel. Dunn v. Ham, 166 N. Y. 477.)</p> <p>There was no exception taken in the case that presents a question of law as to whether there was any error in submitting or not submitting to the jury the question whether the defendants were justified in imprisoning plaintiff because they had probable cause to believe she had smallpox, or was so exposed to it that she would probably communicate it to others if she was not imprisoned fifteen days. (Crapo v. City of Syracuse, 183 N. Y. 395; Quinlan v. Welch, 141 N. Y. 165; Clark v. N. Y. C. & H. R. R. Co., 191 N. Y. 416; Ross v. Caywood, 162 N. Y. 259; Wanger v. Gremmer, 169 N. Y. 421; Hawley v. Olcutt, 134 App. Div. 629; 198 N. Y. 132; Gralish v. B. & O. R. R. Co., 130 App. Div. 238; 197 N. Y. 540.) The verdict was supported by the evidence. (Matter of McMillan, 218 N. Y. 64.) Aosuch delegation of legislative power was permissible. (Basto v. Lovett, 8 N. Y. 483; People v. Kennedy, 207 N. Y. 558; Johnstown Cemetery Assn. v. Parker, 28 Misc. Rep. 280.) Unless plaintiff was infected with or exposed to disease the defendant had no right to imprison or control her. (Matter of Smith, 146 N. Y. 68; Smith v. Emery, 11 App. Div. 10.) That part of the Syracuse sanitary code or health ordinance is invalid which provides : ‘ ‘ The health officer shall order isolation or absolute quarantine in such cases, or wherever (if it means whenever) he deems necessary, and take such other quarantine measures as he deems necessary in cases not above provided for.” (Matter of Smith, 146 N. Y. 68; Smith v. Emery, 11 App. Div. 10; Yick Wo v. Hopkins, 118 U. S. 356.)</p>

Court in the first judicial department, entered May 21, 1915, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial. 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 April 17, 1914, which reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff and dismissed the complaint in an action under section 367 of the General Business Law to recover a penalty. The facts, so far as material, are stated in the opinion.

Lee, an infant, to the petitioners and dismissed the said writ. The facts, so far as material, are stated in the opinion. The adjudication made by the Supreme Court September 15, 1915, directing the custody of the infant to be with the appellants is not affected by the issuance of letters of guardianship on June 20, 1916, to the respondent. (Matter of Quinn, 2 App. Div. 103; Matter of Price, 12 Hun, 508; Lawrence v. Brady, 56 N.Y. 182; Keator v. Moss, 6 App.

<p>Workmen’s Compensation Law — salesman struck and killed by railroad train while riding motor cycle- furnished by his employer for salesman’s use — dependents of deceased entitled to award although employer was not engaged in hazardous business.</p> <p>1. If an employer is carrying on a non-hazardous trade, business or occupation for pecuniary gain and as an incident thereto has employees whose occupation is hazardous, the latter are protected by the Workmen’s Compensation Law.</p> <p>2. The widow and minor child of a salesman engaged in a nonhazardous business, who was struck and killed by a railroad train while riding, on his employer’s business, a motor cycle furnished by his employer to use in taking orders and collecting accounts, are entitled to compensation under the provisions of group 41 of section 2 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) which provides compensation for the dependents of those killed in the hazardous occupation of operating “ cars, trucks or wagons or other vehicles propelled by * * * gasoline.” (Matter of Glatzl v. Stumpp, 220 N. Y. 71, followed; Matter of Bargey, 218 N. Y. 410, cited.)</p>

<p>Workmen’s Compensation Law — compensation for injury under such law is for inability to work, not indemnity for physical injury, as such — erroneous award of consecutive compensation first for temporary disability and thereafter for permanent injury.</p> <p>1. The theory of the Workmen’s Compensation Law of this state is not indemnity for loss of a member or physical impairment, as such, but compensation for disability to work made on the basis of average weekly wages.</p> <p>2. The “ ‘compensation’ allowed by the law means the money allowance payable to an employee ” (§ 3, Y 6). But one rate of compensation, sixty-six and two-thirds per centum of the average weekly wage, and one period of compensation are provided for many given case. The award is to compensate for loss of earning power.</p> <p>3. Where claimant’s second finger was cut off and the thumb and index finger were severely lacerated, the injuries to the thumb and finger might constitute temporary total disability for which he would be entitled to compensation at the rate of sixty-six and two-thirds per cent of his average weekly wages to be paid during the continuance thereof, not to exceed a certain amount; the loss of the second finger constituted permanent partial disability, for which, under paragraph 3 of section 15, he would be entitled to compensation at the same rate for thirty we.eks; but it was error for the industrial commission to award consecutive compensation for such injuries first, during temporary disablity and thereafter for the full period for the permanent injury, and the award for the temporary total disability should be reversed and that claim be dismissed.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 25, 1914, which reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of defendant and granted a new trial. 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 December 1, 1916, affirming an award of the State Industrial Commission under the Workmen’s Compensation Law. The facts, so far as material, are stated in the opinion. The injuries received by claimant did not arise out of her employment, and were not ordinary and incident to her employment..

The plaintiff testified that he was ten years old, and on the evening of August 16, 1914, in company with two other boys, was at the vicinity of the city line and East Delavan avenue in the city of Buffalo; that they were playing horse, and he had a rope about seven and one-half feet in length tied under his arms and was being driven by another boy; that there was a pay-as-you-enter street car standing at the city line ready to leave on its return trip; that as he ran past…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14, 1916, which reversed an order of the state industrial commission requiring the defendant to deposit in the state fund moneys sufficient to meet future payments of award.

Apeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 19, 1915, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence-of defendant.

The intestate, while working as a carpenter on d building in course of erection by defendant, fell from a beam and received injuries resulting in his death. The theory of defendant’s negligence on which the case was submitted to the jury was that the defendant had failed to entirely fill in the floor beneath that on which intestate was working, leaving a hole through which the intestate fell, thereby increasing the distance of the fall by nine feet.

<p>Elections — examination of ballots.</p> <p>Section 374 of the Election Law is broad enough in its terms to entitle any candidate voted for at the time of a general election to an examination as of right in a proper case of any ballots upon which his name lawfully appears as that of a candidate whether the validity of the election is in controversy or not.</p>

<p>Trial — when exception to denial of motion to dismiss for insufficiency of evidence, taken at close of plaintiff’s case, is waived by failure to renew motion at close of all of the evidence.</p> <p>Where at the close of plaintiff’s case a motion is made for a non-suit and to dismiss upon the ground of insufficiency of evidence, which being denied, defendant introduces evidence for the purpose of disproving plaintiff’s claims and fails at the close of all the evidence to renew the motion to dismiss, and the court submits to the jury all of the questions of fact involved to which the defendant not only takes no exception but specifically requests special instructions to the jury on the question involved, any exception taken by defendant to the denial of his motion at the close of plaintiff’s case is waived and he cannot argue the proposition of lack of evidence.</p>

Appeal, by permission, from mi order of the Appellate Division of the Supreme Court in the third judicial department entered December 20,1916, which reversed an order of Special Term denying a motion by the respondent herein for leave to intervene and to be brought in as a party defendant in this action and granted said motion.

The following questions were certified: “ (1) Was the referee appointed by the judgment of foreclosure herein without power or authority to resell the mortgaged premises and property at his office on April 25, 1916, under the terms of sale set forth in the record, without again publishing and posting notice of sale, upon the default of James P. Philip in consummating his purchase of the premises and property on his bid, and upon the facts shown in the record ?

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 13, 1916, which affirmed an order of Special Term denying a motion to vacate the service of the summons herein.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 13, 1916, which affirmed an order of Special Term denying a motion to vacate the service of the summons herein.

The answer specifically denied performance of any extra work or that an agreement was made to pay for any extra work, denied all the other material allegations of the complaint except the filing and bonding of the lien, and sets up a counterclaim for the cost of completion of the work under the contract between the plaintiff and the defendant Kuhn in the sum of $940.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1916, which affirmed an order of Special Term granting defendant’s motion for judgment on the pleadings. The action is one to recover a sum of money deposited by the plaintiff’s assignors as tenants with the defendant as landlord as security for the faithful performance by the tenants of the covenants and conditions of a written lease.

The testator, who died July 2, 1887, by his will provided a trust fund for the benefit of his two daughters, Zella Trelawney Lentilhon and Wilhelmina Emilie d’Arschot referred to in the will. Zella Trelawney Lentilhon died on November 21, 1891, and the trust fund which was held for her benefit was thereafter distributed among the persons entitled thereto. Wilhelmina Emilie d’Arschot died on February 21, 1912, without issue. Her husband had predeceased her in January, 1893.

Linson, deceased, and settling the account of his executor. ' Testator by the 2d clause of his will excluded his son Ernest from all participation in his estate.

The questions on appeal were: Whether, under our workmen’s compensation system, where the contract of hiring is made in New York for work to be done wholly in another state, the law of the place of performance does not fix the rights and liabilities of employee and employer in case of an industrial accident to the employee while at work in such other state.

The defense interposed was that the Workmen’s Compensation Law of the state of New York does not apply to this case, for the reason that the injury was sustained while the employee was working in the state of Pennsylvania, the contract of employment ■ having been entered into in the state of New York, although no employment or work in the state of New York or elsewhere than in the state of Pennsylvania was at any time contemplated by the parties to the contract.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 1, 1916, affirming an award of the state industrial commission. Claimant was a janitor in an apartment house owned and operated by the defendant, and in connection with such apartment operated stationary boilers. At the time of the accident he was chopping wood to be used in the hot water boilers, and a splinter of wood flew into his right eye, causing a traumatic cataract, causing the permanent loss of the use of his right eye. Appellants contended that the claimant was not an employee engaged in a hazardous employment at the time he sustained injury.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 10,1916, which reversed an order of Special Term denying a motion for an order requiring plaintiff to make her complaint more definite and certain, or to separately state and number the two causes of action which defendant alleges are set forth in the third cause of action set forth in the complaint, and in the event that said motion be not…

Appeal by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 8, 1916, which reversed an order of Special Term denying a motion to set aside service of the summons in the above-entitled action for dower and granted said motion. The following questions were certified: “1.

Upon the trial the defendant sought to evade responsibility for the payment of this balance of $35,000 upon the ground that Reilly had misled him by various misrepresentations, principally as to the water power that was to be used to run the railroad, and the major portion of the record is made up of testimony tending to prove the falsity of these alleged representations.

17, 1916, which reversed a judgment of the Court of General Sessions of the county of New York, rendered upon a verdict convicting the defendant of an attempt to commit the crime of grand larceny in the first degree and granted a new trial.

<p>Appeal from a judgment of the Appellate Division of' the Supreme Court in the second judicial department, entered June 3, 2914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages for injuries to the plaintiff’s eyesight claimed to have been caused by the inhalation of fumes of methyl alcohol, while in the employment of the defendant Theodor Lutz, a contractor who was engaged in varnishing certain beer vats in defendant’s brewery.</p>

The comptroller has refused to certify and register the contracts on the ground that the appropriation applicable to the execution of the contracts is limited to the existing appropriation for the purpose at the time of the opening of the bids.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 27, 1916, which affirmed an order of Special Term granting a motion by respondent to compel appellant to pay to him a sum of' money pursuant to a stipulation discontinuing an action.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judical department, entered March 30, 1917, which reversed an order of Special Term granting a motion for an injunction pendente lite and denied said motion. The injunction restrained the prosecution of certain actions brought to recover on promissory notes of the plaintiff and restrained defendant Bassick from suing in the Federal courts on a claim against the plaintiff.

Appeal, by permission, from a judgment of the Appelate Division of the Supreme Court in the first judicial department, entered April 1Y, 1914, which ■ reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff and dismissed the complaint in an action under section 36Y of the General Business Law to recover for infringement of a trade mark.

Appeal, by permission, from an order of the Appelate Division of the Supreme Court in the first judicial department, entered March 26, 1915, which affirmed an order of the court at Trial Term denying a motion to set aside an order dismissing the complaint and for a new trial in an action to recover damages for personal injuries sustained by the plaintiff as a result of being thrown from a subway train to the tracks below.