Volume 221 — New York Reports

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 first judicial department, entered January 19, 1917, which affirmed an, order of Special Term granting a motion by plaintiff for judgment on the pleadings. The following question was certified: “Is the plaintiff, respondent herein, entitled to judgment upon the pleadings ? ” 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 January 5, 1917, which affirmed an order of the Kings County Surrogate’s Court assessing a transfer tax upon the estate of St. Clair McKelway, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>A taxable transfer was made on the death of the decedent, as to the property described in the 7th and 8th paragraphs of the appraiser’s report. (L. 1915, ch. 664; Matter of Schroeder, N. Y. L. J., March 20, 1912; Matter of Wunsch, N. Y. L. J., Jan. 24, 1913; Matter of Von Bermuth, N. Y. L. J., March 1, 1913; Matter of Stebbins, 52 Misc. Rep. 538; Matter of Spring, 75 Misc. Rep. 586; Matter of Pitou, 79 Misc. Rep. 384; Kelly v. Burns, 194 N. Y. 49; Matter of Thompson, 167 N. Y. 356; 215 N. Y. 702; Matter of Tilley, 166 App. Div. 240; Matter of Pell, 171 N. Y. 48.)</p> <p>No tax can be legally imposed against Mrs. McKelway under chapter 664 of the Laws of 1915. (Matter of Euston, 113 N. Y. 174; Matter of Vassar, 127 N. Y. 1; Matter of Vanderbilt, 172 N. Y. 69; People ex rel. Hatch v. Riordan, 184 N. Y. 431; 204 U. S. 152; Matter of Keeney, 194 N. Y. 281; 222 U. S. 525; Bergmann v. Lord, 194 N. Y. 70; Matter of Pell, 171 N. Y. 48; Matter of Lansing, 182 N. Y. 238; Matter of Slosson, 216 N. Y. 79; Matter of King, 217 N. Y. 358.) The death of one joint tenant does not change the interest of the surviving joint tenant, but merely extinguishes the interest of the former in the property. The power to revoke the trust agreement reserved by the parties did not authorize either of them .to vary their respective interests in the property, but merely to discharge the trust company as custodian. (1 Washb. on Real Prop. 470, § 14; Matter of Lansing, 182 N. Y. 238; Matter of Hoffman, 161 App. Div. 836; 212 N. Y. 604.)</p>

<p>Workmen’s Compensation Law — death, of night watchman employed by corporation engaged in hazardous occupation — when widow of deceased watchman entitled to compensation although there is no evidence showing how death of watchman was caused.</p> <p>1. A night watchman employed by a corporation engaged in a business designated as “hazardous” under the Workmen’s Compensation Law (Cons. Laws, ch. 67, § 2, group 34) to patrol its buildings at night, is within the law, and where the body of such watchman, who had begun his duties for the night, was found, about midnight, at the bottom of the well under the staircase in one of the buildings, his widow is entitled to compensation and the award of the state industrial commission should be sustained.</p> <p>2. Under the provisions of the Compensation Law (§§ 21, 68), relating to rules of evidence and presumptions, and the liberal construction which has been placed thereon by this court for the purposes of carrying into effect the intention of the legislature, there was evidence in the record presented to the commission sufficient to justify the findings made by the commission.</p>

The facts, so far as material, are stated in the opinion. Claimant was not an employee engaged in an employment specified as hazardous at the time of injury. (Matter of Sheridan v. Groll Const.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 17, 1917, affirming an award of the state industrial commission made under the Workmen’s Compensation Law.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The claimant was not an employee or a workman within the meaning of the Workmen’s Compensation Law. (Bristor v. Smith, 158 N. Y. 157; Palmer v. Van Santvoord, 158 N. Y. 612; Matter of Petrie, 215 N. Y. 335; Post v. Burger & Gohlke, 216 N. Y. 544,- Rheinwald v. Builders’ B. & S. Co., 168 App. Div. 425; Simpson v. Ebba Vale Steel, Iron & Coal Co., L. R. [1905] 1 K. B. 453; Bagnall v. Levinstein, L. R. [1907] 1 K. B. 531; Sibley v. State, 96 Atl. Rep. 161.)</p> <p>Claimant, respondent, was an employee within the meaning of the Workmen’s Compensation Law. (Cons. Laws, ch. 67, § 3, subd. 3; Matter of Rheinwald v. Builders’ B. & S. Co., 168 App. Div. 425; Matter of Larsen v. Paine Drug Co., 218 N. Y. 252; Matter of Collins v. B. U. Gas Co., 171 App. Div. 381; Sullivan v. Industrial Engineering Co., 173 App. Div. 65; Gurney v. A. & G. W. R. R. Co., 58 N. Y. 358; Aken v. B. & C. Co., 118 App. Div. 463; 192 N. Y. 554; Ericsson v. Brown, 38 Barb. 390; Coffin v. Reynolds, 37 N. Y. 640; Wakefield v. Fargo, 90 N. Y. 213; Matter of Stryker, 158 N. Y. 526.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Time and manner of discharge of the plaintiff was a question for the jury which, on all the testimony, has properly been resolved in plaintiff’s favor. (1 Labatt on Master & Servant, 581; Arnold v. Adams, 27 App. Div. 345; Sigmon v. Goldstone, 116 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was guilty of contributory negligence as matter of law. (Lofstin v. B. H. R. R. Co., 184 N. Y: 148; Reed v. M. S. R. R. Co., 180 N. Y. 315; McGreevy v. N. Y. C. R. R. Co., 113 App.

<p>Appeal from a judgment, entered June 15, 1914, upon an order of the Appellate Division of the Supreme Court in the third judicial department reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 1, 1914, affirming a judgment in favor of defendants entered upon an order of the court at Special Term granting a motion by defendants for judgment on the pleadings.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion. -</p> <p>The complaint sets forth a perfectly sound cause of action within the elastic jurisdiction of a court of equity. Plaintiff’s trade name and business reputation should be protected and the defendants should be restrained from then* unfair and deceitful conduct. Defendants are. selling broadcast reproductions of photographs taken by-plaintiff and are leaving thereon plaintiff’s trade name, “ White, ” thus deceiving the public, or in some instances removing plaintiff’s trade name “ White ” therefrom and substituting their own trade name, ‘ ‘ Apeda. ” This course of conduct may be prevented by the plastic remedies of chancery. (Croft v. Day, 7 Beav. 84; Meneely v. Meneely, 62 N. Y. 427; Order of Elks v. Order of Elks of the World, 205 N. Y. 459; Society of the War of 1812 v. Society of the War of 1812 in the State of New York, 46 App. Div. 568; 62 N. Y. Supp. 355; Salvation Army in United States v. American Salvation Army, 135 App. Div. 268; 141 App. Div. 931; Clark on Corporations [3d ed.], 79, 80; Borthwick v. Evening Post, L. R. [37 Ch. Div.] 449; Gulden v. Chance, 182 Fed. Eep. 303; Dennison Mfg. Co. v. Thomas Mfg. Co., 94 Fed. Rep. 651; Maintowac Malting Co. v. Milwaukee Malting Co., 119 Wis. 543; Burrow v. Marceau, 124 App. Div. 665.) Beyond the purview of copyright there is a source of equitable remedy resting on general and fundamental principles of equity, and there is a right in cases of this sort to obtain equitable relief from the transgressor on the ground of unfair trade and improper competition without any reference at all to the law of copyright. (Merriam Co. v. Straus, 136 Fed. Rep. 477; brims on Unfair Business Competition [1909], 195; Chancellor of Oxford Univ. v. Wilmore-Andrews Pub. Co., 101 Fed. Rep. 443; Ogilvie v. Merriam Co., 149 Fed. Rep. 858; Weinstock v. Marks, 109 Cal. 529; Burdick on Torts [1st ed.], 391, 392.)</p> <p>The complaint does not state any cause of action at law or in equity. (Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Corliss v. Walker Co., 64 Fed. Rep. 280; Elgin Nat. Watch Co. v. Illinois Watch Case Co., 179 U. S. 665; Columbia Mill Co. v. Alcorn, 150 U. S..460; Manufacturing Co. v. Trainer, 101 U. S. 51; Clemens v. Belford, Clark & Co., 14 Fed. Rep. 728; Atlas Mfg. Co. v. Street & Smith, 204 Fed. Rep. 398; Munn & Co. v. Americana Co., 91 Atl. Rep. 87; Heine v. Appleton, 4 Blatchf. 125; Donaldson v. Wright, 7 App. Cas. [Dist. Col.] 45; Dielman v. White, 102 Fed. Rep. 892.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff has established title in- herself. (Rheinfeldt v. Dahlman, 19 Misc. Rep. 162; Miller v. Benoit, 29 App. Div. 252; 164 N. Y. 590; Hull v. Littauer, 162 N. Y. 569; Kavanagh v. Wilson, 70 N. Y. 179; Matter of Schroeder, 113 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1914, which affirmed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of plaintiff and directing a dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion..

The nature of the action and the facts, so far as material, are stated in the opinion.. The complaint sets up no cause of action. This question was properly raised in the trial court. (Wormser v. Gen. Ac. Assur. Corp., 94 App. Div. 213; Gerding v. Haskin, 141 N. Y. 514; Pagnillo v. Mack P. & C. Co., 142 App.

<p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 6, 1917, which reversed an order of Special Term granting a motion for an injunction pendente lite and denied said motion. The following question's were certified: “ 1.

<p>Attorney at law — proceedings for disbarment of an attorney — such proceeding not a criminal prosecution for the imposition of a penalty or forfeiture — attorney not immune from disbarment because proceeding therefor is based upon testimony on a trial in substance confessing the acts for which he is liable to disbarment — constitutional provision that no person shall be compelled to testify against himself not applicable in such proceeding.</p> <p>1. Membership in the bar is a privilege burdened with conditions. A fair private and professional character is one of them. Compliance with that condition is essential at the moment of admission; but it is equally essential afterwards, and whenever the condition is broken, the privilege is lost.</p> <p>2. The State Constitution (Art. 1, § 6) says that no person shall be compelled in any criminal ease to be a witness against himself.” But to bring him within the protection of the Constitution, the disclosure asked of him must expose him to punishment for crime. A proceeding looking to disbarment is not a criminal case.</p> <p>3. Disbarment is not" a penalty or forfeiture within the meaning of the statute (Penal Law, § 584) providing that no person shall be excused from testifying on any trial for a violation of article 54 of that law (which defines and punishes conspiracy), upon thte ground that the testimony required of him may tend to subject him to a penalty or forfeiture, and providing further that no person shall be subjected to any penalty or forfeiture on account of anything concerning which he may so testify, and that no testimony so given shall be received against him upon any criminal investigation, proceeding or trial. Hence, an attorney is not immune from discipline by reason of having given testimony on a trial, which was in substance a confession of the acts for which-he is liable to disbarment. (Matter of Kaffenburgh, 188 IT. Y. 49, distinguished.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was entitled to judgment against Carnegie Trust Company for the full amount of the trust fund, to wit, $140,000. (Madison Square Bank v. Pierce, 137 N. Y. 444; Culliford v. Walzer, 13 Misc. Rep. 493; Matter of Heyman, 95 Fed. Rep. 800; Hanover National Bank v. American Dock, etc., Co., 14 App. Div. 255; 43 N. Y. Supp. 544; 8 Corpus Juris. 822, 823; 1 Abbott’s Cyclo.

The nature of the action and the facts, so far as material, are stated in the opinion. This action is not barred by order of the Supreme Court made in the proceeding instituted by the trustee; nor are these appellants estopped to prosecute this action by that order or by the deed made by the trustee; nor are the questions raised in this suit res adjudicata.

The facts, so far as material, are stated in the opinion, It was error to sustain a lien against the owner when the only alleged consent was the $15,000 conditional contract in the lease, and no money ever became due to Leininger, the principal contractor. (Van Clief v. Van Vechten, 130 N. Y. 577; Butler v. Aquehonga Land Co., 86 App. Div. 439; Larkin v. McMullin, 120 N. Y. 206; Johnson-Service Co. v. Hildebrand, 149 App.

The facts, so far as material, are stated in the opinion. The service of partridges with a meal paid for in weekly board bill is a sale of the partridges within the prohobition of sections 176 and 180 of the Conservation Law.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement effected by these letters constituted a novation between the parties and displaced the policy, so far as it related to the matter in question, to wit, the adjustment and payment of the loss. There was a valid compromise of a dispute and difference between the parties. (21 Am. & Eng. Ency. of Law [2d ed.], 660; Bandman v. Finn, 185 N. Y. 508; Morehouse v. S. Nat.

<p>Sale — delivery of goods—refusal of purchaser to accept goods until delivered at factory of purchaser and inspection thereat — vendor cannot maintain action for purchaser’s breach of contract of sale when tender is accompanied by a condition.</p> <p>Defendant having agreed to buy from plaintiff, an importer, a quantity of rubber, was notified of the arrival of shipments and asked to inspect the rubber at the warehouse or on the dock, which defendant refused to do and stated that there would be no acceptanee until the rubber reached its factory. Plaintiff insisted on its inspection at the storehouse and that the rubber leaving the storehouse would be an acknowledgment of its acceptance. Defendant insisted that withdrawal of the goods from the warehouse must be without prejudice to their rejection afterwards. Neither side would yield. The plaintiff sold part of the rubber at a reduced price; the rest it retained and brought this action to recover the profit which-was lost. Plaintiff's complaint, as amended on the trial, alleges that the defendant “ wrongfully repudiated the said contract, and definitely notified the plaintiff that it would not thereafter perform the same.” Held, that a tender, burdened with the condition, as this tender was, that inspection must first be made, and satisfaction stated, was not a tender which answered the requirements of the contract; that the plaintiff failed to establish that it rescinded the contract on the ground of defendant’s anticipatory breach; that plaintiff having failed to give notice of an election to treat it as abandoned, the contract survived (Personal Property Law, § 146; L. 1911, ch. 571; Cons. Laws, ch. 41), and the award of damages in its favor cannot be sustained.</p>

<p>Mew York (city of) — street opening proceedings — provisions of charter (L. 1901, eh. 466, § 992, amd. hy L. 1910, eh. 548) that abutting owners who cede lands from front of lot to center o " street without compensation shall not be chargeable with any expense of opening the street except their proportion of damages for buildings taken or injured by the changes made in opening the street.</p> <p>1. The validity of the sections of the charter of the city of New York allowing assessments for damages awarded by reason of a future contemplated change of grade cannot be questioned on constitutional grounds.</p> <p>2. As to the persons affected by a street opening proceeding in that city who have not appealed, the report of the commissioners of assessment is final and conclusive. (Charter, § 998.)</p> <p>3. Section 992 of the Greater New York charter, as amended by chapter 548 of the Laws of 1910, provides that the owners of land improved within the proposed street and extending to the center line thereof may without compensation and before the appointment of commissioners convey their right, title and interest therein to the city of New York, and that after such cession “the lands fronting on that portion of the streets so conveyed, and extending to the center of the block on either side of such portion of said street so conveyed, shall not be chargeable with any portion of the expense of opening the residue or any portion of the residue of such street, except the due and fair proportion of the awards that may be made for buildings as aforesaid.” Under this provision as construed in connection with section 980 of the charter, an assessment can be made against a person ceding land for a proposed street with respect to buildings injured by the opening or regulation of the street although not actually taken.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The failure of the plaintiff to perform for twelve years any of the things which he bound himself by his contract to do and his refusal upon request to do things which he was asked to do constituted a breach of the contract.

The nature of the action and the facts, so far as material, are stated in the opinion. The court below, while holding that the verdict rendered by the jury was excessive, and to that extent erroneous, without ordering a new trial, fixed a definite and arbitrary amount to which, in its opinion, the verdict should be reduced, and, on the plaintiff’s stipulation to accept such reduction, directed judgment in his favor therefor, which it had no power to do.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff has a property right in- the right of way of which he cannot be deprived in any other way than those clearly recognized by the law without an invasion of his constitutional rights.

The nature of the action and the facts, so far as material, are stated in the opinion. The fact that plaintiff received the fruits of the transaction and used the $5,000 for its own benefit supported the inference that the persons then purporting to represent the plaintiff were authorized to bind it by the arrangement made.

The nature of the action and the facts, so far as material, are stated in the opinion. Nothing but the “request” of the insured communicated to the insurer is required to cancel immediately any fire insurance policy. (Boutwell v. G. & R. F. Ins. Co., 193 N. Y. 323; C. P. Iron Co. v. A. Ins. Co., 127 N. Y. 608.) The mere “request” cancels the insurance without and irrespective of any other act by the insured or the insurer. (Newark Fire Ins. Co. v. Simmons, 11 Ill.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4, 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 deceased was engaged in interstate commerce at the time of the accident. (Pederson v. D.,L. & W. R. R. Co., 229 U. S. 146; Eng v. Southern Pacific R. R. Co., 210 Fed.

The nature of the action and the facts, so far as material, are stated in the opinion. If the parties contract for a lawful rate of interest after as well as before maturity the contract or stipulated rate must govern, whether that he more or less than the legal or statutory rate. (O’Brien v. Young, 95 N. Y. 428; Taylor v. Wing, 84 N. Y. 471; Zimmerman v. Klauber, 139 App. Div. 26; Patteson v. Graham, 16 N. Y. S. R. 703; Association, etc., v. Eagleson, 60 How.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1916, which affirmed a decree of the New York County Surrogate’s Court dismissing a petition for probate of the will of Elizabeth Connell, deceased, and also a petition to revoke a decree granting ancillary letters of administration upon her estate.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The Surrogates’ Courts of this State have jurisdiction to admit to probate after the examination of witnesses the wills of non-residents upon taking original proof irrespective of whether or not such wills have been previously proved in the courts of the sovereignty where the testators lived, resided and were domiciled. (Moultrie v. Hunt, 23 N. Y. 394; Dupuy v. Wurtz, 53 N. Y. 556; Matter of Gaines, 84 Hun, 520, 523; Matter of Seabra, 18 Wkly. Dig. 429; Boothe v. Timoney, 3 Dem. 416; Walton v. Hall, 66 Vt. 455; Wells v. Wells, 35 Miss. 638; Still v. Woodville, 38 Miss. 647; Beers v. Shannon, 73 N. Y. 292; Story Confl. Laws [8th ed.], 543, note a; Borer Interstate Law, 4.)</p> <p>The decree granting letters ancillary should be set aside because of the defects in the authentication of the papers. (Code Civ. Pro. § 2695; Bryden v. Taylor, 2 Harr. & John. 36, 399, 402; Kirtland v. Wanzer, 2 Drier, 278; Las Caggas v. Larionda’s Syndics, 4 Mart. [La.] 283, 285, 286; 2 Cowen & Hill’s Notes to Phil, on Ev. 260; Baldwin v. Rice, 183 N. Y. 55; Talcott v. D. Ins. Co., 2 Wash. [C. C.] 499.) Even if the court held correctly that Mrs. Connell resided and was domiciled in' Canada at the time of her death that would not prevent a motion by her next of kin to set aside the issue of the ancillary letters of administration upon the ground that there was no legal proof of the execution and probate of the will in Canada. (Code Civ. Pro. § 2514; Matter of Regan, 167 N. Y. 338; Matter of Henderson, 157 N. Y. 423; Hyland v. Baxter, 98 N. Y. 610; Sipperly v. Baucus, 24 N. Y 46; Heerman v. Hill, 2 Hun, 409; Matter of Flynn, 136 N. Y. 287; Matter of Harlow, 73 Hun, 433; Matter of Odell, 1 Misc. Rep. 390; Bailey v. Stewart, 2 Redf. 212; Bailey v. Hilton, 14 Hun, 3; Matter of Lyon, 26 N. Y. Supp. 469.) The Surrogates’ Courts of this state have jurisdiction to admit to probate, after the examination of witnesses, the wills of non-residents upon taking original proof irrespective of whether or not such wills have been previously proved in the courts of the sovereignty where the testators lived, resided and were domiciled. (L. 1909, ch. 18, § 23; Moultrie v. Hunt, 23 N. Y. 394; Dupuy v. Wurtz, 53 N. Y. 556; Matter of Gaines, 84 Hun, 520; Matter of Seabra, 18 Wkly. Dig. 429; Boothe v. Timoney, 3 Dem. 416; Walton v. Hall, 66 Vt. 455.)</p> <p>The evidence clearly shows that Elizabeth Connell at the time of her death and at the time of the execution of said last will and testament was a resident of and domiciled in the province of Quebec, in the dominion of Canada. (Matter of Wise, 150 N.Y. Supp. 782; Matter of Newcomb, 192 N. Y. 238; Hart v. Kip, 148 N. Y. 306.) The papers upon which the ancillary letters were granted to the respondent were sufficient. (Matter of Gennert, 96 App. Div. 8.) The will is sufficiently proved under the laws of Quebec to entitle respondent to letters. (Matter of Taintor, 5 Redf. 79; Matter of Delaplaine, 45 Hun, 225; Matter of Horton, 217 N. Y. 363.) The appellants not being creditors of the deceased are not entitled to attack the granting of the ancillary letters. (Montgomery v. Boyd, 78 App. Div. 64; Baldwin v. Rice, 100 App. Div. 24; 183 N. Y. 155; Clark v. Poor, 73 Hun, 143; Matter of Law, 56 App. Div. 454; Matter of Gennert, 96 App. Div. 8.)</p>

<p>Real property — decedent’s estate—proceeding under Real Property Law (Cons. Laws, ch. 50, §§ 105, 107) for sale of trust property by trustee thereof — power of court under the statute to order sale of estates in remainder — when order directing such sale authorized and should be sustained.</p> <p>1. Testator directed the trustees appointed by his will to control and pay the net income from his rea.1 estate to his widow during her life, and that no part of his real estate should be sold until after the arrival of the youngest son at the age of twenty-one years, nor until after the decease of his wife — the latter of which events has not occurred. The will devised the remainder of his estate to testator’s four sons. The respondents are infant remaindermen, children of a deceased son. This proceeding, instituted by a petition, under sections 105 and 107 of the Real Property Law (Cons. Laws, ch. 50), seeks an order of the court authorizing and directing the petitioner to sell the real estate. Indisputably the conservation and existence of the trust estate and the creation of an income for the widow required the sale of the real estate. While the court does not possess, inherently, the power to order a sale or mortgaging of an infant’s real property, the power may be given by the legislature. The language of the sections of the Real Property Law referred to as it now stands expresses clearly the legislative intention that the Supreme Court may, speaking generally, order a trustee to sell all the interests constituting the title in fee simple to real property of the trust estate, under the facts and conditions prescribed by them. Their provisions justified and authorized the order of the Special Term directing the sale which the Appellate Division reversed.</p> <p>2. The court does not pass upon the question as to whether or not the sections in question of the Real Property Law validly and in fact authorized an order for the sale or mortgaging of the estates in remainder of adult parties to the proceeding without their consent for the purposes specified in the statute. (Losey v. Stanley, 147 1ST. Y. 560; Mattel■ óf Easterly, 202 NT. Y. 466; 204 N. Y. 586, distinguished.)</p>

Cross-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 13, 1911, which modified and affirmed as modified an order of Special Term confirming the report of a referee appointed to assess the damages sustained by-defendant by reason of an injunction pendente lite. The facts, so far as material, are stated in the opinion.

Miller, deceased. The facts, so far as material, are stated in the opinion. The legacies in question are not specific. (Tifft v. Porter, 8 N. Y. 516; Crawford v. McCarthy, 159 N. Y. 514.) A testator may create a specific legacy in his own terms. (10 Am. & Eng. Ency. of Law [2d ed.J, 715, 716.) The testator made a gift to certain individuals of all of the stock which he had in the ICee Lox Company at the time he made his will, specifying it by name.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1916, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury.</p> <p>The action was brought by the plaintiff as a taxpayer of the county of Rensselaer against the county, its board of supervisors, sheriff and county treasurer, to prevent a waste of the county funds through the illegal action of the defendants.</p> <p>It appears that in January, 1914, charges were presented to the governor of the state against the defendant Henry W. Snell, sheriff of Rensselaer county, alleging misconduct on his part and asking for his removal from office as sheriff. The defendant Snell successfully defended himself against the charges so made and on November 9, 1914, the charges were dismissed by the governor. In defending himself the sheriff incurred expenses for attorney’s fees and disbursements, amounting to $3,546.91. Thereafter he presented to the board of supervisors a claim for such expenses. The board allowed the claim and issued a warrant for the amount thereof, drawn upon the defendant JohnL. Bame, county treasurer, which warrant the county treasurer paid. The relief asked for by the plaintiff is that the action of the several defendants in allowing, paying and receiving the amount of the sheriff’s claim against the county be declared illegal and void, and that the defendants Snell and Bame be required to repay to the county the money which Snell received. The trial court dismissed the complaint and the judgment of dismissal was affirmed by the Appellate Division.</p> <p>Payment of the expenses of a public officer in successfully defending himself against removal would be founded on no moral obligation and hence would be a mere gratuity. The provision of the County Law making the expenses in proceedings before the governor for the removal of any county officer county charges, means only the expenses of prosecution which would be constitutional, and does not mean the expenses of defending which would be unconstitutional. (People ex rel. Nash v. Supervisors, 164 App. Div. 91; Matter of Chapman v. City of New York, 168 N. Y. 80; Matter of N. Y, L. E.& W. R. Co., 98 N. Y. 447; Dubuc v. Lazelle, Dalley & Co., 182 N.Y. 486; Holcombe v. Leavitt, 69 Misc. Rep. 235; People ex rel. Rodgers v. Coler, 166 N. Y. 1; M. Nat. Bank v. Shinn, 163 N. Y. 360.) The reimbursement of the defendant Snell for his counsel fees and expenses, paid in defending himself in a proceeding to remove him from the office of sheriff, was a mere gratuity, was contrary to the prohibition contained in the Constitution and was illegal. (Matter of Chapman v. City of New York, 168 N. Y. 80; Matter of Fallon, 28 Misc. Rep. 748; Matter of Labrake, 29 Misc. Rep. 87; Matter of Jensen, 44 App. Div. 509; Matter of Straus, 44 App. Div. 425.) The County Law does not authorize the payment of the expenses of defending a public officer and the audit of the claim of the defendant Snell by the board of supervisors and the payment of said claim to the defendant Snell by the county treasurer was illegal.' (Matter of Chapman v. City of New York, 168 N. Y. 80; People ex rel. Nash v. Board of Supervisors, 164 App. Div. 89.)</p> <p>The audit of the personal expenses of Henry W. Snell in defending himself against charges was not a proper and.legal county charge, either for audit by the board of supervisors or for payment by the county treasurer. (Const, of N. Y. art. 8, § 10; People ex rel. Nash v. Bd. of Suprs., 164 App. Div. 89.)</p> <p>The word proceedings,” as used in the County Law, in the expression, “ proceedings before the governor for the removal of any county officer,” etc., means and includes the whole matter of the removal; that portion relating to the respondent as well as the portion relating to the relator. (Morewood v. Hollister, 6 N. Y. 309; People v. City of Brooklyn, 49 Barb. 136; Wilson v. Allen, 3 How. Pr. 368; Cordon v. State ex rel. Border, 4 Kans. 489; A., T. & S. F. R. Co. v. Brossfield, 32 Pac. Rep. 814; Hopewell v. State, 22 Ind. App. 489; Uke v. C., M. & S. P. Ry. Co., 64 N. W. Rep. 563; Yeagen v. Wright, 112 Ind. 235.) The history of this provision of the County Law, and the cases decided thereunder, show plainly that it was the legislative intent, which has met the approval of the courts, that the costs and expenses intended to he made a county charge were those of respondents as well as those of relator. (People ex rel. Benedict v. Supervisors, 24 Hun, 413; People ex rel. Smart v. Supervisors, 66 App. Div. 66; People ex rel. Nash v. Supervisors, 164 App. Div. 89.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There is no evidence in this case that any negligence on the part of the defendent was the proximate cause of the accident. (Laidlaw v. Sage, 158 N. Y. 73.) The finding of the jury is sustained by the evidence.

The nature, of the action and the facts, so far as material, are stated in the opinion. The bond in question is in exact conformity with the requirements of the village charter.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant’s motion for a nonsuit should have been granted, and the court’s refusal to grant the same was error and the exception to such denial was well taken. (Williams v. F. Nat. Bank, 118 App. Div. 555; Caddy v. 1. R. T. Co., 195 N. Y. 415; McCormick v. Thompson-Starrett Co., 80 Misc. Rep. 225.) The plaintiff’s case was made out under the Employers’ Liability Act.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 7, 1916, which reversed a decree of the Ulster County Surrogate’s Court judicially settling the accounts, of the executrix of Amedee de Q-. James, deceased.

The nature of the action and the facts, so far as material, are stated in the opinion. No part of the naturalization fees received by the plaintiff during the time that he was county clerk belonged to him, but on the contrary one-half thereof belonged to the county of Erie. The other half belonged and was paid to the bureau of immigration and naturalization. (Freeholders v. Slater, 84 N. J. L. 589; 85 N. J. L. 621; San Francisco. v. Mulcrevy, 15 Cal.

Sohriever,. deceased. The facts, so far as material, are stated in the opinion. A bequest to a testator’s widow while she remains his widow, that is, for life, if she so long continues a widow, and if she shall marry, then over, is not dependent on the contingency of the widow’s marrying again, but takes effect at all events on the determination of her estate, whether by marriage or death. (Jarman on Wills, 1361,1362; Luxford v. Checks, 3 Fed.

The facts, so far as material, are stated in the opinion. Joseph E. De Hoyer, the deceased, was not, in respect to the accident which resulted in his death, an employee of appellant Cavanaugh within the meaning of the provisions of the Workmen’s Compensation Law. At the time of the accident he was the servant of the Crown Oil Company. (Hartwell v. Simonson & Son Co., 218 N. Y. 345; Schmedes v. Deffaa, 214 N. Y. 675; Higginson v. W. U. Tel.

The insurance carrier complied with the Workmen’s Compensation Law, section 54, part 5, when it mailed by registered letter, giving at least ten days’ notice, a notice of cancellation to the assured at his last known place of residence and at the same time notified the commission of that cancellation and it is immaterial whether the assured received the notice of cancellation. (Wolarsky v. N. Y. Life Ins. Co., 120 App. Div. 99; McConnell v. P. S. Life Assn. Society, 92 Fed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 22, 1917, which sustained a writ of certiorari and annulled a determination of the board of assessors , of the city of New York dismissing, for want of jurisdiction, the relator’s claim for damages due to a change of grade. The following questions were certified: “1.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 11, 1916, which affirmed a judgment of the Erie County Court affirming a judgment of the City Court of Buffalo rendered upon a verdict convicting the defendant of the crime of practicing medicine without a license. The facts, so far as material, are stated in the opinion.

Cross-appeals from a judgment of the. Appellate Division of the Supreme Court in the third judicial department, entered February 2, 1916, unanimously affirming an award of the Board of Claims. Because of the retirement before decision of two members of the court who heard the original argument, a re-argument of the appeal was had. The facts, so far as material, are stated in the opinion.

an order of Special Term, denying a motion by defendant for judgment in its favor on the pleadings and granting said motion.' The action was brought to recover upon a policy of liability insurance. • The facts, so far as material, are stated in the opinion. The Appellate Division committed error in dismissing the appeal from the judgment which was entered upon the order granting the defendant’s motion for judgment on the pleadings. (Code Civ.

<p>Appeal — action for deceit and false representations — construction of statement in order of the Appellate Division .that “the facts have been examined ”—conflict of statements in direct examination and cross-examination for the jury to determine — facts examined in action for deceit and held that it was error to reverse judgment entered on verdict of a jury.</p> <p>1. The statement in an order of the Appellate Division that the facts have been examined does not import either the approval or disapproval of them as found by the jury.</p> <p>2. Where a witness makes one statement in the course of the direct examination and a contradictory statement on the cross-examination, there is a conflict in the evidence to be disposed of by the jury.</p> <p>3. This action is to recover the damages sustained by the plaintiff through the alleged deceit of the defendant in inducing the plaintiff to accept another, in the place of the defendant, as owing him commissions for his services in securing a tenant of real estate. The trial resulted in a verdict in favor of the plaintiff. The Appellate Division reversed the consequent judgment and the order denying defendant’s motion for a new trial, and dismissed the complaint. Held, that the evidence .warranted its submission' to the jury and that the Appellate Division erred in dismissing the complaint.</p>

<p>Labor unions — injunction — right of carpenters brotherhood or union to refuse to use woodwork made by non-union manufacturers — when the sending by representatives of such union of notices to members of the union and to building contractors not to use such woodwork is not illegal — injunctions will not be granted to restrain such acts where there are no findings of malice or intent toinjure the good will or business of the plaintiffs or non-union manufacturers.</p> <p>1. The voluntary adoption by an association of employees of reasonable rules relating to persons for whom and conditions under which its members shall work is not illegal at common law. Neither is the enforcement of such rules by the association through fines or by expulsion from the association illegal.</p> <p>2. Workingmen may organize for purposes deemed beneficial to themselves and in that organized capacity may determine that their members shall not work with non-members or upon specified work or kinds of work. If the determination is reached in good faith for the purpose of bettering the condition of its members and not through malice or otherwise to injure an employer the fact that such action may result in incidental injury to the employer does not constitute a justification for issuing an injunction against enforcing such action.</p> <p>■ 3. A strike or boycott may be legal or illegal according to the acts involved therein. So an action for a direct and primary purpose in the interest of individuals or a combination of individuals taken in good faith to advance the interest of the individuals or combination may be useful, while a remote and secondary action which carries with it a degree of malice as a matter of law is illegal.</p> <p>4. Plaintiffs operated an open shop for the manufacture of woodwork for houses and other buildings, and defendants were officers of a brotherhood or voluntary association of carpenters and joiners. The association adopted rules prior to any strike against the plaintiffs’ materials that its members should not work on the products of any mill employing non-union men, and from time to time it circulated letters to contractors stating that in order to avoid labor troubles they were requested to stipulate for the employment of union men and union-made trim and other shop-made carpenter work, and that unless such materials were constructed under strict union conditions they would refuse to handle it, and that stipulating in the contracts that the trim must bear the union label would avoid all complications. The defendants having attempted to enforce the rules of the brotherhood against its members handling non-union made trim woodwork, this action was brought by the plaintiffs to obtain an injunction against the defendants taking action affecting the plaintiffs and the building material made in their mills. The courts below gave judgment perpetually enjoining the defendants from sending such letters to the plaintiffs’ customers or inducing any person to refrain from working on material not bearing the union label. The findings of fact are that the rules of the association were adopted antedating any strikes against plaintiffs’ material and that they were not adopted with the plaintiffs in view, but were intended to apply generally to all non-union mills; that they were adopted to increase wages and shorten hours of labor and to benefit the material condition of the members of the association, and had that effect in their enforcement; that the non-union mills, including that of the plaintiffs, compete in their products with the mills manned by the members of said United Brotherhood; that members of the brotherhood quit work on all jobs complained of because of their rules to work only on union material made by their own members, and of their own volition; that no labor contracts were violated and no violence or threat of violence, and that in all matters complained of they acted against all non-union employers without malice towards the plaintiffs. It also appears that it was not the intent and purpose of the defendants to injure the good will or business of the plaintiffs as individuals or of non-union manufacturers generally. Held, that the facts do not support the judgment. (National Protective Association v. Cumming, 170 N. Y. 315; Paine Lumber Co. v. Neal, 244 U. S. 459, 471, followed.)</p>

The facts, so far as material, are stated in the opinion. The Court of Appeals has no jurisdiction to hear this appeal. (Code Civ. Pro. §§ 190, 191; L. 1917, ch. 290; N. Y. Const, art. 6, § 2; Haroun v. B. E. Light Co., 152 Ñ. Y. 212; People ex rel. v. Barker, 152 N. Y. 417.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 18,… Held: it does not amount/ to a breach of a covenant for quiet enjoyment. (Franklin Bldg. Co. v. Finn, 165 App. Div. 469; Duhain v. M. J. & K. Jewelry Co., 211 N. Y. 364; Sparrow v. Kingman, 1 N. Y. 242; Thompson v. Simpson, 128 N. Y. 270; Long Island Water Supply Co. v. Brooklyn, 166 U. S. 685.) The defenses pleaded are sufficient in law.

The facts, so far as material, are stated in the opinion. The claimant was not an employee within the contemplation of the Workmen’s Compensation Law. (Sheridan v. Groll Const.

The facts, so far as material, are stated in the opinion. Susan, the daughter of the testator, did not take a vested interest in the income of the estate. No part of the income could pass to her next of kin. (Manice v. Manice, 43 N. Y. 385; Delafield v. Shipman, 103 N. Y. 463.) The income from Susan’s share of existing trust estate goes to the next eventual estate, pursuant to statute.

Appeal by the plaintiff from, so much of an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16, 1917, which affirmed so much of a final order in a special proceeding for the condemnation of property for the purposes bf a public highway as included in the compensation awarded to the defendants Fridenberg an item of $1,500 for loss of the water supplying a well.

The facts, so far as material, are stated in the opinion. The dismissal of the relator without giving him an opportunity of making an explanation was contrary to the provisions of section 1543 of the Greater New York charter. (Matter of Griffin v. Thompson, 202 N. Y. 104; People ex rel. Mitchel v. La Grange, 2 App. Div. 444; 151 N. Y. 664; People ex rel. Segee v. Hayes, 106 App. Div. 563; Craigie v. City of New York, 114 App. Div. 880; People ex rel.

The facts, so far as material, are stated in the opinion. A manufacturing company which makes an alteration to its building or builds a building for the purpose of manufacturing does it for pecuniary gain. The building is as necessary to its manufacturing needs as the manufacturing itself. One could not be conducted without the other. The employer in this case in having the walls of its plant repaired was doing that for pecuniary gain.

This action was brought to recover for personal injuries alleged to have been occasioned plaintiff through the negligence of defendants. Plaintiff was in the employ of the defendants in their paper mill. In the performance of his work he was required to insert his hand into a pump to clean it. While doing this, one of the other employees of defendants moved a clutch which started the machinery, seriously injuring plaintiff’s hand and arm.

<p>Practice — Suspension of sentence — Probation — Revocation of probation AND IMPOSITION OF SENTENCE WITHIN TWO YEARS' FROM DATE OF PROBATION.</p> <p>The statutes dealing with the subject of probation, revocation of probation and infliction of punishment which has been suspended (Code Grim. Proc., §§ 11-a and 483) must be read and construed together, and when in conflict section 11-a must control.</p> <p>This writ was sued out and the release of the relator demanded on the ground that at the date when the probation was revoked and the sentence imposed, which was more than one year after the date of his conviction, the time within which said latter act could be performed had expired, and that, therefore, the sentence and the imprisonment thereunder were illegal, and this view has been sustained by the Appellate Division. Held, that this conclusion is erroneous.</p> <p>The fact that the trial court in placing defendant on probation omitted to fix the period for which such probation should continue does not render invalid the sentence, since, in the absence of other limitation, it would be assumed that the probationary period should not continue for more than two years, the period fixed by the statute. Moreover, the omission would not render the judgment void, but the sentence would be subject to correction in this respect.</p>

The facts, so far as material, are stated in the opinion. The office of coroner prior to the Constitution of 1894, which took effect on January 1, 1895, was a constitutional office. (People v. Blair, 47 N. Y. Supp. 495.) Although the office of coroner was no longer a constitutional one after the enactment of the Constitution of 1894, still it falls within section 2 of article 10 of the Constitution, which is known as the home rule section.

The nature of the claim and the facts, so far as material, are stated in the opinion. Having failed to prove the filing of a notice of intention to file a claim against the state pursuant to statute, the claimant’s right to relief herein is defeated.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 10, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, , are stated in the opinion.

Appellate Division of the Supreme Court in the first judicial department, entered February 2, 1915, modifying and affirming as modified 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. There is no presumption of a consideration for the contract sued upon arising from the character of the instrument.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant, in attacking the dismissal of the counterclaim, is entitled to the most favorable inferences deducible from the evidence, and all disputed facts are to be treated as established in his favor.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to receive the testimony of the physician who attended the deceased during his lifetime in his professional capacity. (Meyer v. Knights of Pythias, 178 N. Y. 63; Holden v. Met. L. Ins. Co., 165 N. Y. 13.) It was not error to admit the evidence of Dr. Schoen. (Patten v. United Life & Acc. Ins. Assn., 133 N. Y. 450; Jennings v. Metropolitan Life Ins. Co., 81 App.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 3, 1917, which modified and affirmed as modified a decree of the Cattaraugus County Surrogate’s Court admitting to probate and construing the will of John P. Colegrove, deceased.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 7, 1914, affirming a judgment in favor of defendants 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 trial court erred in charging the jury that as a matter of law there was no evidence upon which it could find that the defendants accepted the turkeys. (Norton v. Dreyfuss, 106 N. Y. 90; Isbell-Porter Co. v. Heineman, 126 App. Div. 713; Williston on Sales, § 483; Brown v. Foster, Í08 N. Y. 387; Levison v. Seybold Mach. Co., 22 Misc. Rep. 327; Kienle v. Klingman, 24 Misc. Rep. 708; Burrowes v. Rapid Safety Co., 97 N. Y. Supp. 1048; Mason v. Smith, 130 N. Y. 474; Duluth Log Co. v. Hill Lumber Co., 110 Minn. 124; Hitchcock v. Griffin-Skelly Co., 99 Mich. 447.) The court erred in charging the jury that if they found that the plaintiff sold to the defendants dry picked turkeys then they must find a verdict for the defendants. (Burrowes v. Rapid Safety Co., 97 N. Y. Supp. 1048; Mason v. Smith, 130 N. Y. 474; Littlejohn v. Shaw, 159 N. Y. 188.)</p> <p>A vendee of perishable goods arriving from a distant state in a decaying condition may become, for the purpose of sale thereof, the agent of the vendor, ex necessitate rel, particularly when the vendee has paid the freight charges and has advanced to the vendor $1,000 on account of the purchase price. (2 Corpus Juris, 460, § 67; Sands v. Taylor, 5 Johns. 393; Buck v. Levy, 18 J. & S. 519; Straus v. Nat. Parlor Furniture Co., 76 Miss. 343; Descalzi v. Sweet, 75 Atl. Rep. 308; Hitchcock v. Griffin-Skelly Co., 99 Mich. 447; Jones v. Bloomgarden, 143 Mich. 326; Rubin v. Sturtevant, 80 Fed. Rep. 930; Little Rock Grain Co. v. Brubaker, 89 Mo. App. 1; Youghiogheney Iron & Coal Co. v. Smith, 66 Penn. St. 340; Columbian Iron Works v. Douglas, 84 Md. 44.) A non-committal vendor of decaying poultry is entitled to no more notice of a proposed resale for his account by the vendee than the exigencies of the case permit. (Benj. on Sales ['5th ed.], 950; Ullman v. Kent, 60 111. 271; Van Brocklen v. Smeallie, 140 N. Y. 70; Lewis v. Greider, 49 Barb. 606; 51 N. Y. 231; Mann v. National Linseed Oil Co., 94 Hun, 558; Brown v. Nelson, 66 Vt. 660.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in granting plaintiff’s motion for judgment on the pleadings. The answer alleged fraud in the procuring of the bond or undertaking alleged in the complaint, which is a complete defense.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1915, affirming an award of the state industrial commission made under the Workmen’s Compensation Law. The facts, so far as material, are stated in the opinion. The deceased, Peter Plass, was engaged in interstate commerce while working for the Central New England Railway Company on or about August 8, 1914.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 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>The complaint should have been dismissed at the close of the plaintiff's case and the refusal to dismiss was error. The plaintiff failed completely to show actionable negligence. (Larmore v. Crown Point Iron Co., 101 N. Y. 391; Birch v. City of New York, 190 N. Y. 397; Hickok v. Auburn L., H. & P. Co., 200 N. Y. 464; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Gumhouse v. Franckel, 153 App. Div. 359; 211 N. Y. 567; Callan v. Pugh, 54 App. Div. 545; Fanjoy v. Searles, 29 Cal. 250; Larkin v. O’ Neill, 119 N. Y. 221; Flanagan v. Atlantic Alcatraz Asphalt Co., 37 App. Div. 476; Miller v. Woodhead, 104 N. Y. 471; McAlpin v. Powell, 70 N. Y. 126; Cowen v. Kirby, 180 Mass. 504.)</p> <p>The defendant’s negligence was sufficiently shown by the evidence and the refusal of the learned trial court to dismiss the complaint was proper. (Larmore v. C. P. Iron Co., 191 N. Y. 391; Grill v. Gutfreund, 65 Misc. Rep. 506; Cheevers v. Ocean S. S. Co., 26 Misc. Rep. 193; Homer v. Everitt, 16 J. & S. 300; Stastney v. Second Ave. Ry. Co., 18 N. Y. Supp. 800; Shearman & Redfield on Neg. [5th ed.] 183; Thompson on Neg. [2d ed.] §§ 953, 985; Newall v. Bartlett, 114 N. Y. 399; Fogarty v. Bogart, 43 App. Div. 430; Delaney v. P. R. R. Co., 78 Hun, 393; Grifen v. Manice, 166 N. Y. 188; Swords v. Edgar, 59 N. Y. 28; Stinson v. Edgewater Saw Mills Co., 139 App. Div. 170; John Spry Lumber Co. v. Dugan, 80 Ill. App. 394.)</p>

The motion to vacate - the writ was made upon the grounds that the order directing the issuance of the writ was granted upon the- motion of one G-atiriel' I. Lewis, representing himself as attorney-for-the-relator,-whereas he was not acting as attorney for the relator, but for a corporation known as L. Tanenbaum, Strauss & Company, Inc., which was a stranger to the subject-matter of the proceeding; that the proceeding was commenced and the said writ was obtained in violation…

Plaintiff brought two applications for accident liability insurance to defendant’s general agents who stated that his compensation would be twenty five per cent of the earned premiums. After 4he policies' had been in force some months the policies, at the request of the insured,' were canceled and new policies issued.

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 overruling a demurrer to the complaint and sustained such demurrer in an action to recover broker’s commissions alleged to have been earned under an employment to obtain for defendant a purchaser for cartridges.

The answer does not deny the receipt of the amount claimed to the use of the plaintiff, but it does deny that by reason of the receipt it became indebted in any sum and alleges that the amount was applied to the use and purposes set forth in the counterclaim for freight, storage, cartage and insurance alleged to have been expended by the defendant in connection with three lots of merchandise consigned by the plaintiff from Buffalo to the defendant in San Francisco in the…

Y., and to determine the rights of the plaintiff and the defendant Dobler Brewing Company under a certain assignment and power of attorney in and by which the’ plaintiff authorized and empowered the defendant corripany to act in his place and stead in all things relating to the surrender for rebate, the transfer of said certificate to any other person or to any other place, and for the purpose of the transfer from place to. place to make, execute and file the notice of…

The court entertained the motion to set aside the veixlict and for a new trial upon a condition of the policy requiring an action brought upon the policy to be begun within ninety days after payment of loss, and it appearing from the evidence that the loss was’paid on March 20, 1911, and that the action was not begun until October 12, 1911, the court granted the motion aS á matter'of law and not as amatter of discretion.

The relief sought was the recovery of three generators sold on conditional sales contract by plaintiff to the James McDonnell Company and subsequently transferred to the defendant.

<p>Motion for leave to apply to the Appellate Division for resettlement of order appealed from.</p>

Bailey, deceased, for the payment of his debts. Also appeal from an order of said Appellate Division entered May 8, 1917, which affirmed an order of the Warren County Surrogate’s Court denying a motion for additional security for costs.

the third judicial department, entered March 16, 1911, affirming an award of the state industrial commission under the Workmen’s Compensation Law.

The defense was that the policy sued upon had been canceled by plaintiff’s request in writing to «defendant received before the fire.

, Rosedale avenue and Commonwealth avenue, in the borough of The Bronx. None of the intended regulation awards was made to appellant. Appellant, however, owns lands, included within the area of assessment for benefit adopted by the board of estimate and apportionment, within which area a portion of the sums so awarded will be assessed.

, and John B. Simpson, Jr., as executors of and trustees under the will of William Simpson, deceased, that the above-entitled proceeding and the petitions, resolutions, orders, reports and all other papers and proceedings therein purporting to authorize the said proceedings or upon which the same was founded be set aside, vacated and annulled, and each and every part of said order, as well as the whole thereof, in case the last above-mentioned order of the Appellate Division…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 2, 1911, affirming an award of the state industrial commission under the Workmen’s Compensation Law. Claimant’s husband was killed while engaged in supervising a detail of the roofing business carried on in his father’s name. The question at issue was whether he was an employee of his father within the Workmen’s Compensation Law.

Claimant’s husband was employed generally by Mr. Frank A. Fonda, who did work for the Saratoga County Sanitarium in grading and digging of- ditches. The defendant McQueen had a contract for drilling a well for the supply of water for this sanitarium, and Fonda frequently loaned men to him and sometimes McQueen loaned men to Fonda. Fonda had nothing to do with the well drilling, except in loaning men to McQueen.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 1, 1916, which affirmed an order of Special Term denying a motion by plaintiif for judgment in her favor upon the pleadings. The action is against a trustee by the creator of a trust to enforce its revocation under section 23 of the Personal Property Law.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 16, 1917, disbarring the appellant herein from practice as an attorney and counselor at law.</p>

The plaintiff .entered into an agreement with his attorneys to pay them a sum equal to fifty per cent of any recovery that might be obtained in proceedings against the defendants. The agreement provided that said attorneys were to institute, prosecute and maintain such action or actions, proceeding or proceedings as to them may seem advisable. An action was instituted which resulted in a decree favorable to the plaintiff.

Appeal in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the. second judicial department, entered March 9, 1917, which affirmed an order of the Court of Special Sessions of the City of New York granting a motion in arrest of j'udgment. Bach defendant sold a loaf of bread, unwrapped, without any label or tag attached thereto showing either standard weight, standard measure or numerical count.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department entered January 7, 1915, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to restrain the defendants from conspiring, combining or. acting in concert in any manner to injure or interfere with the plaintiff’s good will, trade or business.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 8, 1917, which reversed an order of Special Term granting a motion by plaintiff for judgment in her favor upon the pleadings in an action to compel specific performance of a contract to purchase certain real property in the city of New York.

The answer set up, among other defenses, the Statute of Limitations. The following questions were certified: “ (1) Were all the plaintiff’s damages included in one cause of action arising from the original delivery of the circular and alleged' false representations made in November, 1906? (2) Upon-the complaint, answer and reply was the claim of the plaintiff barred by the Statute of Limitations? (3) Did the complaint state facts sufficient to constitute a cause of action? ”

During a display of fireworks in Madison Square, managed and conducted by the Pain Manufacturing Company, which had been employed for that purpose by the National Association of Democratic Clubs, some of the fireworks exploded and, as a result of the explosion, one Dennis Shea, a police officer, was killed. His administratrix thereafter commenced an action against the city of New York to recover damages.

Miller, and used by them in remodeling a building upon lands owned by said Millers under a contract for the purchase thereof of the defendant, appellant, Harris Barth. From a judgment foreclosing said mechanic’s lien and adjudging that the interests of said Barth in the real property be first sold to satisfy the plaintiff’s claim and the costs and expenses of sale, the said Barth appealed.

The present incumbent of that office was elected at the general election in 1915, and received a certificate of election for a term of three years commencing on January 1, 1916. The board of elections proceeded on the theory that the term of the present incumbent does not expire until the end of 1918, and consequently took no proceedings for the election of his successor at the coming general election.

Edward A. Richards and Harrison C. Glore were the candidates of the Democratic and Republican parties, respectively, for the office of justice of the Municipal Court of the city of New York for the seventh district of Brooklyn. That office was to be voted for by the voters residing in the seventh Municipal Court district of the borough of Brooklyn.

Moore for the office of alderman in the fifty-eighth district of the city of New York and place his name upon the ballots as a candidate for such office. The petitioner sought to file an independent certificate of nomination with the board of elections nominating him as candidate under the bull’s eye emblem for the office of alderman of the fifty-eighth aldermanic district.

Barfield for the office of member of assembly from the twenty-second district and place his name upon the ballots as candidate for such office. Mr. Barfield sought to file an independent certificate of nomination with the board of elections nominating him as candidate under the bull’s eye emblem, for the office of member of assembly of the twenty-second assembly district, county of Kings.

The petition contained 2,209 signatures and was rejected by the board of elections upon the ground that that number was insufficient, it being contended that under section 122 of the Election Law at least 3,000 were required.

The Court of Claims dismissed the claim herein upon the ground that no proof was offered establishing the filing in the office of the clerk of the Board of Claims and with the attorney-general of a “ notice of intention to file a claim ” against the state pursuant to section 264 of the Code of Civil Procedure. That court refused to pass upon the contention by the claimant that it appeared from the evidence that the claim was filed within six months from the date it accrued.

One Hageman, plaintiff’s assignor, signed a contract with the defendant as a baseball player for the season of 1912, beginning April fifteenth and ending October fifteenth, at a salary of $400 per month. This contract was by its terms made subject to the conditions of the national agreement and of the rules of the national commission.

The trial court found that on or about the 15th day of February, 1909, Tevis delivered the note to Charles W. French; that thereafter, on… Held: as matter of law, that the plaintiff did not take the note in due course, holding that French was an agent of Tevis, that he used the note to pay his own debt to the plaintiff, and that where an agent or other fiduciary uses the property or funds of his beneficiary to pay his own debt the person taking the same, with notice of the…