Volume 222 — New York Reports

The nature of the action and the facts, so far as material, are stated in the opinion. The failure to file the assignment to the plaintiff- in the offices of the county clerks of New York and Queens in no way affected its validity as between the parties to it and the defendant, as the statute (Laws of 1897, ch. 418, § 1) makes an assignment not filed invalid only as against mechanics’ liens subsequently filed. (Edison El. Ill. Co. v. Frick Go., 221 N. Y. 1.)

Appeal, by permission, from, an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 19, 1917, 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 injuries which resulted in the death of Charles W. Gifford did not arise out of and in the course of his employment.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 30, 1917, disbarring the appellant herein from practicing as an attorney and counselor at law in the state of New York.

<p>Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 24, 1916, which affirmed a judgment entered upon a prior order of said Appellate Division in reversing an order of Special Term denying defendant’s motion for judgment on the pleadings and granting said motion. (See 174 App. Div. 15.)</p>

<p>Appeal — order of reversal by Appellate Division — presumption that reversal is on the law unless questions of fact on which reversal was made are specified or referred to by number or other designation — evidence inadmissible under section 829 of Code of Civil Procedure — order of reversal of Appellate Division directing judgment for plaintiff—when it should be modified and new trial ordered.</p> <p>1. A reversal by the Appellate Division must be presumed to be on the law “ unless the particular question or questions of fact upon which the reversal was made * * * are specified and referred to by number or other adequate designation in the body of the judgment or order appealed from.” (Code Civ. Pro. § 1338.) Hence the only safe course is to identify the rejected findings either by number or by other designation so unequivocal as to leave no room for construction.</p> <p>2. Plaintiff who was the holder of a mortgage received part payment of the consideration for its transfer and a postdated check for the balance. Plaintiff left with the maker of the cheek the original bond and mortgage, an assignment of it to plaintiff from, the original holder and an assignment signed and acknowledged by plaintiff with the assignee’s name a blank. The person receiving these papers filled in the name of a party to whom he was indebted and delivered the instrument to him together with the bond and mortgage and the earlier assignment which was plaintiff’s only evidence of title. Plaintiff was allowed to prove as against such later assignee in behalf of his contention that he had a hen for the sum remaining unpaid on the transfer, that in a conversation with his assignor since deceased it was agreed that the blank assignment was delivered upon the condition that no effect was to be given to it until the postdated cheek was paid, and that in the event of non-payment all the documents were to be returned. Held, that the testimony was inadmissible under section 829 of the Code of Civil Procedure.</p> <p>3. The court at Trial Term admitted the evidence of the conversation but found that the delivery of the assignment was not conditioned on the payment of the check. The Appellate Division reversed the judgment and directed judgment for the plaintiff, holding that the delivery of the assignment was conditional. Held, that the judgment, of reversal will not be interfered with, but that the direction for judgment in favor of plaintiff should be stricken out and a new trial granted.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement sued on was made by the organizers of the defendant in behalf of the, corporation which had power after organization to adopt it. (Morawetz on Priv. Corp. [2d ed.] § 549; Cook on Corp. 2214, § 707; Pittsburgh, etc., Co. v. Quintrell, 91 Tenn. 693; Hastings v. B. L. I. Co., 138 N. Y. 473; Bonmer v. A. S., etc., Co., 81 N. Y. 468; Burden v. Burden, 8 App.

Bunce, deceased. The facts, so far as material, are stated in the opinion. The exemption allowed by the courts below is not conferred by the statute. (Matter of Mason, 69 Misc. Rep. 280; Matter of Corbett, 171 N. Y. 516; Matter of Costello, 189 N. Y. 288; Matter of Haley, 89 Misc. Rep. 24.) Similar language in prior statutes has been construed in accordance with appellant’s contention. (Matter of Costello, 189 N. Y. 288; Matter of Rosendahl, 40 Misc.

. The nature of the action and the facts, so far as material, are stated in the opinion. It was a question for the jury whether the acts of alleged waiver constituted a waiver of the time limit.

The nature of the action and the facts, so far as material, are stated in the opinion. There was evidence to show that the defendant waived, or is estopped from setting up, the condition of the application requiring prepayment of the first premium. (Bochen v. W. Ins. Co., 35 N. Y. 131; Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117; Sheldon v. Atl., etc., Ins. Co., 26 N. Y. 460; Wood v. Poughkeepsie Mut. Ins. Co.; 32 N. Y. 619; Snyder v. Nederland Ins. Co., 202 Penn.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered April 26, 1915, affirming a judgment in favor of defendant dismissing the complaint upon failure of plaintiff to serve an amended complaint, pursuant to leave • granted him .in an interlocutory judgment sustaining a demurrer to. the complaint. The notice of appeal brings up for review the interlocutory judgment.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The plaintiff is entitled to damages for the destruction of the leased premises. (Code Civ. Pro. §§ 2256, 2258; Hodgkiss v. Dayton, Brower Co., Inc., 93 Misc. Rep. 109; Meeker v. Spalsberg, 60 N. J. L. 60; Rich v. Doyenn, 85 Hun, 510.) The plaintiff is entitled to damages for the refusal of the defendant to let him into, possession of the leased premises. (United Realty Co. v. Roth, 193 N. Y. 570; Ellis v. Moore, 208 N. Y. 103.) The defendant is liable to the plaintiff for a breach of the lease. (Terwilliger v. Browning, King & Co., 152 App. Div. 522; Snow v. Pulitzer, 142 N. Y. 263; Crawford v. Waters, 46 How. Pr. 210; Yick Wo v. Hopkins, 118 U. S. 356; Simon v. Schmidt, 139 App. Div. 625.)</p> <p>No cause of action accrued to plaintiff by reason of the alleged destruction of the bath establishment. (Knapp v. City of Brooklyn, 97 N. Y. 520; St. James Church v. Huntington, 82 Hun, 125; Peerrot v. Mt. Morris Bank, 120 App. Div. 247; Ellis v. Keeler, 126 App. Div. 343; Code Civ. Pro. § 2253; Caesar v. Rubinson, 174 N. Y. 493, 498; Slater v. Van Chorus, 120 App. Div. 16; Berg v. Kaiser, 137 App. Div. 1; Bien v. Bixby, 22 Misc. Rep. 126; 3 McAdam, on Landl. & Ten. 159.) The order of redemption is a complete bar to any claim for damages as to matters connected with the premises from the date of the warrant of dispossession to the entry of the said order. (Code Civ. Pro. § 2259; Bien v. Bixby, 22 Misc. Rep. 126; 18 Misc. Rep. 415; Smith v. Rathbun, 75 N. Y. 122; Kraeger v. Warnock, 81 App. Div. 150.) The alleged failure of the defendant to place the plaintiff in possession pursuant to the order of redemption gave rise to no cause of action in plaintiff’s favor. (U. M. Realty & Imp. Co. v. Roth, 193 N. Y. 570; Gardner v. Keteltas, 3 Hill, 330; Mirsky v. Horowitz, 46 Misc. Rep. 257; Code Civ. Pro. § 1496; 2 McAdam on Landl. & Ten. [4th ed.] 1504; Mosher v. Yost, 33 Barb. 240; People v. Mayor, etc., 28 Barb. 240; Code Civ. Pro. § 1675.)</p>

which affirmed a decree of the Westchester County Surrogate’s Court admitting to probate and construing the will of Clara F. Hitchcock, deceased. The facts, so far as material, are stated in the opinion. All real and personal property of testatrix, at her death, vested in executors under an express trust.

The facts so far as material are stated in the opinion. The indictment was fatally defective. The defect was one of substance and could not be cured1 by amendment. (State v. Davidson, 36 Tex; 325; 2 Hale’s Pleas of the Crown, 324; 1 Rolle’s Abridg. 991; Terrill v. State, 165 Ind. 443; Dickson v. State, 20 Fla. 200; Serpentine v. State, 1 How. [Miss.] 256; Drummond v. State, 4 Tex.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff was a mere licensee with no legal right on defendant’s premises. The only duty defendant owed him was to refrain from committing any intentional, willful or negligent affirmative act calculated to injure him.

The nature of the action and the facts, so far as material, are stated in the opinion. Kucewicz, the belt repair man, had command and control over the plaintiff and was not his fellow-servant. (Famborille v. Atl. G. & P. Co., 155 App. Div. 833; Pelow v. Oswego Const. Co., 217 N. Y. 506; Ciccola v. R. A. M. Co., 174 App. Div. 313.) The negligence of Kucewicz, even though committed while performing a detail of the work, is negligence for which the master is liable.

The nature of the action and the facts, so far as material, are stated in the opinion. Assuming that the contract does not contain an express covenant and agreement on the part of the plaintiff to use his best endeavors and efforts to place indorsements, make sales or grant licenses to manufacture, nevertheless such a covenant must necessarily be implied from the terms of the contract itself and all the circumstances.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states a good cause of action against the defendant for the recovery of the contract price of the stock, and the case was tried on the correct theory of law. (Burnham v. Eyre, 123 App.

The facts, so far as material, are stated in the opinion. The trial court properly declined to charge as a matter of law that the witness Caulfield was an accomplice. (People v. Zucker, 20 App. Div. 363; 154 N. Y. 770; People v. Katz, 209 N. Y. 311; People v. Sweeney, 213 N. Y. 37; People v. Elliott, 106 N. Y. 228; People v. Mayhew, 150 N. Y. 346; People v. Yannicola, 133 App. Div. 885. People v. Gerst, 137 App. Div. 272; Whart. Crim.

Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 14, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the actions and the facts, so far as material, are stated in the opinion. It was error for the court to receive in evidence the opinion of the fireman that the fire had been burning from half to three-quarters of an hour.

.The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not negligent because it purchased and used a press constructed in the manner in. which this press was built. (Harley v. B. C. Mfg. Co., 142 N. Y. 31; Toye v. United Dressed Beef Co., 141 App. Div. 332; McGrath v. Fibre Conduit Co., 122 App. Div. 424; Healy v. B., etc., R. Co., 111 App. Div. 618; Rath v. Transit Development Co., 150 App.

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to dismiss the plaintiffs’ complaint. (Stewart v. Ferguson, 164 N. Y. 555; Quigley v. Thatcher, 207 N. Y. 66; Bohnoff v. Fischer, 210 N. Y. 172; Caddy v. I. R. T. Co., 195 N. Y. 415; Starrier v. Hosier, 221 N. Y. 237; Feldman v. Mackay Co., 174 App. Div. 848; Loesch v. L. I. R. R. Co., 165 App.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1917, which affirmed an order of Special Term directing the commissioners of estimate and assessment in the above-entitled proceeding to ascertain and determine the compensation which should be made to the respondent for damages to her property by reason of the closing of a street.</p> <p>The following question was certified: “ Were the easements for street purposes of Mary E. Farrelly in and over Graham street extinguished by operation of the provisions of chapter 1006 of the Laws of 1895? ”</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Chapter 1006 of the Laws of 1895 does not authorize the closing of private streets. (Holloway v. Southmayd, 139 N. Y. 390; Schonleben v. Swain, 130 App. Div. 521; 198 N. Y. 622; Matter of Mayor, etc., 41 App. Div. 586; Matter of Walton Ave., 131 App. Div. 696; Matter of Olinger, 160 App. Div. 96.) Graham street was never a public street. (People v. Underhill, 144 N. Y. 316; Matter of Olinger, 160 App. Div. 96; Matter of Juniper Avenue, 162 App. Div. 291.)</p> <p>Graham street was a public street by reason of the dedication thereof by the adjoining owners and the acceptance thereof by the public authorities. (People v. Underhill, 144 N. Y. 316; Uhlefelder v. City of Mi. Vernon, 76 App. Div. 348; Flack v. Village of Green Island, 122 N. Y. 107; City of Cohoes v. D. & H. C. Co., 134 N. Y. 397; Matter of Hunter, 163 N. Y. 542; Matter of Mayor, etc., 41 App. Div. 586; Matter of Vil. of Olean v. Steyner, 135 N. Y. 341; Palmer v. East River Gas Co., 115 App. Div. 677; Pomfrey v. Vil. of Saratoga Springs, 104 N. Y. 459; Smith v. City of Buffalo, 90 Hun, 118; Robinson v. Mayor, etc., 59 N. J. Eq. 56.) Chapter 1006 of the Laws of 1895 authorizes compensation for damages caused by the closing of private streets and the determination of the court below was correct even though Graham street had not been accepted by the public authorities. (Barber v. Woolf, 216 N. Y. 7; Astor v. Thwaites, 170 App. Div. 624; Matter of Mayor, etc., 28 App. Div. 143; 157 N. Y. 409.)</p> <p>The language of the act of 1895 plainly applies to private streets as well as to those that are public. (Matter of Mayor, etc., of N. Y., 128 App. Div. 143; Matter of Mayor, etc. [Vanderbilt Ave.], 95 App. Div. 533; 119 App. Div. 882; 189 N. Y. 551; Barber v. Woolf, 216 N. Y. 7.)</p> <p>It is not open to discussion that private or paper streets are within the scope of chapter 1006 of the Laws of 1895. (Barber v. Woolf, 216 N. Y. 7.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The character of an action is determined by the allegations of the complaint and the issues are formed and limited-by the pleadings.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence was sufficient to warrant the submission of the case as an issue of fact, and the decision of the Appellate Division dismissing the complaint was error. (Krauss v. Birnbaum, 200 N. Y. 130; Carney v. Dock Co., 191 N. Y. 301; Orser v. City of New York, 127 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The act does not illegally delegate legislative powers. (2 Dillon on Mun. Corp. [5th ed.] § 570; Mills v. Sweeney, 219 N. Y. 213; Aldinger v. Pugh, 57 Hun, 181; Gibbs v. Luther, 81 Misc. Rep. 611; 158 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Where a contract of loan leaves the rate of interest to be determined by hazard, so that the lender may ultimately receive either more or less than legal interest, as the chance turns out, and the speculation is a real and not a colorable one, the transaction is not within the usury statute.

The nature of the action and the facts, so far as material, are stated in the opinion. Since the defendants gave notice to the plaintiff that it was their intention to abandon the contract, the plaintiff was bound to make an effort to reduce the damages. (Dustan v. McAndrews, 44 N. Y. 72; Sedgwick on Damages, § 753; Van Brocklen v. Smeallie, 140 N. Y. 70.)

' The facts, so far as material, are stated in the opinion. Section 1142 violates both the Federal and State Constitutions, -as to individual liberty, because of its failure of regulation. It establishes an absolute inhibition of the dissemination of information to all persons, in that it fails to make provision for cases- of women who suffer from certain infirmities, whereby the statute endangers their lives and brings about a condition injurious to their health.

The nature of the action and the facts, so far as material, are stated in the opinion. The shipments involved in this action were interstate, and the rule of liability applicable to the transaction is that laid down by the Federal courts. (Southern Ry. Co. v. Prescott, 240 U. S. 632; Barstow v. N. Y., N. H. & H. R. R. Co., 158 App. Div. 665; Adams Express Co. v. Croninger, 226 U. S. 491; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639; M., K. & T. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The assignment from Peckworth to the respondent, the New York County National Bank, is not valid as against the appellants, mechanics’ lienors, for the reason that neither the contract, nor a copy thereof, nor a statement containing the substance thereof, was filed in the office of the county clerk. (L. 1909, ch. 38, § 15; Barrett v. Schaefer, 162 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 7, 1915, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term 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 guaranty relates to future loans and discounts and not to renewals of antecedent notes. (Rudd v. Robinson, 126 N. Y. 113; Bank v. Dean, 154 App. Div. 869; Thayer v. Schley, 137 App. Div. 166.) The renewal of an old note does not constitute a loan or discount. (A. S. Bank v. Savery, 82 N. Y. 291; Nat. Bank v. Johnson, 104 U. S. 271; F. Nat. Bank v. Carleton, 43 App. Div. 6; Glyn v. Hertel, 8 Taunt. 208; Dunn v. O’Connor, 25 App. Div. 73; Brown v. M. Nat. Bank, 169 U. S. 416; Bramblette v. Deposit Bank, 76 S. W. Rep. 193; Limerock Bank v. Hewitt, 52 Maine, 531; Jagger Iron Co. v. Walker, 76 N. Y. 521; Nat. Bank v. Thomas, 220 Penn. St. 360.) A contract of guaranty will not be construed to apply to a past indebtedness unless it so expressly provides. (People v. Lee, 104 N. Y. 441; Brandt on Suretyship and Guaranty, § 108.) The instrument of guaranty being complete and unambiguous, its construction could not be affected by extrinsic testimony. (Trustees of Southampton v. Jessup, 173 N. Y. 84; Morrell v. Cowan, L. R. [7 Ch. Div.] 151; Wallach v. Riverside Bank, 206 N. Y. 434; Stanton v. Granger, 125 App. Div. 174; 193 N. Y. 656.)</p> <p>The nonsuit at the Trial Term was error. (Ringe v. Judson, 24 N. Y. 64.) Intent of the parties; the construction they themselves put upon the contract; the manner in which they worked the contract, all are important factors. (Wesp v. Muckle, 136 App. Div. 241; F. N. Bank v. Jones, 219 N. Y. 312.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The question of defendant’s negligence was one of fact which should have been submitted to the jury. The proximate cause of the accident was the act of the driver in leaving the horse unhitched and unattended at a place from which it was possible and easy for the horse to wander, and from which place it did wander to the train concourse. (Williams v. Koehler & Co., 41 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division erred in holding that there was not a hiring of the plaintiff for at least one year. (Marshall v. Sackett, 166 App. Div. 141; Moran v. Standard Oil Co., 211 N. Y. 187; Cuppy v. Stolwerck, 216 N. Y. 591.) The hiring of the plaintiff was a hiring at will. (Martin v. N. Y. L. Ins. Co., 148 N. Y. 117; Watson v. Gugino, 204 N. Y. 535; Cuppy v. Stollwerck, 158 App.

Fowles, deceased. The facts, so far as material, are stated in the opinion.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 30, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>When the defendant surrendered possession of the premises to the plaintiff on the 15th day of July, 1906, in compliance with the final order in the summary proceedings, the lease was canceled, and the relationship of landlord and tenant no longer existed, and the plaintiff is not entitled to recover in this action rent due under the lease after its cancellation. (Ash v. Purnell, 32 N. Y. S. R. 306; Righlander v. Niles Tobacco Co., 21 Misc. Rep. 339; Newcombe v. Eagleton, 19 Misc. Rep. 603; Gallagher v. Reilly, 31 N. Y. S. R. 556; Baldwin v. Thibadeau, 43 N. Y. S. R. 157; Boehm v. Rich, 13 Daly, 62; Hoffert v. Dutton, 74 Mise. Rep. 433; Fifth Ave. Investment Co. v. Realty Co., 75 Mise. Rep. 651; Griffin v. Keese, 187 N. Y. 454; Lewis v. O. N. & P. Co., 125 N. Y. 341.) The decision of the Court of Appeals in this action has no bearing, upon the case as it now stands. (Elsey v. Metcalf, 1 Den. 326; Stanton v. Wetherwax, 16 Barb. 261; Wangler v. Swift, 90 N. Y. 44; Currie v. Cowles, 6 Bosw. 357; Rogers v. Murray, 3 Bosw. 357; Citizens Bank v. Rung Furniture Co., 76 App. Div. 471.)</p> <p>The decision of this court upon the former appeal is determinative of the issues involved and is decisive of this case in favor of the plaintiff upon the evidence now before the court. (Cornwell v. Sanford, 208 N. Y. 126.) The judgment of the Municipal Court in the action for rent is res adjudícala of the fact that the lease was not terminated by the summary proceeding or the abandonment of the premises by the defendant. (Pray v. Hegeman, 98 N. Y. 351; Reich v. Cochran, 151 N. Y. 122; Lorillard v. Clyde, 122 N. Y. 47; Zerega v. Will, 34 App. Div. 488; Phipps v. Oprandy, 69 App. Div. 497; Townsend v. Read, 13 Daly, 198; Hawkins v. Ringler & Co., 47 App. Div. 262; O’Connor v. Byrne, 86 App. Div. 627; Von der Born v. Schultz, 111 App. Div. 263; Ferris v. Tannebaum, 39 N. Y. S. R. 71.) If the lease was canceled by the summary proceedings, no rent was recoverable under the lease for the month of July. (Michaels v. Fishel, 169 N. Y. 381; Rainier Co. v. Smith, 65 Misc. Rep. 560; Berg v. Kaiser, 137 App. Div. 1; McDonald v. Ruggiero, 136 App. Div. 699.) The commencement of the action for rent in the Municipal Court of Buffalo, after the final order in the summary proceeding, was an affirmance of the lease by the plaintiff, and nullified the summary proceeding. (Voorhies v. Cummings, 42 App. Div. 260; Paddell v. Janes, 84 Misc. Rep. 212; Hinton v. Bogart, 78 Misc. Rep. 46; Murray v. Harway, 56 N. Y. 337; Conger v. Duryee, 90 N. Y. 594; Conrow v. Little, 115 N. Y. 387; Dembitz v. O. C. Traction Co., 147 App. Div. 588.)</p>

The nature oi' the action and the facts, so far as material, are stated in the opinion. The plaintiff is clearly entitled to recover damages to the extent that they resulted from errors or misrepresentations in contract plan No. 63.

On April 26, 1912, the city of New York, through its commissioner of docks, granted to the defendant a permit or license to sell books, newspapers and other articles therein described for the term of one year from 12 o’clock noon on May 1, 1912, at the municipal ferry terminal of the Staten Island Ferry in the borough of Manhattan, at an annual rental of $23,000.

The nature of the action and the facts, so far as material, are stated'in the opinion. The contract obligated the defendant to operate its plant and to produce and furnish to the plaintiff its product of wet grains for a period of five years or until 500,000 barrels of beer shall have been brewed.

<p>Surety bond — loan of money on accounts for merchandise sold to federal government — action upon bond given by surety company to plaintiffs — invalidity of assignment to plaintiffs of moneys to be received from federal government — when plaintiffs cannot recover against the surety company for failure of principal to pay over moneys received from government.</p> <p>The defendant Paul was secretary and treasurer of Vermilye & Power, a domestic corporation engaged in selling merchandise to- the United States government. The defendant surety company executed a bond to the plaintiffs to continue for one year from its date. The material recitals therein and the conditions thereof are, that these plaintiffs, who are engaged in 'the business of loaning money on accounts, had authorized Paul to receive funds due them from the United States government and to pay them over to plaintiffs as they are received. The condition is that if Paul should account for and pay over to plaintiff all moneys received by him from the United States government on account of bills discounted by the plaintiffs for Vermilye & Power, then the obligation would be null and void; further, that the surety should be liable only in the event that Paul should commit an act of larceny or embezzlement of any of the said funds intrusted to his care. Within the year Vermilye & Power</p> <p>assigned to plaintiffs accounts for merchandise sold by it to the government to secure advances made to them by plaintiffs. On each assignment was an agreement signed by - Vermilye & .Power by Paul, in which it was provided: “ All remittances received by the assignor shall be received in trust for the Commercial Trust Company (the name under which plaintiffs traded) and the identical checks or moneys constituting such remittances shall be immediately turned over to Commercial Trust Company.” There is a balance remaining unpaid on the advances made by the plaintiffs on such assignments. It is claimed by them that Paul instead of turning over warrants received by him in accordance with the agreement has deposited them to the account of Vermilye & Power. This action is brought against the surety company to recover upon their bond. Held, that the assignment of the accounts mentioned is void under section 3477 of the United States Revised Statutes and does not vest the plaintiff with any right, legal or equitable, in the moneys paid by Paul to Vermilye & Power, and further, on examination of the evidence, that no separate or binding agreement was executed between the parties which entitles plaintiffs to recover. Hence, the plaintiffs have not shown a larceny or embezzlement by Paul within the meaning of the bond and that the plaintiffs have not and cannot sustain their complaint. (Manhattan Commercial Co. v. Paul, 216 N. Y. 481; Nat. Bank of Commerce v. Downie, 218 U. S. 345, followed.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The receivers did not assume the Florence iron ore contract. An equity-receiver has only such power as is conferred upon him by order of court; he has no power to assume contracts of the debtor defendant which extend beyond a reasonable period of his appointment. (Breed v. Glasgow Inv. Co., 92 Fed. Rep. 760; Stokes v. Hoffman House, 46 App.

<p>Appeal from a judgment, entered January 4, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a final judgment entered in favor of plaintiff on failure of defendants to plead over after rendition of an interlocutory judgment overruling their demurrers to the plaintiff’s complaint and dismissing said complaint, and also reversing a decretal order entered at the foot of said judgment appointing a trustee to convey certain property to plaintiff. The judgment thus reversed awarded to plaintiff various forms of equitable relief which will hereafter be referred to at length.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The history of the development of the Religious Corporations Law shows that the intent of the legislature has been since 1875 to deal with the church, parish or society and with its communicants as the essential unit constituting a church and merely provide for that unit conveniences of corporate form and administration. And in respect to the latter to provide a method by which, if the civil trustees fail in their trust, the record title can be assumed by the ecclesiastical governing body and the property managed and controlled for the original denominational purposes. (Robertson v. Bullions, 11 N. Y. 243; Petty v. Tooker, 21 N. Y. 267; F. R. P. Church v. Bowden, 10 Abb. [N. C.] 1; Isham v. Fullager, 14 Abb. [N. C.] 363; People ex rel. Peck v. Conley, 42 Hun, 98; Smith v. Nelson, 18 Vt. 511; Shannon v. Frost, 3 B. Mon. 253; Gibson v. Armstrong, 7 B. Mon. 481; Den v. Bolton, 7 Halst. [N. J.] 206; German Reformed Church v. Seibert, 3 Barr, 282; McGinnis v. Watson, 42 Penn. St. 1; Ferraria v. Vasconcelles, 23 Ill. 456; Watson v. Farris, 45 Mo. 183.)</p> <p>The claim of the right to substitute the Presbytery as a trustee in place of the Westminster Presbyterian Church Corporation cannot be upheld. (Const. N. Y. art. 1, § 6; Const. U. S. art. 14, § 1; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; People v. Johnson, 185 N. Y. 219; Stewart v. Palmer, 74 N. Y. 183.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff and the express messenger in the car were not under control of a common master. There is no evidence that they were. (Svenson v. Atlantic Mail, 57 N. Y. 108; Sanford v. Standard Oil Co., 118 N. Y. 571; Johnson v. Netherlands Am. Nav. Co., 132 N. Y. 576; Murray v. Dwight, 161 N. Y. 301; Sullivan v. Tioga R. R. Co., 112 N. Y. 643; Kane v. Mitchell Trans.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1915, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion. There is no obligation on the part of the owner of a liquor saloon to serve all persons.

The nature of the action and the facts', so far as material, are stated in the opinion. There can be no recovery by the plaintiffs when there is no evidence that, before the signing of the contract, fraud or misrepresentation induced them to sign it to their loss, or that after the signing of such contract it was materially changed in such manner as to increase or make the performance of such contract more burdensome.

<p>Crimes — bribery — contract— action to recover sum due on a contract — defense that plaintiff bribed employee of defendant to procure execution of the contract — when such defense cannot be sustained.</p> <p>Where plaintiff, in violation of section 439 of the Penal Law, agreed to give one of defendant’s employees a percentage on the moneys to be received under its contract with the defendant in consideration of Ms promise to aid in securing the execution of such a contract, and there is no evidence to indicate that the employee bribed by plaintiff had anytMng to do with the mating of the contract or that he influenced in any way the execution thereof, plaintiff’s right to recover on the contract is not forfeited.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There was no evidence of the part performance of a contract properly admitted upon which to base the finding of an alleged oral agreement. (Code Civ.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 30, 1917, which reversed an order of Special Term denying a motion to vacate and set aside two former orders fixing the fees of the petitioner.</p> <p>The facts, so far as material, are stated' in the opinion.</p> <p>The Supreme Court had jurisdiction. (L. 1909, ch. 35, §§ 474, 475; Matter of King, 168 N. Y. 53; Smith v. Acker Process Co., 120 App. Div. 170; Peri v. New York Central & H. R. R. R. Co., 152 N. Y. 521; Sullivan v. McCann, 125 App. Div. 126; Matter of Cartier v. Spooner, 118 App. Div. 342; Goodrich v. McDonald, 112 N. Y. 157.) It was not necessary that the infant children be separately represented, but they came into the proceeding on the second motion. (Lee v. Van Voorhis, 78 Hun, 575; 145 N. Y. 603; Rice v. Postal Tel. Co., 174 App. Div. 39; Matter of Brennan, 160 App. Div. 401.)</p> <p>The Supreme Court was without jurisdiction. (Cunningham v. City of New York, 141 N. Y. Supp. 1000; Matter of Meng, 159 N. Y. Supp. 535.) The Suffolk County Trust Company, as guardian of the property of the infant children, was a necessary party to any proceeding seeking to dispose of the proceeds of the action. (Matter of Brennan, 160 App. Div. 401.)</p> <p>The attorney acquired an enforcible lien which ’ attached to the judgment. (L. 1909, ch. 35, § 475; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Hegerich v. Keddie, 99 N. Y. 258; Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145; Kelliher v. N. Y. C. & H. R. R. R. Co., 212 N. Y. 207; Lee v. Van Voorhis, 145 N. Y. 603.) The Supreme Court having acquired jurisdiction to determine and enforce a lien on its judgment by order to show cause on June 11, 1917, followed by its order of June 14, 1917, amended by order of August 6, 1917, that jurisdiction could not be divested by the action of the Surrogate’s Court upon the petition of July 9, 1917, for the distribution of the fund after the payment of the lien and its order of July 14, 1917. (Matter of Lee, 220 N. Y. 532; Scheuhle v. Riemon, 86 N. Y. 270.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 18, 1917, unanimously 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.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 29, 1917, which affirmed an order of Special Term denying a motion for an order directing payment of additional interest on an award in street closing proceedings. The facts, so far as material, are stated in the opinion.

<p>Equity — evidence — pleading — action to rescind exchange of bonds and for return of bonds transferred by plaintiff to defendant on ground that exchange was procured through misrepresentation of material facts;— fraud and deceit need not be proved, although alleged, if misrepresentations influenced the exchange— adequate remedy at law must be pleaded as a defense and cannot be raised by motion to dismiss.</p> <p>1. An action may be maintained in equity to rescind a transaction which has been consummated through misrepresentation of material facts not amounting to fraud. Unlike an action at law for damages, intentional misstatements need not be proved.</p> <p>2. The fact that the plaintiffs have alleged fraud and deceit is not fatal to the action, provided the proof established misrepresentations and that these are material, influencing the bargain, since equity will administer such relief as the exigencies of the case demand at the close of the trial.</p> <p>3. Where a complaint alleges causes of action in equity and the proof establishes facts which justify equitable relief, an adequate remedy at law cannot be urged as a defense unless pleaded. Such objection cannot be raised for the first time on motions to dismiss.</p> <p>4. Where, in an action in equity to rescind an exchange of traction bonds for irrigation bonds and have the traction bonds returned to the plaintiff, the complaint alleges that the exchange was effected by false representations knowingly and fraudulently made in the prospectus and by defendant’s agents regarding the irrigation bonds, and the findings made by the trial court, unanimously approved by the Appellate Division, justify the conclusion that the plaintiffs had been led into an exchange of their traction bonds through false and misleading representations which were material, but that there was no actual fraud or intent to deceive, and that they were entitled to have the deal rescinded and their bonds returned, it is not ground for reversal that the plaintiff had failed to make out the cause of action pleaded, for the reason that he had alleged fraud and was bound to prove it and, therefore, could not recover in equity by showing merely false representations.</p> <p>5. The fact that plaintiff cashed coupons of the irrigation bonds and held the proceeds for defendants’ benefit is not so inconsistent with plaintiff’s claim for rescission as to amount to an affirmance of the exchange. If the defendants desired to rely upon the cashing of an interest coupon as a waiver or ratification by plaintiff it-should have been pleaded.</p>

Division, of the Supreme Court in the third judicial department, entered November 19, 1917, 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 decedent was not engaged in a hazardous employment at the time of his injury within the meaning of the Workmen’s Compensation Law.

The facts, so far as material, are stated in the opinion. The so-called Newton law contravenes article 3, section 1 of the Constitution of the state of New York, providing that the legislative power of this state shall be vested in the senate and assembly. (Matter of Lyman, 160 N. Y. 96; People v. Klinck Packing Co., 214 N. Y. 121; Cooley’s Const.

The nature of the action and the facts, so far as material, are stated in the opinion The assessment in question did not become a lien, charge or incumbrance until after the delivery of the deed. (Real Estate Corporation v. Harper, 174 N. Y. 123.) At the time of the conveyance the premises were incumbered by an assessment.

The nature of the action and the facts, so far as material, and stated in the opinion. Upon the transfer and delivery by Whiting to Glass of his stock of groceries and fixtures as part of the purchase price a lien on the farm resulted in his favor for the . agreed price and value thereof. (McWhorter v. Stewart, 39 App. Div. 212; Kline v. Sachs, 102 App. Div. 44; O. R. Co. v. Palmer, 117 App.

<p>Warranty — ice cream — action for damages for injuries resulting from consumption by plaintiff of unwholesome and poisonous ice cream sold by the proprietor of a drug store — such cream impliedly warranted to be wholesome and fit to eat.</p> <p>1. The general rule established by the weight of authority in the United States and England is that accompanying all sales by a retail dealer of articles of food for immediate use there is an implied warranty that the same is fit for human consumption.</p> <p>2. In an action brought to recover damages for personal injuries alleged to have resulted from the consumption by plaintiff of unwholesome and poisonous ice cream sold him by the proprietor of a drug store, the court properly instructed the jury that when defendant sold the cream to plaintiff he impliedly warranted it was wholesome and fit to eat.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. In so far as the Beakes Dairy Company is concerned, the milk gathering statute can be sustained as an exercise of the reserved power of the state to amend the corporate charter of one of its own corporations. (N. Y. C. R. R. Co. v. Williams, 199 N. Y. 108; Jeffrey Mfg.

The nature of the action. and the facts, so far as material, are stated in the opinion. There was no evidence of negligence on the part of defendant. (Robinson v. Gas Co., 134 N. Y. 37; Lafflin v. B. & S. R. R. Co., 106 N. Y. 136.) There was ample evidence in this case to require the-submission of the question of the defendant’s negligence to the jury.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendants failed to prove that plaintiff was guilty of contributory negligence as matter of law. This was purely a question of fact to be decided by the jury, and the judgment should not have been reversed, nor the complaint dismissed, on this ground. (Sharp v. Erie R. R. Co., 184 N. Y. 100; Sigel v. Am. Seating Co., 161 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Held: as matter of law, that the “ dancing pavilion ” was such a “ place of pubhc accommodation, resort and amusement ” as is contemplated by the statute under which this action is brought, and submitted to the jury the question whether or not the plaintiff was excluded and deprived of. the privilege of dancing there because of his color.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 11, 1915, modifying and affirming as modified a judgment in favor .of plaintiff entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Evideínce—Presumption of fact—Constitutional law—The statute (Penal Law, .§ 442) creating a presumption of fact against a defendant CHARGED WITH THE CRIME OF OBTAINING PROPERTY BY MEANS OF A FALSE STATEMENT OF HIS ABILITY TO PAY, DOES NOT VIOLATE ANY CONSTITUTIONAL PROVISION.</p> <p>1. The power of the Legislature to change rules- of evidence as they existed at the common law and to limit, change and vary existing rules for the limitation of actions has been uniformly held- not to he affected' or restricted by the constitutional limitation prohibiting the taking of .life, liberty or property without due process of law.</p> <p>2. Numerous statutes have been enacted providing that proof of one Tact shall be prima facie evidence of the main fact in issue; and where the inference is not purely arbitrary and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law.</p> <p>3. The relators were held upon a warrant issued out of the Magistrate’s Court in the city of New York charging them with the crime of grand larceny by false pretenses under sections 442 and1 947 of the Penal Law, Pending the hearing before the magistrate, a writ of habeas corpus was sued out to obtain the prisoner’s "discharge upon the ground that no crime was set forth in the information. Section 442 of- the Penal Law provides that whenever property shall he purchased by aid of ,a statement relating to the purchaser’s means or ability to pay, made in writing and signed by the party to he charged, and in said1 statement -the party to be charged shall s-tate that he conducts a specified kind of business and keeps books of account of said business, if he fails to pay for the property he may he required to produce his- books for examination by the person from whom he obtained -the credit, and' failure to -so produce</p> <p>shall be presumptive evidence that each and every pretense relating to the purchaser’s means or ability to pay in said statement contained were false at the time of making said statement and were known to the purchaser to be false.” Held, that this statute does not violate any constitutional provision. (Bailey v. Alabama, 219 U. S. 219, distinguished; People v. Gibson, 218 N. Y. 70, distinguished and limited.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 27, 1915, 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>The plaintiff had a vested right in the contract which the defendant could not impair or alter without his consent. The levy of the extraordinary assessment was an impairment of the plaintiff’s contract. (Wright v. Maccabees, 196 N. Y. 391; Langan v. Legion of Honor, 174 N. Y. 266; Beach v. Maccabees, 171 N. Y. 100; Evans v. Southern Tier, 182 N. Y. 453; Dowdall v. C. M. B. A., 196 N. Y. 405; Boswell v. S. L. Ins. Co., 193 N. Y. 465; Kent v. Q. S. Mining Co., 78 N. Y. 158; Charman v. Knights Templar, 187 U. S. 197; Black v. Legion of Honor, 120 Fed. Rep. 580; Getz v. Legion of Honor, 109 Fed. Rep. 261.) The defendant having come to New York state and made the contract here is bound by the laws of the state of New York. (McClement v. Order of Foresters, 169 App. Div. 77; Morgan v. Mutual Benefit Life Ins. Co., 189 N. Y. 447; People v. Formosa, 131 N. Y. 478; Boswell v. S. M. L. Ins. Co., 193 N. Y. 475; Milnor v. N. Y. & N. H. R. R. Co., 53 N. Y. 363; Dickinson v. Edwards, 77 N. Y. 573; Vanderbeck v. Protected Home Circle, 98 Misc. Rep. 691; Stumpf v. Hallahan, 101 App. Div. 383; 185 N. Y. 50.)</p> <p>The regulation and control of the government of internal affairs and the manner of the exercise of the powers thereof of a corporation which is the creature of and derives its authority from the law of another sovereignty, rests with that sovereignty solely and may' not be interfered with by the courts of a state in which the corporation does business or may be found. (Royal Arcanum v. Green, 237 U. S. 531; Supreme Lodge v. Hines, 82 Conn. 315; Supreme Colony v. Towne, 87 Conn. 644; Palmer v. Welch, 132 Ill. 141; Grimme v. Grimme, 198 Ill. 265; American Legion of Honor v. Green, 71 Md. 263; Royal Arcanum v. Brashears, 89 Md. 624; Golden Cross v; Merrick, 165 Mass. 421; Gibson v. United Friends, 168 Mass. 391; Larkin v. Knights of Columbus, 188 Mass. 22; Supreme Lodge v. Nairn, 60 Mich. 44; Tepper v. Royal Arcanum, 59 N. J. Eq. 321; 61 N. J. Eq. 638; Bockover v. Life Association, 77 Va. 85.) The right to change rates was reserved by legislative authority. (Lord v. E. L. Assur. Society, 194 N. Y. 212; Matter of Lee Bank, 21 N. Y. 9; Sherman v. Smith, 1 Black, 587; Gardner v. Hope Ins. Co., 9 R. I. 194; Bissell v. Heath, 98 Mich. 472.) Except in so far as a state does impose terms, conditions and restrictions upon the transaction of business within it by a corporation of another state a corporation of the latter state may exercise in the former state all of its powers. (Merrick v. Van Santvoord, 34 N. Y. 208; Demarest v. Flack, 128 N. Y. 205.) The act of Parliament is a part of the contract which it made with the plaintiff and that contract should be enforced in all its parts. (Matter of Globe M. B. Assn., 63 Hun, 263; Bacon on Benefit Societies, etc., 201, § 161; Sabin v. Finney, 134 N. Y. 428; Shipman v. P. H. Circle, 173 N. Y. 398; Hammond v. Knox, 125 App. Div. 9; Ebent v. M. R. F. Life Assn., 83 N. W. Rep. 506; Massey v. Mutual Relief Society, 102 N. Y. 523; Silvers v. Benefit Association, 94 Mich. 39; Kaemmer v. Kaemmer, 231 Ill. 154; Knights of Honor v. Nairn, 60 Mich. 44; Gaines v. Royal Arcanum, 140 Fed. Rep. 978.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The maxim res vpsa loquitur is not applicable to an explosion which might have been caused either by a defect in the boiler or by plaintiff’s improper management of it. (Francey v. Rutland R. R. Co., 167 App.

<p>Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 22, 1915, affirming a judgment in favor of defendant entered upon the report of a referee.</p> <p>The nature of the action and' the facts, so far as material, are stated in the opinion.</p> <p>The referee erred in his conclusion of law that the meaning of the words “ paid subscribers,” as used in the definition of the term “ circulation ” in the contracts, was not limited to subscribers who had paid for their 1911 or 1912 subscriptions either in advance or during the year covered by each contract respectively, and, therefore, erred in holding that the circulation of the magazine to paid subscribers was not less than 63,000 copies, as guaranteed by the contracts. (Waters v. Creagh, 4 S. & P. 410; Starr v. Delaware Co., 40 Ind. App. 70.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 9, 1918, which affirmed an order of Special Term denying an application for an order restraining the board of elections of the city of New York from holding a special election in the seventh congressional district, as fixed by chapter 797, of the Laws of 1917, to fill the vacancy therein existing and for a peremptory writ of mandamus…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 15, 1917, which modified and affirmed as modified a decree of the New York County Surrogate’s Court settling the accounts of the' executors and trustees under the will of Frederick Schaefer, deceased. Decedent died in 1897.

Plaintiff was in the service of the defendants as a magazine keeper on subway construction work being prosecuted by the defendants along Lexington avenue in Manhattan, New York city. One of the duties assigned to him in this work by the defendants’ head blaster was to test certain exploders or fuses by means of a testing machine. The work was of a dangerous character; and while he was engaged in it one of the fuses exploded, inflicting the inj uries complained of.

The defendant moved to dismiss the indictment on the ground that the crime charged in the indictment was alleged to have been committed on the 17th day of October, 1915, an impossible date, the same being in the future. Defendant also demurred to the indictment on the ground that it did not state facts sufficient to constitute a crime.

This action was brought by plaintiff under the Employers’ Liability Act against the defendant to recover damages for personal injuries sustained by the plaintiff while he claimed that he was in defendant’s employ.

The plaintiff was working with a “ muck gang ” in removing material blasted by drillers from the head of a tunnel undergoing construction at Lexington avenue and Fifty-sixth street, New York. While assisting in lifting stones from the floor of the tunnel' into a box resting on a car, which stones had been blasted the previous day, he was struck by rocks giving way and falling from the westerly side of the tunnel, receiving the injuries complained of.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 22, 1917, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term 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 the defendants.

This action was brought by the plaintiff, a national bank, against the defendants, a firm of stockbrokers, to recover moneys and the proceeds of stocks embezzled by one Beavers, the cashier of the bank, and paid or delivered by him to the defendants in connection with his personal stock speculations. The case was tried upon the theory that the defendants received these moneys with actual notice that they belonged to the bank.

The Waterloo Organ Company was engaged in the manufacturing business in the village of Waterloo, and defendant’s intestate was in the banking business at Waterloo and was interested in the organ company business. The organ company had to borrow considerable sums of money, and the plaintiff discounted its paper obligations and aided it in various ways.

The complaint alleged that the plaintiff was the owner of and was pasturing several horses in a lot situated and adjoining the highway between Geneseo, N. Y., and Piffard, N. Y.; that the horses escaped from the lot into the highway, ran along the highway to a road leading to the residence of one Jessie B. Wads-worth and passed through the entrance to the grounds surrounding the said residence.

The action was brought to recover the amount to the credit of a savings bank account standing in the name of plaintiff. The defense was that the Banking Law and the by-laws of the defendant, subject to which the account was opened, required the presentation of the pass book and that this was not done. The plaintiff alleged in his complaint that the pass book was unlawfully taken from his possession and that he had been unable to procure or recover possession of the same.

The action was brought to recover damages for personal injuries, consisting in the loss of the plaintiff’s right arm, caused by its being caught between a- revolving pulley and a moving belt on a coke barge belonging to the defendant, while the plaintiff was in-its employment.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 22,1917, which affirmed an order of Special Term deciding that chapter 444 of the Laws of 1914 and chapter 530 of the Laws of 1916 were unconstitutional and void, and directing the issuance of a peremptory writ of mandamus to the defendants requiring them to do all acts and things necessary to have the names of any and all candidates for city offices provided for by chapter 300 of the Laws of 1904, as amended, who might be nominated to such offices by independent certificates pursuant to the provisions of the Election Law, submitted to the electors of the city of Niagara Falls at the general election to be held on the 6th day of November, 1917.</p>

Upon appeal defendant contended that the seizure of the book, papers, cards, etc., taken from the defendant’s living apartments, without a search warrant, and the introduction of the same in evidence, over the objection of the defendant, violated section 8 of article 2 of the Civil Rights Law, known as the Bill of Rights of this state, and section 6 of article 1 of the State Constitution.

This action was brought to set aside two assignments, one made by Paul Orth, and the other by Carl Orth, father of the plaintiffs, Carl R. A. Orth and Louisa A. Seufferheld, wherein and whereby they assigned to the defendants Max B. Kaesche and Frank H. Wasel, as executors under the last will and testament of Alfred Orth, deceased, certain sums of money out of their share of the estate of Alfred Orth, deceased, to be paid to the defendants Gertrude Miethe and Catharina Wasel.

The plaintiff was a material-man and the first lienor to file his notice of lien. The defendants, appellants, were owners of the real property improved. The defendant Steel Storage and Elevator Construction Company was the general contractor. The defendant Empire Limestone Company was a material-man that filed a lien, having sold and delivered materials to the contractor. Other defendants also filed liens.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 30, 1917, which reversed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of willfully and without authority taking letters and private papers belonging to another and copies thereof, and publishing the same in violation of section 553 of the Penal Law.</p>

<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 defendant entered upon a dismissal of the complaint' by the court at a Trial Term and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through defendant’s negligence in caus ng or suffering plaintiff, when boarding one of défendant s subway trains, at the Fourteenth street station, in the city of New York, on the 11th of October, 1912, to step into the open space or cavity between the side door of the south-bound express car, at which she was entering, and the concave curve of the station platform at that point, and fall down and hurt herself. The answer was a general denial and plea of contributory negligence.</p>

Plaintiff alleged negligence on the part of the defendant as the sole cause of said collision. Defendant admitted the collision but denied negligence on its part and alleged contributory negligence on the part of plaintiff’s chauffeur.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an act on in ejectment to recover the possession of premises in West Twenty-third street, borough of Manhattan, New York, upon which is erected a church known as the Westminster Presbyterian Church of West Twenty-third Street and a rectory…

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered August 7, 1917, modifying and affirming as modified an order of Special Term confirming the report of a referee appointed under section 623 of the Code of Civil Procedure to ascertain and determine the damages sustained by defendants by reason of an injunction ‘pendente lite theretofore granted in an action to determine the validity of an agreement to retire three and one-half per cent Lake Shore collateral bonds by the issue of four per cent bonds as a consideration for the holders consenting to the consolidation of the New York Central and Hudson River Railroad Company and the Lake Shore and Michigan Southern Railway Company and nine other railroad companies. (See 217 N. Y. 119.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 18¡ 1917, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law. An employee of appellant Edsall was killed in the course of his employment but left him surviving no wife or child or children, and no person dependent upon him.

' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 25, 1915, modifying and affirming as modified a judgment in favor of defendant, appellant, entered upon a decision of the court on trial at Special Term.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 18, 1918, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus directing the inspectors of election of the third election district of the third ward of the city of Mount Vernon to correct their return or statement of the canvass of the votes of the soldiers, sailors and marines made by them on the 18th…

By a supplemental official return as to the soldiers’ and sailors’ ballots canvassed in the third election district of the third ward of the city of Mount Vernon, made by the inspectors of election thereof, pursuant to an order of the Special Term, it was made to appear that all of said ballots were protested.

By a supplemental official return as to the soldiers and sailors’' ballots canvassed in the third election district of the third ward of the city of Mount Vernon, made by the inspectors of election thereof, pursuant to an order of the Special Term, it was made to appear that all of said ballots were protested.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 18, 1918, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel defendant inspectors of election to correct their return or statement of canvass of the votes of soldiers and sailors originally canvassed by them in the first election district of the third ward of the city of Mount Vernon on the…

Fiske for mayor of two votes, the one known as the “ superintendent of the poor ” vote and the other known as the “ city chamberlain ” vote, and confirmed the original canvass of the McCarthy vote by denying the application of the candidate Brush for a writ of mandamus as to said ballot.

<p>Appeal — libel — appeal from unanimous affirmance will not lie unless permission to appeal has been obtained.</p> <p>Where a judgment based on the verdict of a jury in an action for libel has been unanimously affirmed by the Appellate Division, an appeal to the Court of Appeals, taken prior to June 1, 1917, will not lie unless upon compliance with subdivision 2 of section 191 of the Code of Civil Procedure as it then stood.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial .department, entered November 23, 1914, affirming a judgment of the Cayuga. County Court which affirmed a judgment of the City Court of Auburn in favor of defendant in an action to recover money alleged to be due under a contract.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1915, which affirmed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a motion for a new trial in an action brought to recover damages for personal injuries, alleged to have been sustained by the plaintiff, by his wife, and by his children by reason of gases which it was claimed came into the plaintiff's apartments through the fault or neglect of the defendant.</p>

The Appellate Division held: “ In the form in which this action was brought, it was for compensation under a contract for services and on that ground we affirmed the order of reference against the… Held: “ In the form in which this action was brought, it was for compensation under a contract for services and on that ground we affirmed the order of reference against the defendant’s insistence that it was entitled to a trial by jury (153 App. Div. 906).

The issue in this case was whether or not plaintiff’s title to the premises, sought to be conveyed, was good as to the undivided one-quarter part thereof which comes through Arthur W. Palmer, an incompetent. Defendant by her answer and upon the trial claimed that plaintiff’s title to such one-quarter was bad because, as she alleged: 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 20, 1915, which affirmed an order of Special Term denying a motion for an alternative writ of mandamus, directed to the respondents, Republican members of the board of supervisors of the county of Chemung, requiring them to perform their official duty in designating a Republican newspaper published in that county, in which to publish the Session Laws, etc., as required by sections 20 and 22 of the County Law.</p>

The complaint alleged that plaintiff, a drill runner, while working in the construction of the Lexington Avenue subway in New York city was directed by his foreman to get upon a large rock that had been dislodged by a blast and to drill holes therein; that while so engaged the rock split and rolled over and plaintiff received the injuries complained of. Defendant contended that no negligence on its part was proved.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial . department, entered February 9, 1918, which affirmed an order of Special Term denying a motion for an order restraining the defendants from conducting an election in the eighth congressional district as fixed by chapter 797 of the Laws of 1917, to fill the vacancy caused by the resignation of Daniel J. Griffin, and for a peremptory writ of mandamus directing them to…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 9, 1918, which affirmed an order of Special Term denying upon the merits, and as a matter of law, an application for a peremptory writ of mandamus directing the board of elections of the city of New York to hold special elections for members of Congress of the United States in the twenty-first and the twenty-second congressional districts…