Volume 223 — New York Reports

' Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 2, 1917, which reversed an order of the New York County Surrogate’s Court- assessing a transfer tax upon the estate of Charles E. Orvis, deceased, and amended the appraiser’s report by adding to the amount reported taxable the sum of $443,342.11. 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 court erred in its charge that defendant was guilty of an assault as matter of law. (Commonwealth v. Power, 7 Metc. 596; Peck v. N. Y. C. & H. R. R. R. Co., 70 N. Y. 587; Bell v. N. Y. & Q. County Ry. Co., 96 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1915, affirming a judgment in favor of plaintiff entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant, his employer.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>Under section 64 of the Eailroad Law proof of the leak in the brake was sufficient prima facie to establish defendant’s negligence without evidence that it was discoverable by inspection. The Appellate Division’s decision that plaintiff was required to prove further that the leak was so discoverable is repugnant to the plain and emphatic provisions of the act and calculated to defeat its purpose. (Cons. Laws, ch. 49, § 64; Scott v. International Paper Co., 204 N. Y. 49; Kelliher v. Brown & Co., 242 Penn. St. 499.)</p> <p>There is no evidence of the existence of any “ defect ” in the braking mechanism of the car within the meaning of section 64 of the Railroad Law. (Cons. Laws, ch. 49, § 64.) Plaintiff assumed the risks incident to the use of the defective brake, if it was defective as he claims. (O’Neil v. Karr, 115 App. Div. 881; 190 N. Y. 509; Bushtis v. Catskill Cement Co., 128 App. Div. 780; 198 N. Y. 548; Collelli v. Turner, 154 App. Div. 218; 215 N. Y. 675; Curran v. Man. R. Co., 118 App. Div. 347; Keating v. Coon, 102 App. Div. 112; Anderson v. Milliken, 123 App. Div. 614; 194 N. Y. 521; Knisley v. Pratt, 148 N. Y. 372; Maltbie v. Belden, 167 N. Y. 307; Crown v. Orr, 140 N. Y. 541; Dowd v. N. Y., Ont. & Western R. R., 170 N. Y. 459; Dixon v. N. Y., Ont. & Western R. R., 198 N. Y. 58; Scott v. D., L. & W. R. R. Co., 136 App. Div. 347; 148 App. Div. 697; Gorman v. Milliken, 142 App. Div. 207; Reinertsen v. Erie R. R. Co., 142 App. Div. 31; 205 N. Y. 541.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was in duty bound to transfer to the Delaware, Lackawanna and Western railroad yards car M. D. T. 11,023 within a reasonable time after it had received notice from the plaintiff to do so, and if any unreasonable and unnecessary delay occurred in the transfer of said; car the defendant' is liable for the immediate and proximate damage resulting from such neglect of duty.

The nature of the action and the facts, so far as material, are stated in the opinion. There was sufficient evidence to go to the jury on the question of the making and breaching of the oral contract set forth in the first cause of action, and the verdict of the jury in respect thereof should stand. (Grossman v. Schenker, 206 N. Y. 466; Geringer v. Friedman, 80 N. Y. 212; Sagolowitz v. Pellman, 32 Misc.

<p>Contract — express companies — damages for breach of contract confined to those naturally and directly arising from the breach — action against express company for delay in transportation of moving picture films — express company not liable for loss caused by its failure to deliver films to be shown on a holiday unless company was informed of circumstances and probable special loss if films should not be delivered in time.</p> <p>1. In order to impose on a defaulting party a further liability than for damages naturally and directly, i. e., in the ordinary course of things, arising from a breach of contract, such unusual and extraordinary damages must have been brought within the contemplation of the parties as the probable result of a breach at the time of or prior to contracting.</p> <p>2. This action was brought to recover damages for unreasonable delay in the transportation of moving picture films which were delivered to the defendant express company for shipment. There was evidence from which the jury could find as it did that there was unreasonable delay in the delivery of the films and plaintifi has been allowed to recover as damages the receipts or profits which it is claimed he would have realized from the exhibition of said films if they had been delivered with reasonable promptness, through the attendance at his theatre at a certain rate of admission of many people who stayed away or paid a lower rate of admission because said pictures were not exhibited. The evidence also shows that at the time of shipment the defendant knew that the package contained films which were to be exhibited and that in general terms he was notified that transportation was to be “ rushed ” because they were to be exhibited. There was, however, no notice express or implied that plaintifi was to be the exhibitor; that he owned a theatre for which exhibition of said films on an important holiday like Christmas had been specially advertised; that the films possessed such particular attractiveness for the public that they could not be readily replaced and that on failure by defendant to deliver them by a certain day it would be necessary to close the theatre or supply their place with less attractive and less profitable ones. Held, that the notice was not enough to lay the basis for the recovery. Before defendant could be held to special damages such as the present alleged loss of profits on account of delay or failure of delivery it must have appeared that he had notice at the time of delivery to him of the particular circumstances attending the shipment and which probably would lead to such special loss if he defaulted. (Hadley v. Baxendale, 9 Exeh. 341, followed.)</p>

<p>Comptroller — Court of Claims — when no appropriation has been made for salary of state official comptroller’s refusal to audit a payroll therefor is right — Court of Claims has jurisdiction to hear and determine claim for such salary.</p> <p>1. Where no appropriation was made for the payment of the salary of a member of a State commission, the comptroller properly refused to audit a payroll covering such period for the reason that no appropriation applicable thereto had been made. (State Finance Law; Cons. Laws, ch. 56, § 36.)</p> <p>2. While the Court of Claims “ has no. jurisdiction of a claim submitted by law to any other tribunal or officer for audit or determination except where the claim is founded upon express contract and such claim, or some part thereof, has been rejected by such tribunal or officer ” (Code Civ. Pro. § 264), this is not such a claim. The comptroller did not audit the claim and reject it, but refused to hear it because no money had been appropriated to pay it. The Court of Claims was open to this claimant and its determination was based on facts adequate to sustain the award.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 14, 1917, modifying and affirming as modified a judgment in favor of plaintiff entered upon an award of the Court of Claims. The facts, so far as material, are stated in the opinion. Defendant’s claim that a loektender is not a workman or laborer, under the statute, cannot be sustained. (Clark v. State, 142 N. Y. 101; McCammon v. State, 12 Ct. Cl.

<p>Appeal from a judgment, entered August 6, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiff entered upon a verdict and directing 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 foreman should have adopted some precaution by removing the piece of iron to a place of safety or laying it down. When the master directs the performance of work by his servant at a place which may become dangerous, and which danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect the servant. (McGovern v. C. V. R. R. Co., 123 N. Y. 280; Laning v. N. Y. C. R. R. Co., 49 N. Y. 521; Corcoran v. Holbrook, 59 N. Y. 517.) Whether or not the plaintiff assumed the risk of the danger resulting in his injuries is a question of fact for the jury. (Pepe v. Utica Pipe Foundry Co., 132 App. Div. 462; Pelow v. Oswego Const. Co., 162 App. Div. 841; Griffith v. Amer. Bridge Co., 163 App. Div. 599.)</p> <p>There was no proof that the express company or its foreman was guilty of any negligence or neglect of duty. (Maul v. Erie R. R. Co., 198 N. Y. 221; Scott v. D., L. & W. R. R. Co., 136 App. Div. 347; 148 App. Div. 697; Mattson v. Phoenix Construction Co., 135 App. Div. 234; Fresusk v. Pittsburgh Contracting Co., 159 App. Div. 356, 358; Mullin v. Genesee Co. El. L., P. & Gas Co., 202 N. Y. 275; Citrone v. O’Rourke Engineering Constr. Co., 188 N. Y. 339; Kearney v. Hanlien, 149 App. Div. 524; La Marca v. Atlantic Stevedoring Co., 164 App. Div. 490; Fogarty v. New York Dock Co., 157 App. Div. 924.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. By the express language of the option the plaintiff is entitled to the conveyance requested, without making proof that the land chosen is reasonably necessary for a reservoir site. When a valid option to purchase real property is accepted the obligations and remedies of the parties become mutual so as to make specific performance a proper remedy. (Jones v. Burns, 105 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The measure of damages adopted, viz., expected profits, was erroneous. (Witherbee v. Meyer, 155 N. Y. 446; 8 Am. & Eng. Ency. of Law [2d ed.], 627; 1 Sedg. on Dam. [9th ed.] 183, 197; Central Coal & Coke Co. v. Hartman, 111 Fed.

<p>Appeal from a judgment, entered December 2, 1914, upon an order of the Appellate Division of the Supreme Court in the first judicial department, dismissing an appeal from a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far .as material, are stated in the opinion.</p> <p>The plaintiff has the right to appeal to this court from the judgment entered upon the order of the Appellate Division dismissing its appeal. (Stevens v. Central Nat. Bank, 162 N. Y. 253.) The order of the Appellate Division dismissing plaintiff’s appeal was unwarranted. (O. & L. C. R. R. Co. v. V. & C. R. R. Co., 63 N. Y. 76; Higlie v. Westlake, 14 N. Y. 281; Monnet v. Merz, 17 N. Y. Supp. 380; 131 N. Y. 646; Curran v. Houston, 201 Ill. 442; Van Vlissingen v. Lenz, 171 Ill. 162; American L. & T. Co. v. Union Depot, 80 Fed. Rep. 36; Parker v. Oliver, 106 Ala. 549; Bergman v. Fortesque, 74 N. J. Eq. 266; N. W. M. L. Ins. Co. v. Butler, 57 Neb. 198; Malcolm v. Allen, 49 N. Y. 448.)</p> <p>The dismissal of the appeal by the Appellate Division was not a final judgment and not appealable. (Van Ardsdale v. King, 155 N. Y. 325; Harrington v. Holler, 111 U. S. 796; Wenar v. Jones, 217 U. S. 593.) The Appellate Division properly dismissed the appeal. (People ex rel. Geer v. Common Council of Troy, 82 N. Y. 575; Delevan v. N. Y., N. H. & H. R. R. Co., 216 N. Y. 35; Matter of Strauss, 157 N. Y. 720; People v. Clark, 70 N. Y. 518; Matter of Croker v. Sturgis, 175 N. Y. 158; Matter of Schlucter, 47 App. Div. 621; Jones v. Montague, 194 U. S. 147.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Suits by those beneficially interested in the estate of a decedent for relief, “ in special circumstances,” against a debtor of the estate, decedent’s personal representative being made a party defendant, are of established equity jurisdiction. (Long v. Majestre, 1 Johns.

<p>Workmen’s Compensation Law — injury to contractor after completion of his contract and while employed at day’s labor in helping install machinery in a paper mill — claimant entitled to an award as an employee of an employer engaged in a hazardous" occupation.</p> <p>Where claimant, who had contracted to move an engine from a railroad station to a paper mill, remained, after his contract had been completed, at the request of the officers of the paper mill company, to assist in the work of installing the engine under the direction of an engineer sent by the manufacturers of the engine to superintend its installation, claimant’s services to be paid for by day’s labor, he was an employee — although temporary — of the company which was engaged in a hazardous business under the statute (Workmen’s Compensation Law, Cons. Laws, eh. 67, § 2, group 15), and, hence, claimant is entitled to an award for permanent injuries received while engaged in such employment. The fact that he brought two of Ms own men with Mm for whose services the company.paid is immaterial, since he did not undertake, or contract, to accomplish a specific job in his own way but undertook, oMy, to help and obey. (Matter of Bargey v. Massaro Macaroni Co., 218 N. Y. 410, distinguished; Matter of Larsen v. Paine Drug Co., 218 N. Y. 252, followed.) .</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second- judicial department, entered July 31, 1917, which affirmed an order of Special Term sustaining a writ of certiorari and directing reduction of an assessment for taxation levied against property of the relator. The facts, so far as material, are stated in the opinion.

<p>Liquor Tax Law — reduction of -liquor tax certificates to one for each five hundred of population—determination of commission appointed to reduce and apportion the places "where liquor may be sold is final and conclusive when- fairly made and cannot be ignored by excise commissioner.</p> <p>An amendment of the Liquor Tax Law in 1917 provides for the reduction of the number of liquor tax certificates in certain cities and in towns (L. 1917, ch. 623). The number is to be so reduced that there shall be not more than one certificate for each five hundred of population (§ 8, subd. 9). To that end the town board of each town is to appoint a commission of three residents and taxpayers. The commission in making its" determination was directed where a town contained two or more villages to reduce the number of places in each of such villages and in the outlying territory of the town, “ as nearly as may be in proportion to the number of places where trafficking in liquors was engaged in at the time of the investigation.” The determination of the commission is to be “ final and conclusive.” Held, that this imports some range of judgment and discretion. In determining how the departure may be made with a minimum of hardship, the commission may consider the density of population, the character of the licensed places, the habits of the community and other local conditions. There must be no substantial deviation from the statutory norm, but minor variations, inevitable in some degree, do not nullify the allotment.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 19, 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>There is no evidence supporting the findings of the commission that the hernia was an accidental injury, and the award should be reversed as error of law. (Fowler v. Risedorph Bottling Co., 175 App. Div. 224; M. A. Assn. v. Barry, 131 U. S. 100; Fenton v. Thorley, 5 B. W. C. C. 1; Moore v. L. V. R. R. Co., 169 App. Div. 177; Kutschmar v. Briggs Mfg. Co., 163 N. W. Rep. 933; Zappala v. Industrial Ins. Com., 82 Wash. 314; Pyper v. Manchester Lines, 9 B. W. C. C. 580; Kerr v. Ritchies, 6 B. W. C. C. 419; Hugo v. Larkins, 3 B. W. C. C. 228; Hawkins v. Powells Tillery Steam Coal Co., 4 B. W. C. C. 178; Coe v. Fife Coal Co., 46 Scot. L. R. 328; O’Hara v. Hayes, 3 B. W. C. C. 586; Black v. New Zealand Shipping Co., 6 B. W. C. C. 720.)</p> <p>The evidence shows that there was an accident in the course of claimant’s employment. (U. S. M. A. Ins. Assn. v. Barry, 131 U. S. 100; Martin v. Travelers Ins. Co., 1 F. & F. 503; N. A. L. & A. Ins. Co. v. Burroughs, 69 Penn. St. 43; Clayton & Co. v. Hughes, 3 B. W. C. C. 275; Zappala v. Industrial Ins. Comm., 82 Wash. 314; Pocardi v. P. S. Comm., 84 S. E. Rep. 242; Robbins v. Gas Engine Co., 157 N. W. Rep. 437; Bell v. Hayes-Ionia Co., 158 N. W. Rep. 179; Hurley v. S. B. Const. Co., 159 N. W. Rep. 311; Hackford v. Veeder & Brown, 176 App. Div. 924; Uhl v. Guarantee Construction Co., 174 App. Div. 571; Fowler v. Risedorph Bottling Co., 175 App. Div. 224.)</p>

<p>Banks and banking—directors — duties and liabilities of directors of financial institutions — neglect of director to discover and prevent mismanagement and fraudulent transactions by officers of a trust company — action against such director to recover for losses permitted by his neglect — erroneous refusal of trial court to make findings as to director’s negligence.</p> <p>1. Directors in financial institutions are summoned to the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs. They should know of and give direction to the general affairs of the institution and its business policy, and have a general knowledge of the manner in which the business is conducted, the character of the investments and the employment of the resources. No custom or practice can make a directorship a mere position of honor void of responsibility, or cause a name to become a substitute for care and attention. The personnel of a directorate may give confidence and attract custom; it must also afford protection. What a director must do in exercising reasonable care in the performance of his duties is always dependent upon the facts. •</p> <p>2. The respondent, a director of a trust company, has been sued to recover losses sustained by the company through his alleged neglect of duties. By arrangement with him when he became a director he was not expected to attend the meetings or to take active part in the affairs of the company. The respondent testified that he never went near the trust company, knew nothing of its affairs, gave no attention to its business, took no action except to resign. The questions litigated upon the trial were two, the respondent’s neglect and the losses attributable thereto. The trial judge found the facts of the transactions but failed to make any finding upon these two questions. Whether respondent in exercising reasonable care would have left such an institution as he was connected with without some scrutiny of its initial investment and supervision ■ of its loans, or without directing the nature of its business policy, is a question of fact for the trial court.</p> <p>3. There is no finding either of neglect, that there was not neglect, or that the losses were not due to respondent’s neglect. The trial court refused a request to find that respondent was negligent and that losses resulted therefrom; but this is not a finding that he was not negligent or that losses did not result therefrom. A refusal to find a fact requested is not equivalent to an affirmative finding to the contrary, and the failure of the trial court to find upon the issue raised by the pleadings and evidence given upon the trial is a mistrial. ' A judgment must, be based upon the facts found, not facts refused. There is evidence from which a finding might be made of the respondent’s neglect, and that losses were attributable thereto. These matters not having been passed upon by the .trial judge, there was a mistrial which requires a reversal and a rehearing.</p>

Appeal' from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1914, affirming a judgment in favor' of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was brought to restrain the defendants from maintaining a sewer pipe and connections on the lands of the plaintiffs.

<p>Constitutional law — the act of the Legislature (L. 1915, ch. 666) requiring the International Bridge Compaúy to erect roadways for pedestrians and vehicles on its bridge across the Niagara river, and imposing penalties if it failed to comply with the requirement, is a valid and constitutional enactment.</p> <p>Tfie act incorporating the International Bridge Company, the defendant herein (L. 1857, ch. 753), and authorizing it to build a railroad bridge across Black Rock harbor in the Niagara river, from land in the state of New York to Squaw island in the river, contained a provision that the bridge might be built as well for the passage of persons on foot as for the passage of railroad trains. About the same time the Canadian government passed a similar act incorporating a company by the same name and for the same purposes but containing a provision that the bridge when constructed “ shall be as well for the passage of persons on foot and in carriages and otherwise as for the passage of railroad trains.” Afterward, and before any bridge was built, the two corporations were consolidated by an act of the legislature of this state (L. 1869, ch. 550) with “ all the rights, privileges and franchises, and subject to all the disabilities and duties of each of such corporations so consolidated,” and this charter was confirmed by Congress. Thereafter the defendant company constructed a bridge across the Niagara river opposite Buffalo, but no provision was then nor has since been made for vehicles or foot passengers. Thereafter the United States government acquired from the state all its right and title to the lands and waterways for contemplated improvements, including those over which the bridge was erected.« In 1915 the legislature passed an act (L. 1915, ch. 666) which amended the act incorporating the defendant company (L. 1857, ch. 753) and provided that a roadway for vehicles and a pathway for pedestrians should be erected on the bridge in question between Squaw island and the mainland of the state, to be ready for use by January 1, 1916, and if not then erected that the defendant or its successor should be liable to a penalty of fifty dollars a day for each day it remained in default. The roadway .and pathway were not built and this action was brought to recover penalties imposed by the act.</p> <p>Held, first, that the act of 1915 is constitutional, that it does not violate a provision of a contract — the charter granted in 1857 — by imposing additional burdens and obligations upon the defendant. Tne Canadian act provided that “ said bridge shall be constructed as well for the passage of persons on foot and in carriages and otherwise as for the passage of railroad trains,” and, hence, when the two corporations were consolidated with their consent and the consent of the state, the defendant became obligated- to construct a bridge for railroad trains, foot passengers and vehicles.</p> <p>Second, that the grant to the Federal government did not give to the United States any other or greater power of control than it otherwise had on the bridge. The statute affects only so much of the bridge as lies within the state of New York, and the authority of the state over it is plenary, subject only to such action as Congress may take in execution of its power under the Constitution to regulate commerce among the several states.</p> <p>Third, that upon the facts found below the contention that the act is confiscatory and deprives defendant of its property without due process of law is untenable. (Escanaba Co. v. Chicago, 107 U. S. 678; Cummings v. Chicago, 188 U. S. 410, followed.)</p>

The facts, so far as material, are stated in the opinion. The certificate of the attorney-general that no appeal from the judgment sought to be collected had been or would be taken by the state was not necessary. (Code Civ.

•The nature of the controversy and the facts, so far as material, are stated in the opinion. The. proceeds of the oats were in transit at the time they were stopped because Wiffler had rejected them. (L. 1909, ch. 45, § 139.) The proceeds of the oats were in transit at the time they were stopped because the railroad company had not acknowledged to Wiffler that it held the oats on his behalf and continued in possession as' his bailee.

The nature of the action and the facts, so far as material, are stated in the opinion. The audit, i. e., the determination by the board of supervisors of the number of lines copied and extended, is conclusive, except on a direct review by certiorari or otherwise. (Cons. Laws, ch. 11, § 23; Cons.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in charging that the gate post, if on the street, even though within the courtyard or stoop line, was a nuisance as a matter of law. (Melker v. City of New York, 190 N. Y. 481; Murphy v. Leggett, 164 N. Y. 121; McMillan v. Klaw, 107 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 28, 1917, affirming a judgment in favor of defendants, respondents, entered upon a dismissal of the complaint by the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The mechanic’s lien of the plaintiff attached to the sum or earned payment of $2,362.50 in the hands of the city of New York. (L. 1909, ch. 38, § 5; Foshay v. Robertson, 137 N. Y. 134; Van Clief v. Van Vechten, 130 N. Y. 571; Upton Co. v. Flynn, 169 App. Div. 79; Herrmann & Grace v. Hillman, 203 N. Y. 435; Anisansel v. Coggeshall, 83 App. Div. 491.)</p> <p>The mechanic’s lien of this defendant, appellant, attached to the sum of $2,362.50, the amount certified to the comptroller for payment, which sum was due or became due at the time this defendant appellant’s lien was filed. (Foshay v. Robinson, 137 N. Y. 134; Anisansel v. Coggeshall, 83 App. Div. 491; Upton & Co. v. Flynn, 169 App. Div. 79.)</p> <p>To entitle a lienor to recover on a lien against a municipality it is incumbent upon him to show either that the contractor performed his contract, and that by reason of such performance some amount became due and owing thereon, or that, by reason of some special provision of the contract, there was, when the lien was filed, something due such contractor thereon, or that something became due him upon it thereafter, applicable to the payment of such lien. (Herrmann & Grace v. Hillman, 203 N. Y. 435.) The lienors stand in the shoes of the contractor. And if Blake & Williams, under the terms of the contract, would not be entitled to recover anything, it is rather difficult to appreciate that there is any fund in existence, representing the indebtedness due from the board to the contractor, against which a hen or liens may be enforced. (Weyler v. Rust, 144 App. Div. 296; Upson v. United E. & C. Co., 130 N. Y. Supp. 726.)</p>

Appeal, by permission, from a judgment' of the Appellate Division of the Supreme Court in the second judicial department; entered August 6, 1917, affirming a judgment in favor of plaintiffs, entered upon a decision ' of the court on trial at Special Term. The nature of the. action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. One administering a trust may properly resist a proceeding of removal and the expense of resisting such proceeding is a proper charge upon the fund. (Matter of Higgins, 80 Misc. Rep. 609; Noyes v. Blakeman, 6 N. Y. 567; New v. Nicoll, 73 N. Y. 127; Schoenherr v. Van Meter, 215 N. Y. 548.) This court has power to protect the plaintiff in the circumstances shown by this record.

The facts, so far as material, are stated in the opinion. The state’s immunity from liability for claimant’s injuries under the common law was not altered by the enactment of chapter 658, Laws of 1915 which violates the provisions of sections 19 and 20 of article 3, and section 9 of article 8 of the Constitution of the state.

Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the first judicial ■ department, entered February 11, 1915, as modified an order of Special' Term directing payment of moneys in the hands of a receiver, appointed in an action to foreclose a mortgage, to the plaintiff in said action. The facts, so far as material, and the question certified are stated in the opinion.

<p>Tax — supplementary proceedings — supplementary proceeding under the Code of Civil Procedure to collect tax assessed against a foreign corporation cannot be maintained since such proceeding under the Code will lie only against a resident taxpayer for a personal assessment.</p> <p>1. A supplementary proceeding may be taken against a corporation, and the same proceedings may thereupon be had in all respects for the collection of a tax as for the collection of a judgment. (Tax Law [Cons. Laws, ch. 60], § 299.) The order herein required the corporation to appear “ and be examined under oath concerning its said invested capital.” The order is not in accordance with the proceeding under the Code “ upon a judgment docketed in such county.” It should have been set aside by the court for that reason.</p> <p>2. A proceeding supplementary to execution cannot be sustained upon a foreign judgment or a judgment in rem. It must be a judgment by which the person of the judgment debtor is bound. The order to be obtained in the proceeding is one requiring the debtor to attend and be examined concerning his property, that the same may be applied in satisfaction of the judgment. (Code Civ. Pro. § 2435.)</p> <p>3. " The assessment against the appellant, a' foreign corporation, was upon its capital invested in its business. In form it was as provided by the statute a personal assessment, but it was in fact an assessment in rem, the thing assessed being the capital so invested in business in said city. The Code proceeding is dependent upon a judgment acquired after obtaining jurisdiction of the person of the judgment debtor. So the proceeding under section 299 of the Tax Law should be and is dependent upon a tax against a resident taxpayer.</p>

The facts, so far as material, are stated in the opinion. The construction placed upon the agreement by the courts below was correct. (Hoffman v. Æ. F. Ins. Co., 32 N. Y. 405; White v. Hoyt, 73 N. Y. 505; Gillette v. Bank of America, 160 N. Y. 549; Hamer v. Sidway, 124 N. Y. 538; Callanan v. K., etc., R. R. Co., 131 App. Div. 306; French v. Syracuse, 18 Misc.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 15, 1918, which affirmed, as matter of law, an order of Special Term denying, as matter of law, an application for a writ of prohibition. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion.. The findings of fact having some evidence to sustain them and the reversal of the Appellate Division being conclusively presumed to be on the law, the order of the Appellate Division should be reversed and the award affirmed. (Code Civ. Pro. § 1338; Middleton v. Whitridge, 213 N. Y. 499; Lennox v. Lennox, 195 N. Y. 359; Untermyer v. City of Yonkers, 188 N. Y. 594; People ex rel. Man. Ry.

<p>New York (city of) — notice of claims against city for damages or injuries to real property — effect of statute (L. 1912, ch. 452) amending section 261 of Greater New York charter — sufficiency of allegations and evidence that damages- to real property were caused by negligent construction of a sewer — sufficiency of notice of claim as to property injured and character and amount of damages — when part of claim barred by chapter 452 of Laws of 1912.</p> <p>This action was brought to recover damages to real property evidenced and measured by loss of rents resulting from the repeated flooding of such premises by the overflow from a sewer alleged to have been improperly and negligently constructed by the defendant. The provisions of the charter of the defendant upon which the defense is based are found in section 261, which, as amended by chapter 452 of the Laws of 1912, provides in substance that in the case of claims against the city accruing after the passage of the act for damages to real or personal property alleged to have been sustained by negligence or maintenance of a nuisance by the city, no action shall be maintained against it unless commenced within one year nor unless notice of intention to commence the action shall have been served on the comptroller within six months after the injury, such notice to contain the specific facts thereby required. The amendment made by the act of 1912 consisted in making said section applicable to claims for damages or injuries to reai property which theretofore had not been included. Held, first, that plaintiffs, by their notice of claim, by the allegations of their complaint and by their evidence upon the trial, have specifically and distinctly alleged negligence upon the part of the defendant and have sustained such allegations by proof of improper construction of the sewer. Second, the notice of claim which was served was sufficient. It fairly apprised the defendant that the demand was for damages to a specified piece of real estate caused by the overflow from a negligently constructed sewer, fully identified, and which damages consisted in and were shown by the loss of rental value at a specified amount per month during a given period less a small amount of rents collected. Third,, the claim made by defendant that the limitations contained in said period covered by the judgment is well founded, and plaintiffs are limited after the amendment of 1912 became effective to damages caused by overflows of their premises within six months preceding the date of filing notice of claim, there being no question made as to the right to recover for damages sustained before that amendment became effective.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s intestate paid the full fare which the defendant was entitled to by law, and, therefore, there was no consideration for the release on the back of the ticket. (Bissell v. N. Y. C. R. R. Co., 25 N. Y. 442.) The defendant could not make a contract to be released from negligence when a consideration was.paid for passage. (Gill v. Erie R. R. Co., 151 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The facts clearly show that up to and following the instant when the plaintiffs’ testator was struck, the race continued; that the speed was illegal; and that the streets were used by both of the defendants in violation of the law.

The nature of the action and the facts, so far as material, are stated in the opinion. The driver of the first car saw Mr. Wolcott stop and wait for his car to pass. He was bound to foresee that Mr. Wolcott might suppose, as he had a right to do, that there was no obstruction, and attempt to pass between the two automobiles. A user of a city street has the right to assume that all parts of the street intended for travel are safe.

The nature of the action and the facts, so far as material, are stated in the opinion. The automobile which collided with respondent’s intestate was not engaged in the business of the appellant at the time of the accident, so that appellant was not responsible for the accident. (Potts v. Pardee, 220 N. Y. 431; Reilly v. Connable, 214 N. Y. 586; Lanzer v. Read, 160 App. Div. 584; Heissenbuttel v. Meagher, 162 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The relations of Beatty to the exploration company were highly fiduciary. The duty which he owed to his employer was that of uberrima fides. The latter is, therefore, entitled to any profits derived by Beatty in the course of his agency, other than those which it was expressly stipulated that he should have.

The modification of the Appellate Division consisted in a direction for the discharge of the relator. The facts, so far as material, are stated in the opinion. The Parole Commission Act, as applied to this case, is not an ex post facto law. (People ex rel. Hendrick v. Kernochan, N. Y. L. J., Dec. 28, 1916, 177 App. Div. 922; Prince v. Warden of Penitentiary, N. Y. L. J., Nov. 9, 1917; People ex rel. St. Clair v. Davis, 143 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1915, affirming a judgment in favor of defendant entered upon an order of Special Term overruling a demurrer to certain defenses set up in the answer and dismissing the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>It was error to dismiss the plaintiff’s complaint on the ground that it did not state a cause of action. (Abbey v. Wheeler, 170 N. Y. 122; Kain v. Larkin, 141 N. Y. 145; Millikan v. Western Union, 110 N. Y. 403; Wheeler v. Conn. M. L. Ins. Co., 82 N. Y. 543; Hale v. Omaha Nat. Bank, 49 N. Y. 626; Wenk v. City of New York, 171 N. Y. 607; Clark v. West, 193 N. Y. 349; Hey v. Dolphin, 92 Hun, 230; Williams v. Montgomery, 148 N. Y. 519; Scruggs v. Cotterill, 67 App. Div. 583; Barnes v. Brown, 80 N. Y. 527; Lorillard v. Clyde, 86 N. Y. 384; Drucklieb v. Harris, 209 N. Y. 211.) It was error to overrule plaintiff’s demurrers to defendant's separate defenses. (San Remo C. M. Co. v. Moneuse, 149 App. Div. 26; Matter of Duffy, 125 App. Div. 406; Davison v. Budlong, 40 Hun, 245; W. C. & M. Co. v. Holbrook, 118 N. Y. 586; Mott v. De Nisco, 106 App. Div. 154; Browning, King & Co. v. Terwilliger, 144 App. Div. 516; Fairchild v. C. & C. Contract Co., 153 App. Div. 277; Simon v. Etgen, 213 N. Y. 589; Hawley v. Keeler, 53 N. Y. 114; Van Dyke v. Wood, 60 App. Div. 208.)</p> <p>The supposed contract set forth in the thirteenth article of the complaint as having been made between the plaintiff and the defendant is against public policy on its face, as it would make plaintiff usurp the functions of the board of directors as well as of the other officers of the transportation company. (Cont. Securities Co. v. Belmont, 206 N. Y. 7; West v. Camden, 135 U. S. 507; Flaherty v. Cary, 62 App. Div. 116; Abbott v. Harbeson Textile Co., 162 App. Div. 405; Fennessy v. Ross, 5 App. Div. 342; Wilbur v. Stoepel, 82 Mich. 344; Cook on Corp. [5th ed.] 1346, § 622a; Jackson v. Hooper, 76 N. J. Eq. 603; Cone v. Russell, 48 N. J. Eq. 214; Singers-Bigger v. Young, 166 Fed. Rep. 85; Matter of Germicide Co., 65 Hun, 606.)</p>

The plaintiff by its complaint alleged that it is a corporation, and that it “ Was and still is engaged in the business of designing, manufacturing and selling at wholesale ladies’ gowns and wearing apparel in the borough of Manhattan, City of New York,” and that the defendant E. A. Jackson, Inc., is a corporation “ Likewise engaged in the business of designing and selling at. wholesale ladies’ gowns and wearing apparel in the borough of Manhattan in competition with the…

The nature of the action and the facts, so far as material, are stated in the opinion. The writings relied on by the plaintiffs were not binding renewals. The. letter of March 29, 1911, was nothing more than a counter proposition. (Ganss v. Petroleum Co., 125 App. Div. 760; Insurance Co. v. Rhea, 123 Fed. Rep. 9; Standiford v. Thomson, 135 Fed.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 2, 1917, unanimously 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 record present's a question of law which has survived the unanimous affirmance.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 20, 1917, which reversed an order of Special Term authorizing an issue of receiver’s certificates in so far as it provided that the lien of such certificates should be prior to that of a first mortgage covering certain of the railroad properties.

The facts, so far as material, are stated in the opinion. The theory of the New York law is not indemnity for loss of a member or physical impairment as such, but compensation for disability to Work made on the basis of average weekly wages.

Appeal, by .permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 8, 1918, 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 claimant’s injury did not arise out of or in the course of the employment.

The facts, so far as material, are stated in the opinion. The commission was without power to make the order requiring this relator to set aside each month a sum equal to twenty per cent of its gross operating revenue to cover maintenance and depreciation. (People v. Willcox, 200 N. Y. 423; People ex rel. D. & H. Co. v. Stevens, 197 N. Y. 1; People ex rel.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 10, 1917, unanimously 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 injury was not one “ arising out of ” Redner’s employment. It arose out of an ordinary street hazard.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 10, 1918, unanimously affirming a judgment of the Court of Claims, dismissing the plaintiffs’ claim upon the merits. 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 record presents prejudicial error in the refusal of the trial judge to allow the jury to award substantial damages to the plaintiff on a quantum meruit, despite the jury’s finding that compensation is due to the plaintiff for services rendered to decedent, even though there was no express contract. (Sussdorf v. Schmidt, 55 N. Y. 319; Clapp v. Schaus, 156 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the provisions of section 96 of the Negotiable Instruments Law the defense of usury to negotiable paper is no longer available against a bona fide holder for value in due course and without, notice of the infirmity. (Broadway Trust Co. v. Manheim, 47 Misc. Rep. 416; Klar v. Kostiuk, 65 Misc. Rep. 199; Oeser v. Behrend, 89 Misc.

' The facts, so far as material, are stated in the- opinion. The judgment must he reversed because the court did not submit any degree of homicide lower than murder in the first degree, as to the appellant — .although it submitted such lower degrees as to the co-defendant Graff, who! was convicted of manslaughter, the evidence as to both defendants- being identical in substance. The court also erred in receiving and accepting two verdicts in the case.

Wendel, deceased. •The appraiser appointed pursuant to the petition therefor in the Matter of the Transfer Tax upon the Estate of John G. Wendel, Deceased, omitted from his report of property subject to a transfer tax certain real property described in the will of John D. Wendel, deceased, of .which said John G. Wendel had a power of appointment.

<p>Lackawanna (city of) —■ proceedings of common council in designating official newspaper under charter of that city examined and held to be substantially in conformity with charter and within authority of common council.</p> <p>1. The relator is the owner and publisher of a paper in the city of Lackawanna which was continued as the official paper of that city after the expiration of the time for which it was so designated, through failure of the common council to make a new designation at the time required by law. The common council subsequently designated another official paper in the place of the one published by relator, who claims that this action was illegal and that it should still be permitted to do the official printing for the reasons: First, that said designation was not made by the common council “ at the first meeting (of the year) or as soon thereafter as practicable,” and second, that the advertisement for bids for such service should have been published in relator’s paper which continued to be the official paper until some other one was legally designated. (City Charter, §§33, 62, subd. 9; L. 1909, eh. 574). Held, that the failure of the common council to take proceedings at its first meeting in January “ or as soon thereafter as practicable ” to designate an official newspaper did not deprive such council of its right to make such designation in August. Held, further, that the various provisions of the charter applicable to that subject did not compel the council to advertise in relator’s then official paper for bids upon which to base a designation of a new and different official paper.</p> <p>- 2. The Appellate Division included in its order of reversal a brief statement that such reversal was based upon the ground that “ Section 33 of the charter of the city of Lackawanna * * * does not require publication in the official newspaper of proposals for designation of the official newspaper.” Although not in a desirable form, this statement may be regarded as a compliance with the rule requiring it to affirmatively appear that the application was denied as a matter of law and not as a matter of discretion and hence the order is appealable to this court. ■</p>

The facts, so far as material, are stated in the opinion. The burden of proof that there is a loss of the use of a foot rests on the claimant; there is no presumption under the Compensation Law that there is a loss of the use of a foot. (Grammici v. Zinn, 219 N. Y. 322; Kanzar v. Acorn Mfg. Co., 219 N. Y. 326; Boscarino v. Carfagno & Dragonette, Inc., 220 N. Y. 323; Carkey v. Island Paper Co., 177 App.

The facts, so far as material, are stated' ih the opinion. The deposition was properly in evidence. (People v. Qualey, 210 N. Y. 202; People v. Bruno, 220 N. Y. 702, 175 App. Div. 33.) The trial court was bound to presume that all the proceedings in the Magistrate’s Court had been regular.

<p>Testamentary trust — power of sale — a power of sale incidental to a trust and for convenience of its administration may be executed by a surviving trustee unless the joint action of all named trustees is expressly required by the terms of the trust.</p> <p>1. Where a power of sale' is so connected with a trust that it is a mere incident, created so that the trust may be more conveniently administered, then it may be executed by the person or persons who at the time are the trustee or trustees, unless the joint action of all named as trustees is expressly required by the grantor.</p> <p>2. Testator bequeathed “ the net balance of the income ” of his property to a relative who died before testator. After her death he gave such “ net income ” to his brother for life with remainder to his heirs. He empowered his executors to lease, sell and dispose of his real estate as they judge best and he named his brother, to whom he had bequeathed the net income of his property, and another “to be the executors of and trustees under ” his will. Thereafter, the other executor having resigned, the brother as remaining executor, acting under the power of sale contained in the will, conveyed certain real estate-of the deceased to the defendant’s predecessor in title. The appellant is one of the children and heirs at law of the brother, now deceased. Claiming that the power of sale was not properly exercised he brings this action as one of such heirs to recover an undivided part of the property conveyed and now in the defendant’s possession. Held, that the will created a trust estate vested in the persons named as trustees, and that the remaining executor and trustee might convey.</p>

<p>Railroads — negligence — contributory negligence — injury to prospective passenger by tripping and falling over wire in grass plot maintained at railroad station — question for the jury.</p> <p>Defendant, a railroad company, maintained, adjacent to. the walks leading to its station, a plot for grass and flowers through which was stretched a wire suspended on posts and hanging a short distance from the ground. There is evidence that for a long time, and in fact as a usual thing, people in going to and from the railroad station, had crossed the grass plot without restriction, stepping over the wire in so doing and frequently, even in the day time, people were seen to trip over the wire, and that some of the railroad men had been notified of this fact, so that a jury might have found that notice to the defendant was fairly to be inferred from such evidence. The night of the accident in question was dark and the grass plot was not lighted and plaintiff, who was unacquainted with the situation, and was hastening from the adjacent street to take an electric car of the defendant, which had just stopped to take on passengers, hurried across the grass plot, although there was evidence to the effect that there was another and apparently unobstructed course, and in so doing tripped over the wire, which she did not see, and fell receiving serious injuries for which this action is brought. The judgment of the trial court dismissing the plaintiff’s complaint has been affirmed by the Appellate Division by a divided court. Held, error; that it was a question of fact for the jury whether the defendant, under all of. the circumstances, was negligent in maintaining a wire of the kind, at a place, and at a height from the ground where it did maintain it, in the grass plot of the depot grounds, and whether, also, the plaintiff, who was unfamiliar with the surroundings, was guilty of contributory negligence in crossing the grass plot.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was error to deny the motion for a direction of a verdict at the end of the whole case, as there was no evidence to sustain a finding that the driver of the car was at the time of the accident acting within the scope of his employment, or that his negligence can be imputed to the defendant.

<p>Negligence — injury to driver of truck thrown therefrom when front wheel went into a rut in planking of a wharf or approach thereto — facts examined and held that plaintiff cannot recover.</p> <p>The complaint alleged that the defendant had a permit from the city of New York to use a dump at the foot of a street together with the wharf and the ramp, or approach, thereto and that by the terms of such permit he agreed to keep in repair the wharf and the ramp and approach; that defendant allowed the ramp to become out of repair and in a dangerous condition; and that while plaintiff’s intestate, who was employed by a corporation which was permitted by defendant to use the dump and ramp, was driving a loaded truck over the ramp to empty the same at the dump, a wheel of his truck went into a hole and plaintiff’s intestate was jolted off, receiving injuries from which he died. Defendant’s answer in terms admits that he agreed to keep the ramp in good order. On the trial the plaintiff offered in evidence, without objection, the permit, and by its terms it appears that the defendant agreed to keep in repair the superstructure of the wharf and that nothing therein imposed upon the defendant the duty of keeping the ramp in repair, but the only attempt the defendant made to correct his admission in the answer to conform with the facts was a motion to amend his answer at the trial, which was denied as a matter of discretion. It also appears that the wharf and ramp were floored with planting three inches thick, laid over pine sheathing; that while plaintiff’s intestate was driving up the ramp with a loaded truck in broad daylight a front wheel of the wagon went into a rut on the surface of the ramp, about two feet long, twelve inches wide and three inches deep with the top planking worn down to the sheathing. Held, that the plaintiff cannot recover.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The executrix of the last will and testament of Griffith Evans cannot maintain this action. (Bown v. Cath. Mut. Ben. Assn., 33 Hun, 263; Beeckel v. I. O. O. U. F., 58 Hun, 7; 124 N. Y. 661; Dominick v. Stern, 79 Misc. Rep. 59; Hellenberg v. Dist. No. 1, I. O. B. B., 94 N. Y. 580; Bacon on Ben.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 1, 1917, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The nature of the controversy, 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.

<p>Crimes — rape — not committed unless woman oppose man to utmost limit of her power — corroboration — complaint to police not sufficient within meaning of statute.</p> <p>1. Rape is not committed unless the woman oppose the man to the utmost limit of her power. A feigned or passive or perfunctory resistance is not enough. It must be genuine and active and proportioned to the outrage</p> <p>2. The law requires corroboration of the complainant’s testimony. (Penal Law, § 2013.) The trial judge told the jury that for that purpose they might consider her complaint to the police. Held, that the complaint was not corroboration “ by other evidence ” within the meaning of the statute.</p>

30 in payment for service rendered by the plaintiff as special deputy clerk attending upon Supreme and County Courts of Oneida county from June 1, 1913, to March 31, 1914, pursuant to chapter 367 of the Laws of 1913, and a resolution of the board of supervisors, duly adopted, fixing the salary of such special deputy clerk at $1,000 per year.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 29, 1917, which affirmed an order of Special Term directing the issuance of a liquor tax certificate to the petitioner. Pursuant to chapter 623 of the Laws of 1917, a commission was duly appointed to determine the places within the town of North Hempstead where trafficking in liquor might be continued during the' term commencing October 1, 1917, and said commissioners inquired as to conduct of the places within said town and made and filed its determination on or about August 27, 1917. By said determination the said commissioners designated the respondent, Patrick Murphy, as one of the places where trafficking in liquors might be continued for the year 1917 on the said premises. Thereafter, on September 15, 1917, the said commissioner of excise made and filed a statement which purported to treat said return of the local excise commission as a nullity, and to designate the places in said town of North Hempstead where traffic in liquors might be continued after October 1, 1917, and from said list omitted the premises of the respondent and one John F. Boles, and substituted in the places of these two, one Paul Weidman.</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 28, 1917, which affirmed an order of the Suffolk County Court directing the issuance of a liquor tax certificate to the relator. In the township of Huntington after its investigation, provided for under the authority of chapter 623 of the Laws of 1917, the local commission filed its report, designating, among others, the place of the respondent as one entitled to a liquor tax certificate from October 1, 1917. The excise commissioner, upon receipt of this report, judicially determined that the report was void; that the commission had failed in its duty, and for that reason he proceeded of his own volition to file a new designation, wherein he failed to certify the place of the respondent as one entitled to a liquor tax certificate, and because of this omission the county treasurer refused to issue a certificate to the respondent.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 27, 1917, which affirmed an order of Special Term directing issuance of a liquor tax certificate to the relator, who prior to October 1, 1917, was trafficking in liquors in the village of Rockville Center, town of Hempstead.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 13, 1917, which reversed an award of the state industrial commission made under the Workmen’s Compensation Law, and dismissed the claim on the ground that the claimant’s husband when he met with the accident which caused his death was employed by the railroad as a plumber in inspection and repair of a passenger station at Hillsdale, then in use by the railroad as an instrumentality of interstate commerce, and that, therefore, the Federal Employers’ Liability Act exclusively prescribed and limited the rights and liabilities of the parties.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 10, 1913, which affirmed an order of the Chemung County Court vacating the report of commissioners in a proceeding to lay out a highway on the following grounds: “ That the highway laid out by the commissioners does not comply with the provisions of the Highway Law, requiring the laying out of a highway at least three rods in width, in that said highway is laid out for part of its distance over lands less than three rods in width and that said commissioners have no-jurisdiction to lay out such highway nor has this court jurisdiction to confirm their action in so doing, and on the further ground that said highway as laid out is a cut de sac and leads up to and stops at the boundary line of the private lands of Frank Wood, and by so doing such highway can be of no public benefit or service to any property other than that of Frank Wood, without first passing such private lands.”</p>

<p>Motion in each case to recall and amend remittitur. (See 222 N. Y. 305, 642.)</p>

88; the receipt by the defendant of the cash paid upon the sale to the amount of $1,335,938.68; a demand upon the • defendant by the plaintiff for an accounting of its receipts for disbursements and proceedings under the trust agreement; a similar demand by other holders of these bonds; the failure and refusal of the defendant to account to any of the bondholders.

Plaintiff alleged a recorded title in herself and the defendants Allie K. Feek and Jennie Dimick, and set forth that the defendant John Crossman was in possession of the premises under a lease made between him and the plaintiff’s grantors, dated in 1892 under which he paid rent up to March 1, 1907, and he has .never surrendered possession of the premises which he obtained under said lease, and refused to pay rent under said lease; that the plaintiff and the defendants Allie…

Said judgment restrained defendants and all persons assuming to be officers or de facto officers of the alleged municipality formerly known as “ The Area or Territory of Sylvan Beach ” from assessing, levying or attempting to collect taxes in said territory.

Knight, deceased. The complaint alleged that the testatrix at the time she executed the will was not competent to make it; that the will was not executed in conformity with the laws of the state and that execution thereof was procured by duress, coercion, fraud and undue influence.

department, entered December 10, 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 under the Employers’ Liability Act, to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of the defendant, his employer.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 28, 1918, which affirmed an order of Special Term denying an application for an order adjudging a petition filed in the city clerk’s office of Syracuse on March 16, 1918, under the City Local Option Law, invalid, illegal and void, and directing that said city clerk and other public officers be directed to .disregard the said petition.</p>

The complaint alleged that plaintiff, a boy of about, fourteen years of age, was employed in the manufacturing plant of the defendant.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1917, which affirmed an order of Special Term denying a motion to vacate an order of Special Term directing the examination of the appellant in supplementary proceedings instituted under section 299 of the Tax Law for the purpose of collecting taxes assessed against a non-resident corporation upon its capital invested in its business within…

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered April 4, 1916, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendants.

The intestate was a member of a gang of electric linemen and while engaged in installing certain devices on defendant’s signal wires received a shock of electricity which caused his death. Plaintiff alleged negligence on the grounds of failure to insulate the wire, failure to kill or ground it, failure to furnish and inspect proper rubber gloves and the furnishing of a ladder which was insecure, insufficient and unsafe.

By the terms of said mortgage $1,500 of the principal became due and payable May 2, 1907, and the balance on May 2, 1909. Mary Fint died on the 14th day of November, 1907. Her will was probated, and letters thereon issued to the plaintiffs, her daughters, on March 14, 1908. This action was not commenced until March 8, 1915.

The question of law on appeal was: “ Can a person, under subdivision 2, section 80 of the Penal Law, be convicted of the crime of attempting to commit the crime of abortion when the indictment and the proof affirmatively show that the subject was not a pregnant woman? ”

Plaintiff’s intestate was struck by one of defendant’s trains while walking along the sidewalk on North Clinton street in the city of Syracuse. At the place of the accident the railroad track crossed the sidewalk at grade. The defense was contributory negligence.

Defendants counterclaimed, demanding specific performance. Held: “ Unless the overlap did exist, and the burden was upon the plaintiff to prove it, the defendants were not in default when the vendee refused to complete the purchase, and what they did or failed to do after that date becomes immaterial. The refusal to find that the overlap existed leaves plaintiff wholly in the wrong.”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department entered October 20, 1918, which reversed an order of Special Term authorizing an issue of receiver’s certificates in so far as it provided that the lien of such certificates should be prior to that of a first mortgage covering certain of the railroad properties.

The assessment was made upon the theory that a permission granted by the city of Syracuse to the relator’s predecessor to construct and maintain the substructure constitute a special franchise. The trial court held that the relator had no special franchise within the meaning of the Tax Law.

Briggs, deceased. Testatrix, by her will, erected a trust for the benefit of her husband with remainder to certain named beneficiaries.

Claimant was employed by the town of Saugerties as a foreman of highways. He was injured on a Sunday evening by being thrown from an automobile in which he was riding with the town superintendent of highways. He testified that at the time of the accident they were on their way to hire men to work on the roads. Objection was interposed to the award that the claimant’s injury was not sustained in an accident which arose out of or in the course of his employment.

Under the trust agreement in suit the trustee is directed to apply the income arising from a certain part of the trust estate to the use of George A. Fuller, an infant! The Nassau County Trust Company had been appointed general guardian of said infant. The only question on appeal was whether such income as it accrues should be paid to the general guardian or whether the plaintiff might apply it directly to the use of the infant.

Defendant was engaged in the erection of certain steel towers at Wilmington, Delaware. The intestate had charge of a gang of men on the work who, at the time of the accident, were engaged in hoisting a heavy box to a platform on one of the towers.

The intestate was standing in East Ferry street in the city of Buffalo waiting to board one of defendant’s cars, which approached from the east. She signaled it, the car slowed down a little, then started rapidly ahead. After it passed intestate was found lying on the pavement with the injuries from which she died. The defense was contributory negligence.