Volume 224 — New York Reports

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 5, 1918, which reversed a decree of the Saratoga County Surrogate’s Court directing delivery to the petitioner, as administrator of the estate of F. Augustus Heinze, deceased, of certain shares of stock, and dismissed the petition.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Workmen’s Compensation Law — award cannot be given employee of foreign corporation injured in accident in another state, because contract of employment was made in this state.</p> <p>1. The Workmen’s Compensation Act involves an exercise of the police power of the state, and does not attempt to regulate the duty of foreign employers in the conduct of their business within foreign jurisdictions.</p> <p>2. Where an employee of a foreign corporation with its offices and factories in other states is accidentally killed while installing machinery for his employer in another state, his widow is not entitled to an award under our Compensation Act, although his contract of employment was made in this state before the offices of the employer were moved to another state, it appearing also that the contract was made before the enactment of the Workmen’s Compensation Law. At the time of the accident by which claimant’s intestate was killed, the employer was under no duty to insure its employees under our law, except such employees as it might send within our state. (Matter of Post v. Burger & Cohike, 216 N. Y. 544, distinguished.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 11, 1918, answering in the affirmative a question certified by the state industrial commission under section 23 of the Workmen’s Compensation Law. The question certified is stated in the opinion.

<p>Insurance (accident) — evidence examined and held that jury might find death of insured was caused by infection from puncture in lip and if so it was effected by accidental means within meaning of policy.</p> <p>Plaintiff’s testator, who held a policy issued by defendant insuring him against “ loss or disability, resulting directly, independently, and exclusively of all other causes, from bodily injuries effected solely through accidental means,” died from inflammation of the brain produced from a germ which came from an infected pimple on his lip. Held, that there is evidence from which a jury might find that the pimple had been punctured by some instrument, and that the result of the puncture was an infection of the tissues; if so the death of plaintiff’s intestate was effected by accidental means within the meaning of the policy.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June. 8, 1917, which affirmed a decree of the- New York County Surrogate’s Court, rendered upon a verdict, denying probate to a paper propounded as the last will and testament of Jennie H. Heaton, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 7, 1918, which reversed an order of the state industrial commission denying an application to set aside an award made under the Workmen’s Compensation Law and granted said application.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Cross-appeals from a judgment. of the Appellate Division of the Supreme Court in the second judicial department, entered December 11, 1915, modifying and affirming as modified a judgment in favor of defendants 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>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 7, 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 defendant demurred to the plaintiff’s complaint, which, upon motion, was overruled by the Special Term. The Appellate Division reversed the Special Term and sustained the demurrer, granting the plaintiff twenty days in which to serve an amended complaint upon the payment of costs. The plaintiff not complying with this order, final judgment of dismissal was thereafter entered which was affirmed by the Appellate Division and is the judgment now brought here for review.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, ejitered July 12, 1917, affirming a final judgment in favor of plaintiffs entered upon the report of a referee, bringing up for review an interlocutory judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 7, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint 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>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 2, 1918, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus.</p> <p>The facts, so far as material, are stated in the opinion.</p>

trial. The facts, so far as material, are stated in the opinion. - The falseness of defendant’s statement destroyed his claim of privilege. (Comm. v. Knapp, 9 Pick. 496; 10 Pick. 477; Greenl. on Ev. [16th ed.], § 379; Wigmore on Ev. 950, § 834; Cowen & Hill’s Notes to Phil. on Ev. [ed. 1839] 238, note 206; 12 Cyc.

<p>Appeal from a judgment entered May 12, 1916, upon an order of the Appellate' Division óf the Supreme Court in the fourth judicial department, which reversed an order of Special Term denying a motion by defendant for judgment in its favor upon the pleadings and granted said motion.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 9,1916, which affirmed an order of Special Term reducing an assessment for purposes of taxation levied against property of the relator in the town of Montezuma.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 5, 1918, 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>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 7, 1917, which affirmed a judgment of the Oneida County Court rendered upon a verdict convicting the defendant of the crime of rape in the second- degree.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The so-called birth certificate of the complaining witness was improperly received in evidence. (Kobbe v. Price, 14 Hun, 55; People v. Sheppard, 44 Hun, 565; State v. Snover, 63 N. J. L. 382; Guthrie v. Haines, L. E. 13 Q. B. D. 818; Verien v. Berger, 35 Ill. App. 112; Durfee v. Abott, 61 Mich. 471; Houlton v. Manteuffel, 51 Minn. 185; Kabok v. Phoenix Mut. Life Ins. Co., 4 N. Y. Supp. 718; McQuirk v. Mut. Benefit Life Co. of Hartford, 20 N. Y. Supp. 908; Hegler v. Faulkner, 153 U. S. 109.)</p> <p>The certificate of birth of the complainant was properly admitted as corroborative evidence on the question of age. (Hatcher v. Rocheleau, 18 N. Y. 86; Douler v. Prudential Ins. Co. of America, 128 N. Y. Supp. 396; Feinman v. Grand Lodge Brith Abraham, 149 N. Y. Supp. 863; Hoffman v. Met. L. Ins. Co., 119 N. Y. Supp. 979; Comm. v. Hollis, 170 Mass. 433; Meehan v. Catholic Ben. Legion, 88 N. Y. Supp. 821; 194 N. Y. 577; Hartshorn v. Met. L. Ins. Co., 55 App. Div. 471; Jacobi v. Order of Germania, 73 Hun, 602; Maxwell v. Chapman, 8 Barb. 579; Jackson v. Goes, 13 Johns. 518; Jackson v. Cody, 9 Cow. 140; Layton v. Kroft, 98 N. Y. Supp. 72.)</p>

Appeal, 'by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 9, 1918, in favor of plaintiff entered 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 facts, so far as material, are stated in the opinion. The Appellate Division was in error in reversing the judgment below on the ground that the defendant was not such officer and agent as came within the legislative intent under the statute. (People v. Lytle, 7 App. Div. 553; People v. Butler, 125 App.

<p>Negligence — when error for the Appellate Division to reverse judgment for plaintiff and dismiss the complaint on ground that the evidence was insufficient.</p> <p>Where in an action under the Employers’ Liability Act, to recover for the death of an employee who was killed by a fall from a stack of lumber while climbing to the top thereof in pursuance of an order from his foreman, there is evidence sufficient to permit the jury to find that the usual and customary way by which an employee could reach the top of a stack of lumber, like the one in question, had not been provided by the defendant, it was for the jury to say whether or not the plaintiff’s intestate met his death by reason of a defect in the ways and plant of his employer, and whether or not the defendant was guilty of negligence. It was error, therefore, for the Appellate Division to reverse the judgment for plaintiff, entered on the verdict of the jury and dismiss the complaint on the ground that plaintiff failed to show negligence on the part of the defendant and that the death of the intestate was caused by his own negligence. The burden of proof upon the question of contributory negligence rested upon the defendant, and the fact that the intestate was injured by reason of using the way that defendant had furnished him does not justify the inference of contributory negligence on his part.</p>

<p>Gas companies — public service commission not vested with power to authorize Municipal Gas Company of Albany to charge a greater price for gas than that fixed by the statute (L. 1907, ch. 227).</p> <p>1. The assertion that a remedy avoids delay and complexity does not enlarge the power or duty of the court of enforcing, within legislative intention, in presented cases, the valid statutes of the state.</p> <p>2. The legislature intended to retain unto itself the power of fixing rates for gas exceeding those fixed as the greatest by statutes. In such retention of legislative power there is no violation of a constitutional provision. It has not vested in the public service commission the power to authorize the Municipal Gas Company of the city of Albany to charge a greater price for gas than that fixed as the maximum bj' chapter 227 of the Laws of 1907. (Pub. Service Commissions Law [Cons. Laws, ch. 48], §§ 64-72.)</p>

<p>Tax — special franchises, Federal and state — a telegraph company may have special rights or franchises under the Post Roads Act and also special franchises under grants by the state — the Federal franchises are not subject to taxation, but in the absence of a finding or evidence that the Federal franchises are included in .an assessment, it will be held valid as an assessment of special franchises granted by the state.</p> <p>Relator was assessed upon special franchises possessed and enjoyed by it in the city of New York. It is conceded on this appeal that it possessed franchises of this character which had been granted to it by the state. But in addition it claimed that it was in the enjoyment of rights in the nature of special franchises derived from the Federal government under the Post Roads Act, so called (U. S. Statutes 1866, chapter 230; 1884, chapter 9), and that these rights, although not properly taxable by the state, were nevertheless included in the assessments complained of, thereby rendering the latter wholly invalid because impossible to separate and eliminate this illegal element. There is no finding'that the assessments complained of include the rights secured from the Federal government under the Post Roads Act and the claim that they do thus include them is based upon the general language of the statutes directing the assessment of special franchises and upon the presumption that the assessors complied with the law. Held:</p> <p>1. That the relator having accepted the provisions of the United States statute of 1866 and for years thereafter having occupied streets constituting post roads, presumably not as a trespasser but under some consent by the proper authorities thereto, had obtained rights in the nature of a special franchise which were not subject to assessment and taxation by the state.</p> <p>2. But that, under the general language of the statutes relating to the assessment of special franchises which do not specifically direct or include the assessment of special franchises granted by the Federal government, it must be assumed that the legislature intended only to reach subjects of taxation which were within its jurisdiction and power and did not intend to include subjects which it knew were absolutely beyond its reach and jurisdiction; and, hence, the statutes should not be construed as directing the assessment of Federal franchises and it must be assumed that the assessors have complied with such statutes aud have not included the same.</p>

<p>Appeal, . in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered August 6,1917, which affirmed an order of Special Term quashing a writ of certiorari and dismissing the petition of the relator for the review of an assessment levied against it for purpose of taxation for the year 1911 upon its property in the city of Troy.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 6, 1918, which modified and affirmed as modified an order of Special Term granting a motion for permission to discontinue a proceeding to acquire lands for public purposes and denying a counter motion to compel filing of the report of the commissioners.</p> <p>The facts, so far as material, are stated in the opinion</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 29, 1917, which affirmed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings under the Rapid Transit Act.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 7, 1918, affirming a judgment in favor of defendant entered upon a dismissal of the complaint' at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Master and servant — negligence — action for death of employee alleged to have been caused by poisonous gas permitted to escape by negligence of defendant — evidence insufficient to prove cause of action —right of plaintiff to submit to voluntary nonsuit — erroneous direction of verdict for defendant.</p> <p>1. The plaintiff’s intestate was in the employ of defendant and was found dead in a trench on its premises near which he had been seen in an apparently healthy condition a short time before. It is claimed by plaintiff that because of the negligence of defendant in not adopting proper preventive means, gas of a dangerous character produced by the operation of defendant’s works had been carried to the place where intestate was, rendering him unconscious and causing him to fall into the trench where he was found, breaking his neck. Held, on review of the evidence, that a verdict .for plaintiff would have been based upon speculation and conjecture rather than upon any proof found in the record.</p> <p>2. At common law, at least in a case where the defendant would not be unjustly prejudiced by such disposition, a plaintiff was entitled as matter of right to submit to a voluntary nonsuit at any time before the jury rendered its verdict. While this rule has been modified by section 1182 of the Code of Civil Procedure, that section simply limits and does not abolish the right of the plaintiff to submit to such nonsuit.</p> <p>3. On the trial a motion to dismiss the complaint was held at defendant’s request by the court until after defendant’s evidence was in. At the close of the evidence, defendant’s motion to direct a verdict was granted and the court did not pass on the motion for a nonsuit. Plaintiff asked before this action was taken to be permitted to submit to a voluntary nonsuit. Exceptions were directed to be heard at the Appellate Division on a motion for a new trial under section 1000 of the Code of Civil Procedure. The Appellate Division granted a new trial. Held, that the complaint was properly dismissed, the only error being in the character of the proposed judgment dismissing it, and that the order of the Appellate Division should be reversed and judgment directed to be entered dismissing plaintiff’s complaint with costs upon her motion for a nonsuit, instead of upon the verdict directed by the court.</p>

<p>Decedent’s estate — contract — enforcement of contract made by one party for benefit of another—promise by husband to wife to leave property by his will to her niece — right of niece to enforce such promise against estate of the husband.</p> <p>1. The general rule both in law and equity with reference to contracts for the benefit of third persons was that privity between a plaintiff and a defendant is necessary to the maintenance of an action ón the contract.</p> <p>2. It seems that the right of the donee beneficiary, as such, to recover on the contract of a third party, made for his benefit, is generally upheld. The general rule in this state sustaining recovery at the suit of the third party would include but few classes of cases not included in the following groups, either eategeorically or in principle. First, where there is a pecuniary obligation running from the promisee to the beneficiary; a legal right founded upon some obligation of the promisee in the third party to adopt and claim the promise as made for his benefit. Secondly, to cases where the contract is made for the benefit of the near relation of a party to the contract. Thirdly, the public contract cases where the municipality seeks to protect its inhabitants ■ by covenants for their benefit, and, fourthly, the eases where, at the request of a party to the contract, the promise runs directly to the beneficiary although he does not furnish the consideration.-</p> <p>3. Where a childless wife, who desired to leave property to a dependent niece, told her husband, who was a lawyer and had drawn her will according to her instructions, that it was not as she wanted it; that she wanted to leave her house and lot to such niece, but as •her strength was waning she was afraid she would not live long enough to sign another will and her husband solemnly promised" that, if she signed this will, he would leave the niece enough in his will to make up the deficit, and testatrix thereupon executed the will, but her husband failed to carry out his promise, the situation differs imperceptibly from the moral duty of the parent to make provision for the child; the niece can maintain an action against the executors of the husband’s estate to enforce the promise, and her equities may be enforced in this action, whether it be regarded as an action for damages or an action for specific performance to convert the defendants into trustees for plaintiff’s benefit under the agreement. (Laiorence v. Fox, 20 N. T. 268, followed.)</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 15, 1918, which modified and affirmed as modified a judgment of Special Term, entered upon the- report of a referee, settling the accounts of a trustee. ; The facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 27, 1918, 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>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 21, 1917, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure.</p> <p>The nature of the controversy and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 26, 1918, which reversed a decree of the New York County Surrogate’s Court settling the accounts of the executor of Joseph it. Megrue, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Surrogates’ Courts — citation — service by publication of citation issued by Surrogate’s Court—construction and application of statute (Code Civ. Pro. §§ 2528, 2629) requiring publication of citation once a week for four successive weeks.</p> <p>Under the statute (Code Civ. Pro. §§ 2528, 2529) providing for the service of a citation of a Surrogate’s Court by publication in a designated newspaper, or newspapers, for such time as the surrogate shall deem reasonable, not less than once in four successive weeks, and by depositing a post-paid copy of the citation in a specified post office directed to the person to be served at a place specified in the order of publication, on or before the first day of publication, there must be a period of at least twenty-eight days between the day of the first publication of the notice and the return day thereof, and where the publication of a citation for the probate of a will issued on the eleventh day of February, and returnable on the eleventh day of March, was not 'commenced until the twenty-fourth day before the return day thereof and the citation was not mailed until twenty-five days before the return day, such service did not comply with the statute. (Market National Bank of N. Y. v. Pacific National Bank of Boston, 89 N. Y. 397, approved.)</p>

■ Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered September 20, 1916, which modified and affirmed as modified a judgment of Special Term judicially settling the accounts of trustees under the will of Agnes H. Robinson, deceased. The facts, so far as material, are stated in the opinion.

<p>Workmen’s Compensation Law — employee — independent contractor not an employee within meaning of statute.</p> <p>1. The Workmen’s Compensation • Law (Cons. L. eh. 67) deals with employers and employees, and an independent contractor is not within its protection. The definition of an “ employee ” (§ 3, subd. 4) does not disturb the distinctions established in the common law between a servant or employee and an independent contractor, and its rules are operative in the consideration of claims under this act.</p> <p>2. Claimant’s decedent agreed with the defendant company that he would paint certain smokestacks for a fixed sum. Decedent was to furnish the ropes, tackle, scaffolding and implements. The company was to supply the paint and pay wages of a man to help him. Decedent was killed in the prosecution of the work. Held, that deeede.nt was an independent contractor and as such not within the intendment of the Compensation Law. ■ .</p>

<p>Workmen’s Compensation Law — evidence — an award made under the law cannot be sustained upon uncorroborated hearsay evidence.</p> <p>An award made under the Workmen’s Compensation Law (Cons. L. ch. 67) cannot be sustained upon hearsay evidence, uncorroborated by facts, circumstances or other evidence. There must be evidence setting forth facts of a probative character, outside of hearsay statements, to prove the award and show it is fair and just. (Matter of Sorge v. Aldebaran Co., 218 N. Y. 636; Matter of Fogarty v. National Biscuit Co., 221 N. Y. 20, distinguished.)</p>

<p>Workmen’s Compensation Law — evidence examined and held insufficient to sustain findings and award of the industrial commission.</p> <p>While the Workmen’s • Compensation Law should receive a liberal construction, it ought not to be so construed as to take money from one person and give it to another without any legal basis therefor. Upon examination of' the facts in this case, held, that there was no evidence to sustain the finding of the industrial commission allowing the claim made by the widow of the deceased and the award made thereon.</p>

<p>Real property — conversion of real estate into personalty — power of allotment in executors —■ when failure of devise precludes conversion of real estate — when devise of real estate invalid because testatrix gave more than half of her estate to charitable institutions, her heirs may have partition of the real estate not carried by the devise.</p> <p>1. Where the conversion of real estate into personalty is an incident to the devise and for the purpose of making it conveniently workable, then, as to so much of the estate as the devise fails to dispose of, because in violation of law, the conversion also fails. No distinction can be drawn in this regard between the right to sell and the right to distribute in kind.</p> <p>2. Where a testatrix, who left her surviving her husband and several heirs at law, gave more than one-half of her estate, most of which was personalty, to benevolent and charitable institutions, and her residuary estate, which included real estate, was given to a “ Home ” for aged and destitute men and women, the devise to the “ Home ” is valid to the extent of one-half and invalid as to the other half (Decedent Estate Law, Cons. L. ch. 13, § 17), and immediately upon her death the title of one-half of such real estate devolved to the devisee, and the other half, by the failure of the devise therefor, passed to the heirs at law of testatrix, who own it as tenants in common, and they may maintain an action for the partition of such real estate.</p> <p>3. The fact that testatrix authorized her executors “ to retain the property, whether real or personal, constituting my real estate * * * at their discretion to distribute the same in kind to the persons who shall become entitled to any part thereof under the provisions of this my will ” does not render the title of her heirs at law defeasible and make an action for partition premature.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 5, 1917, which affirmed a judgment of Special Term decreeing that the interlocutory and final decrees of divorce in favor of plaintiff stand and remain in full force and effect and denying defendant’s application to vacate said decrees.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>1. Titles by adverse possession are in disfavor with persons contemplating the purchase of property and with the courts. Such titles must command unqualified respect, and a mere claim, unfortified by proofs establishing without dispute that possession has been clearly adverse for the required period, is not enough to move the courts in hostility to an unwilling vendee.</p> <p>2. This is an action brought to recover a payment made on a contract for the sale of real estate on the ground that the title tendered by defendant was not marketable. At the meeting of the parties for the delivery of the deed, plaintiff raised objections to the title and defendants attorney stated that in view of the plaintiff’s failure to take the property he considered the contract at an end and felt free to sell the property, and at a later meeting again stated that the contract was at an end. Plaintiff requested extensions for the purpose of investígating the title, which were refused. On the trial, defendant was permitted to produce evidence of her title by adverse possession, which she did not have on the closing day, and plaintiff was given the option then to take such title according to the terms of the contract or have its complaint dismissed. This was toó liberal a view to take of the rights of the vendor on the facts disclosed. The title tendered was, when tendered, for the purposes of marketability, a doubtful title and plaintiff was justified in asking for an adjournment and, when refused, in treating the contract as at an end. •</p>

<p>Appeal from a judgment entered December 31, 1915, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judg-. ment in favor of plaintiff entered upon a verdict directed by the court 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>

The facts, so far as material, are stated in the opinion. The evidence does not indicate that Van Zandt was intoxicated to such an extent, if at all, that he could not have premeditated the commission of the crime. (People v. Governale, 193 N. Y. 581; People v. Barberi, 149 N. Y. 256; People v. Schmidt, 168 N. Y. 568; People v. Ferraro, 161 N. Y. 365; People v. Krist, 168 N. Y. 19; People v. Hughson, 154 N. Y. 153.)

<p>Incompetent persons — action to recover money paid on contract by incompetent-— evidence — finding by jury upon inquisition of the incompetent that insanity existed at a date prior to that of the inquisition and before date of contract in question, not presumptive evidence of the fact — erroneous charge — improper admission of hearsay evidence to prove insanity of the incompetent.</p> <p>1. In a proceeding for the appointment of a commission for an incompetent by reason of lunacy the inquiry is limited and confined by the statute (Code Civ. Pro. § 2335) to the question of incompotency at the time of the inquiry, and, therefore, a finding on an inquisition, that the insanity of the alleged incompetent existed at a date prior to the date of the inquiry, is not presumptive evidence of the fact.</p> <p>2. Upon the trial of an action in which the incompetency of a person making a contract with reference to real estate was in question, it was error to admit in evidence the findings of a jury in an inquisition of the incompetent to the effect that such incompetency dated back to a period prior to the time of the inquisition and previous to the execution of such contract. It was also error for the trial court to charge in effect that the decree upon the inquisition of lunacy was presumptive evidence of insanity at the time of the execution of the contract. Such a charge was in effect a diree tion of a verdict for the plaintiff.</p> <p>3. Where the plaintiff in such an action, the committee of the incompetent, was on his examination as a witness in his own behalf permitted to testify that a letter received by him from a physician two years prior to the inquisition, stated that his mother, who was the alleged incompetent, was in such a condition that she should be put in an asylum at once, such evidence was hearsay and incompetent, and its admission was erroneous.</p>

<p>Where there was an agreement between a lessor and a lessee that the former would pay to the latter an agreed amount for damages for delay in having the leased building ready for occupancy upon the termination of an action then pending between a contractor and the lessor, and in an action thereafter brought by the lessee against the lessor to enforce payment of the amount fixed by this agreement, the trial court determined upon the evidence, as a question of fact, that the word " terminate ” meant a decision and judgment in favor of the contractor in his action against the lessor, and this finding was not reversed and new findings by the Appellate Division having no evidence whatever to support them, the judgment of the Appellate Division reversing the judgment of the trial court, in favor of the lessee and against the lessor, must be reversed and the judgment for the lessor reinstated.</p>

<p>Appeal from a judgment of the Supreme Court, rendered December 22, 1917, at a Trial Term for the county of Schenectady, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The district attorney’s conduct was improper and prejudicial. (People v. Freeman, 203 N. Y. 267; People v. Molineux, 168 N. Y. 264; People v. Brown, 110 App. Div. 490; 188 N. Y. 554; People v. Cascone, 185 N. Y. 317; Rost v. B. H. R. R. Co., 10 App. Div. 477; Hoyt v. Davis Mfg. Co., 112 App. Div. 759; People v. Scanlon, 132 App. Div. 528; Smith v. L. V. R. R. Co., 177 N. Y. 379; People v. Fielding, 158 N. Y. 542; People v. Faber, 199 N. Y. 256.)</p> <p>The district attorney’s conduct was not improper or prejudicial. (Underhill on Crim. Ev., §§ 50, 90, 375; Bishop on Crim. Pro., § 151; Knickerbocker v. People, 43 N. Y. 177; People v. Buddensieck, 103 N. Y. 487.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department entered May 24,. 1918, modifying and affirming as modified an order of Special Term which granted a new trial of the action, refused to vacate the consent of the defendant to an order of reference therein and appointed a new referee to hear, try and determine the same.

<p>Condemnation proceedings — Rochester (city of) — certain provisions of charter for taking lands for municipal purposes outside of city do not afford the landowners the impartial tribunal required by law.</p> <p>1. Two fundamental principles underlie the exercise of the right of eminent domain. The one, the obligation to make just compensation for the property taken attaches to the exercise of the power to take it, even though it were not constitutionally created. The other, the legislature must provide an impartial and disinterested tribunal to ascertain the amount of the compensation and a reasonable opportunity for the parties interested to be heard before such tribunal.</p> <p>2. The empowerment of the common council of the city of Rochester (L. 1907, ch. 755, § 89 to conclusively determine that lands, which are without the city, are necessary for municipal purposes does not violate the provisions of the Federal Constitution that no person shall be deprived of property without due- process of law. Whether the public exigency requires the taking of private property for public use is a legislative question, the determination of which by the legislature is, generally speaking, final and conclusive. Whether the use for which such taking is authorized is a public use is' a judicial question for the determination of the court. This provision of the charter is valid.</p> <p>3. The requirement of the charter (§ 438) that if the real estate sought to be taken for public purposes is without the city one of the three commissioners, at least, must be a resident and freeholder of the city of Rochester, does not -make for impartiality in determining the compensation. The enactments (§§ 438, 442, 444, 446) that the commissioners must report to the common council; that the common council must assign a time for-hearing objections to the confirmation of the report, and at the time assigned must hear the allegations of all persons interested who appear, and may take proof in relation thereto from time to time, and may confirm, disapprove or reject the report; that any person aggrieved by the report or award of the commissioners may, within thirty days after the confirmation of the common council, appeal therefrom to the Appellate Division of the Supreme Court and must file the prescribed bond; that the city within thirty days after the disapproval of the report by the common council may appeal therefrom to the Appellate Division of the Supreme Court, and withholding that right from the landowners, do not afford the landowners the impartial tribunal required by law.</p>

<p>1. A cause of action inherently includes and comprehends, in the absence of restrictive language, the right to maintain an action upon the claim or matter which also is inherently included in it.</p> <p>2. TJnder the title subrogation to remedies of employees, section 29 of the Workmen’s Compensation Law (Cons. Laws, ch. 67, amd. L. 1916, ch.'622) as it stood prior to amendments (L. 1917, ch. 705, § 8) provided that if the dependents of an employee killed by the negligence or wrong of another .not in the same employ should elect to take compensation under that chapter, the cause of action against such other should be assigned to the state or insurance carrier liable for the payment of such compensation. Held, that this with other provisions of the section expresses that within the legislative mind and comprehension the section provided to the dependents of the employee a cruse of action, independent of and not that created by section 1902 of the Code of Civil Procedure for the negligently caused death, and that in ease the dependents elect to assign the cause of action, the assignment creates its ordinary and established effects. It transfers to and rests in the assignee the cause of action. If the assignment is to the state the cause of action is thereby made the property of the state; if to another the cause of action becomes by virtue of the assignment the property of that other. Held, further, that section 18 of article 1 of the State Constitution is not relevant to the determination of the rights arising through section 29 to the dependents of the deceased employee.</p>

<p>Partition — widow’s right to dower in rent collected after her husband’s death.</p> <p>1. When a widow elects to take a gross sum in satisfaction of her dower, she is entitled by virtue of her dower right to an interest in one-third of the rents collected after her husband’s death, and she should be allowed that sum in addition to her share of the proceeds of the sale of the property, based upon her expectancy of life.</p> <p>2. Where a widow who was a defendant in an action of partition claimed her dower interest and filed a consent to accept a gross sum in satisfaction thereof, she is entitled to receive one-third of the rents of the premises collected after the death of her husband, although she did not set up a claim to damages for withholding dower, and it is error to refuse to make such allowance to her in the partition action.</p>

<p>Trespass — evidence—when oral testimony admissible to show true location of boundary line between two pieces of real property.</p> <p>1. It is a well-established rule of law that parol evidence is admissible to apply a writing to its subject, and that where words of general description are used in a deed, oral evidence may be resorted to to locate the premises intended to be conveyed. Where the description of property is vague, uncertain and general, oral evidence is required to make it specific, and such evidence is not in contradiction of the contract but admissible to aid a jury in determining the application of the language of the contract to the particular land to which it refers.</p> <p>2. In this action, testimony was given to the effect that after a contract between plaintiff and defendant had been entered into by which defendant agreed to warrant and defend the title to wood and timber to be cut on certain premises of defendant by plaintiff, under which agreement the boundary fine could not be located by the description contained therein without the aid of a surveyor or of oral evidence, defendant said in substance that he would show plaintiff where the lines were, would point them out to him. The jury could have found and presumably did find that the defendant obtained a surveyor and after surveying the line in question, pointed it out to the plaintiff as so surveyed and located. The plaintiff cut the wood, timber and trees up to the line so pointed out and surveyed, but not beyond it. An action was commenced against him by the owners of the adjoining lands for trespass and it resulted in a judgment for the value of a few trees that he had cut and removed along but within the line as so located. This action is brought to recover from the defendant under the agreement with him the amount paid and expended by plaintiff in the trespass action. Held, that the evidence was properly admitted.</p>

<p>Execution — action for divorce — authority of attorney to issue execution upon judgment rendered in such action.</p> <p>An attorney clothed with general authority to prosecute an action for an agreed compensation for services, which' was paid, is authorized to issue an execution to collect the costs awarded in the judgment. The fact that the action was one for divorce or that a stated sum was agreed upon as compensation for services does not alter the general rule.</p>

<p>Pleading — sufficiency of complaint in action for money collected and received by defendant for benefit of plaintiff and not paid to plaintiff — appeal — when interlocutory judgment of Appellate Division is one of reversal, plaintiff cannot appeal directly therefrom to Court of Appeals.</p> <p>1. A complaint is sufficient which alleges in short and general form the receipt and collection by defendants of a sum of money in question for the benefit of plaintiff and that they retained and refused to payo over the same in spite of demand duly made.</p> <p>2. Where an interlocutory judgment of the Appellate Division is one of reversal, the plaintiff cannot appeal directly to this court from the final judgment subsequently entered at Special Term and on that appeal bring up for review the interlocutory judgment under the provisions of section 1336 of the Code of Civil Procedure. It is necessary to pursue the ordinary course and appeal again to the Appellate Division and from its judgment there rendered to this court. But under this course of procedure "it is essential if it is desired to review such an interlocutory judgment that it should be so specified in the notice of appeal. (Code Civ. Pro. § 1301.)</p>

November 18, 1915, 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.

<p>Negligence — action by tenant against landlord to recover for injuries caused by act of servant of contractor making repairs to building owned by landlord—when landlord not liable therefor.</p> <p>Where a workman employed by a contractor, who was engaged in making repairs to a tenement house, dislodged a board, lying upon the sill of a third-story window, which fell and struck a tenant as she was entering the house from the courtyard, the landlord is not hable to her for the injuries caused thereby. Although the landlord was under a duty toward his tenant to use reasonable care in keeping the courtyard safe, the place was not unsafe because a contractor was installing pipe and, therefore, he was not negligent in permitting tenants to cross the courtyard while the work was going on. -The landlord had no notice of the danger and had not authorized any work which might reasonably be expected to create the danger, and he is not liable for the careless act of the contractor’s servant. ('Paltey v. Egan, 200 N. Y. 83; Sciolaro v. Asch, 198 N. Y. 77, distinguished.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1916, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Islip (town of) — lands held by town in private, as distinguished from public, ownership — authority of trustees to lease land owned by town — construction of acts of legislature and resolution adopted at town meeting authorizing trustees to lease such lands.</p> <p>1. Where lands are held by a town in private, as distinguished from public, ownership, it needs no legislative authority to enable it to deal with them as its interests may require. It can devote them to the use of the inhabitants in common. It can convey them or lease them, and what the town can do it can authorize agents to do. (1 R. S. eh. 11, tit. 1, § 1, subd. 4.)</p> <p>2. Where a resolution passed by a town created a permanent plan for the management of town lands and authorized trustees to lease such lands no further authority from the state was needed.</p> <p>3. Such authority conferred by the town was not unlimited, although it would not permit the trustees to create unreasonable, unnecessary or unusual estates. The words conferring authority must be construed with reference to the circumstances under which they were used and the property to which they apply.</p> <p>4. A term of five years for beach lands with the option of four renewals of ten years each is cot on its face so unreasonable or unusual as to show as a matter of law a lack of authority on the part of trustees empowered to lease thu lands of a town.</p>

<p>Appeal from, an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1918, reversing in part an order of Special Term which denied a motion for an order directing payment of interest on an award in street opening proceedings. The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Supreme Court, rendered February 19, 1918, at a Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The trial court erred in its charge and refusal to charge as to the legal effect of the abandonment of the criminal enterprise by the defendant prior to the homicide. (Dolan v. People, 64 N. Y. 485; People v. Huter, 184 N. Y. 237; People v. Governale, 193 N. Y. 587; People v. Morse, 196 N. Y. 309; People v. Spohr, 206 N. Y. 521; People v. Patini, 208 N. Y. 180; People v. Marandi 213 N. Y. 606; People v. Young, 88 N. Y. Supp. 1063; Wharton on Homicide [3d ed.], 465, § 435; People v. Knapp, 26 Mich. 112; State v. Allen, 47 Conn. 121.) The so-called confession of the defendant was improperly procured and was improperly admitted in evidence. (Bram v. United States, 168 U. S. 183; U. S. v. Chapman, 4 Am. L. J. 440; Regina v. Bate, 11 Cox C. C. 686; Regina v. Fennell, L. R. 7 Q. B. D. 147; Regina v. Garner, 1 Den. Cr. Cas. 329; Rex v. Wild, 1 Moody Cr. Cas. 452; Regina v. Moore, 2 Den. Cr. Cas. 523; Regina v. Cheverton, 2 F. & F. 833.)</p> <p>The evidence established beyond a reasonable doubt that the deceased was killed in the commission óf a burglary and that the defendant was an active participant in the shooting. (Doan v. People, 64 N. Y. 485; People v. McElvaine, 125 N. Y. 596; People v. Meyer, 162 N. Y. 357; People v. Sullivan, 173 N. Y. 122; People v. Giro, 197 N. Y. 152; People v. Giusto, 206 N. Y. 67; People v. Johnston, 185 N. Y. 219; People v. Flanigan, 174 N. Y. 356; People v. Place, 157 N. Y. 584; People v. De Martini, 218 N. Y. 561.) Upon the undisputed evidence, the jury were warranted in convicting the defendant of murder in the first degree even though his denial that he actually discharged his pistol be accepted as true. (People v. Patini, 208 N. Y. 176; People v. Miles, 143 N. Y. 383; Dolan v. People, 64 N. Y. 485, 496; People v. Meyers, 162 N. Y. 357; Conrod v. State, 75 Ohio St. 52; Bissot v. State, 53 Ind. 408; State v. Brown, 7 Ore. 186; Wharton on Homicide [3d ed.], 186; People v. Bliven, 112 N. Y. 79; Commonwealth v. Knapp, 9 Pick. 496; Commonwealth v. Clune, 162 Mass. 206; People v. Repke, 103 Mich. 459; McCarney v. People, 83 N. Y. 413.) There is no proof that the defendant repented and abandoned the criminal enterprise. His testimony that he temporarily separated himself from Hughes Davis, without notice to him, after the burglary had been effected, and after the commission in his presence of overt acts of violence upon the deceased Samuel Eegensberg by Davis, did not relieve defendant from responsibility for Davis’ acts. Moreover, defendant admits that he afterwards rejoined 'the criminal confederacy. Hence the trial court was warranted in refusing to instruct the jury as requested by defendant’s counsel. (1 Whart. Cr. Law [11th ed.], 295; State v. McCahill, 72 Iowa 111; State v. Gray, 55 Kan. 135; 1 McClain Crim. Law, § 198; Jones v. State, 14 Ohio C. C. 35; State v. Allen, 47 Conn. 121; Rex v. Edmeads, 3 Car. & P. 390; Wharton on Homicide [3d ed.], 665, 666; State v. Gray, 19 Nev. 212; Sheppard v. State, 172 Ala. 363 ; State v. Forsha, 190 Mo. 296; Wilson v. United States, 82 S. W. Rep. 924.) The defendant’s statement or confession to the district attorney was properly received in evidence. (People v. McMahon, 15 N. Y. 384; People v. White, 176 N. Y. 331; People v. Rogers, 192 N. Y. 331; People v. Trybus, 219 N. Y. 18, 23; People v. Kurtz, 42 Hun 335; Ward v. People, 3 Hill 395, 6 Hill 144; Willett v. People, 27 Hun, 469, 92 N. Y. 29.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 10, 1915, modifying and affirming as modified 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>2. The captain of a barge sent to defendant’s dock to be loaded is impliedly invited to use the structure for lawful and accustomed purposes and it cannot be said as matter of law that in going ashore over it for his own purposes he was a mere licensee and that he used the pier at his own risk. A dismissal of his complaint, therefore, in an action to recover for injuries received through his falling into an unguarded opening in such pier, on the ground that the open hole concealed by the darkness was a danger which he was bound to avoid, is error.</p>

<p>Frauds (Statute of) — verbal promise to pay debt of another — when evidence insufficient to sustain claim that defendant became a principal debtor.</p> <p>1. When the primary debt continues to exist, the promise of another to pay the debt may be original or it may not be, but it is regarded as original only when the party sought to be charged clearly becomes, within the intention of the parties, a principal debtor primarily liable.</p> <p>2. A promise may still be collateral, when the promisor is under no present duty to pay, even though the new consideration moves to the promisor and is beneficial to him. The elements of beneficial interest and new consideration must be present to take the case out of the statute, but the inquiry remains whether the consideration is such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor.</p> <p>3. Plaintiff bases its action on a verbal promise by defendant to pay the debt of another. On examination of the evidence it appears, upon the application of the foregoing principles, that it is not sufficient to sustain the claim of plaintiff that defendant became a principal debtor; hence the promise was not sufficient to satisfy the Statute of Frauds.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 9, 1917, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 5, 1917, which reversed an order of Special Term vacating and annulling a judgment entered in favor of defendant. The nature of the action and the facts, so far as material, are stated in the opinion.

Gross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 27, 1915, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term. The nature of the action and the facts are stated in the opinion.

<p>Equity — misjoinder — independent causes of action against several defendants may not be consolidated into one cause of action in equity.</p> <p>Where among defendants there is neither community of right nor interest in the subject-matter of the action, nor community of interest in the questions of law and fact involved in the general controversy, the independent causes of action at law may not be consolidated into one cause of action in equity. Where several promissory notes were obtained from plaintiff through deceit, and were transferred to different defendants o by independent and separate transactions, and such defendants were joined in an action to have them adjudged .void, held, that neither the complaint nor the proof discloses an adequate cause for maintaining such an action in equity.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 13, 1918, modifying and affirming as modified a decree of the Richmond County Surrogate’s Court in a proceeding for discovery instituted under section 2675 of the Code of Civil Procedure by the executor of Jacob I. Housman, deceased.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Bills, notes and checks—promissory note given for purchase money on executory contract — when benefits of partial performance may be retained — transfer by indorsement of negotiable paper merely as payment of antecedent debt is transfer for value — fact not conclusive as to bona tides of transaction — question for jury — when partial failure of consideration absolute defense.</p> <p>I. A party may retain, without compensation; the benefits of a partial performance, where, from the nature of the contract, he must receive such benefits in advance of a full performance, and by its terms or just construction is under no obligation to pay until the performance is complete.</p> <p>2. Where a promissory note is given for the purchase money on an executory contract for the sale of lands or chattels, the law is the same as obtains in a ease where the only promise to pay is found in the contract of sale itself, provided the action is between the original parties.</p> <p>3. The Negotiable Instruments Law (Cons. L. ch. 38, § 51) provides that “ an antecedent or pre-existing debt constitutes value.” For the sake of uniformity New York has abrogated the contrary rule which had been in force since the year 1822, and thus brings the law of this state into harmony with that of the United States Supreme Court, (iCoddington v. Bay, 20 Johns. 637, overruled; Swift v. Tyson, 16 Pet. 1, followed.)</p> <p>4. While it is ordinarily said that the payment of value for.negotiable paper is a circumstance to be taken into account with other facts in determining the question of the bona fides of the transaction, and that when full value is paid that circumstance is entitled to great weight, the fact is not conclusive, particularly when it appears that the value given was merely credit on an old debt.</p> <p>5. In this action to recover upon certain promissory notes transferred to plaintiff by the payee before maturity the consideration for the notes was a piano and incidentals to be used in a voting contest by the defendant. Plaintiff furnished pianos to merchants on the order of the payee for such contests. It knew that it had refused to ship a piano to defendant on payee’s order when it took the notes and gave payee credit therefor on his general account. The circumstances would sustain a finding that by the simple test of honesty and good faith it became the duty of plaintiff to inquire as to the real situation between the payee of the notes in question and the defendants, and to ascertain whether the payee had broken his contract to furnish a piano to defendants. The question whether p'aintiff was a bona fide purchaser was one of fact for the jury, and it was error to strike out evidence of the dealings between the payee and plaintiff and defendants and to direct a verdict for plaintiff.</p> <p>6. Partial failure of consideration is not a defense pro tanto under section 54 of the Negotiable Instruments Law when the contract is entire and it is impossible to determine the price for which each article was sold.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1918, reversing an award of the state industrial commission made under the Workmen’s Compensation Law and dismissing the claim.</p>

order of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1918, reversing an award of the state industrial commission and dismissing the claim.

<p>Motion for leave to appeal to the Court of Appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 21, 1918, modifying and affirming as modified a decree of the Queens County Surrogate’s Court overruling objections to the accounts of the executors of Anna Van Vliet, deceased.</p>

Motion to dismiss an appeal by permission from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 12, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.

Leading up to the submission of said questions to the electors of said town at the last general election a petition in due form was filed with the town clerk asking for the submission of said questions at such election. Said town clerk thereupon duly filed with the county clerk of Oneida county a certified copy of such petition, but the last named official took no action thereon, and gave no notice, either by publication or posting, of the impending submission.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1917, which unanimously affirmed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings. Upon the parcel taken in this proceeding there had been dug a hole or shaft one hundred and seventeen feet deep, thirty-eight feet long from east to west and nineteen feet wide from south to north.

Plaintiff sued to recover $9,659.26, on the theory that she was entitled to be paid for 9,958 square yards of asphalt paving at the rate of ninety-seven cents a square yard.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 12, 1918, affirming an award of the state industrial commission made under the Workmen’s Compensation Law.</p>

Plaintiff sought to restrain the defendants from enforcing sections 116 and 117 of the Sanitary Code of the city of New York which regulate the sale of proprietary and patent medicines in that city and among other things require that “ The names of the ingredients of every such medicine, to which the therapeutic effects claimed are attributed, and the names of all' other ingredients, eexcpt such as are physiologically inactive, shall be registered in the department of health…

• Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 25, 1917, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 2, 1917, which affirmed an order of Special Term granting a motion by defendant, respondent, for judgment on the pleadings.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 12, 1918, which affirmed an order of Special Term directing that a writ of mandamus issue under section 57 of the Public Service Commissions Law requiring the defendant within two days to operate its cars in and between the cities of Buffalo, Niagara Falls and Lockport, for the carriage of passengers in such measure as to meet the reasonable demands of the traveling public.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 10, 1917, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Defendant had a country home on a small island off the north shore of Long Island. It was approached by a causeway.

The complaint alleged that plaintiff was struck by a swinging door located near the southwesterly corner of the defendant’s dry goods store at Broadway, near Ninth and Tenth streets, New York city; that the said door was suddenly swung against the plaintiff by the agency of a person or persons unknown to the plaintiff, due to the fact that the door could swing inwards as well as outwards, and that the corner of the counter past which the plaintiff was going at the time was…

By the modification of the order the defendant was required to pay to the plaintiff the referee’s and stenographer’s fees of the last reference. The appeal to this court is from so much of the order as affirms the appointment of a new referee. The following questions were certified: “ 1.

1907, ch. 755). The Appellate Division dismissed the proceedings on the ground that the provision of the statute requiring that one of the commissioners should be a resident and freeholder of the city of Rochester was unconstitutional.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 21, 1918, which affirmed an order of Special Term denying a motion to set aside the service of the summons and complaint, also motion to dismiss said appeal. Plaintiff attempted to get jurisdiction of defendant, a foreign corporation, by service upon one Aderenti, claiming that he was a managing agent within the state of New York.

The action was brought by plaintiffs, as stockholders of the old Equitable Gas Light' Company, to restrain the defendant (a consolidated corporation) from proceeding to acquire their stock in the Equitable Company (one of the consolidating companies), through appraisal proceedings instituted under section 8 of the Business Corporations Law, and to compel the defendant -to buy their stock at a valuation to be determined by the court.

Defendants, respondents, are sued as guarantors for the payment of a bond secured by a mortgage, and the question involved was whether the election of the holders of the mortgage, at the time of an attempted foreclosure, to declare the whole amount due, was irrevocable and inured to the benefit of respondents and could not be waived without their consent.

The complaint alleged a cause of action on a promissory note, made and delivered by the respondent Chas. M. Gray Marble and Slate Company, for value received, to the order of the defendant Feeney & Devanny Company, payable three months after date, and thereafter and before maturity, for value received, indorsed by Feeney & Devanny Company and Patrick H. Feeney and delivered to the plaintiff, appellant, which at maturity was unpaid and protested for non-payment.

The action was brought. to recover damages for the conversion of an undetermined number of shares of the common stock of the defendant Standard Plunger Elevator Company, the complaint alleging that on or about the 21st day of April, 1906,' plaintiff surrendered and delivered to defendants Woodin and Hoyt a certain voting trust certificate, upon which surrender and delivery he was entitled to receive the stock in question, but that the defendants appropriated to their own use…

This action was brought by the plaintiffs, as minority stockholders of the Home Alliance Realty Company; one of the defendants, to recover, upon its behalf, the sum of $14,000, from which it was alleged the corporation was divested, through a conspiracy conceived and executed by the defendants Nekarda and Orbach, and in which conspiracy the defendants Pressberger and Tenner were aiders and abettors.

Appeal by defendant Royal Company of New York from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 7, 1916, affirming so much of a judgment of Special Term as subordinated its claim under an assignment made to it by the defendant Acme Asphalt and Granite Paving Company of all the moneys due or to become due from the defendant the city of New York to the defendant Acme Asphalt and Granite Paving Company upon a…

The judgment in effect ejected the defendant from the possession of a piece of land in the city of New Rochelle, which piece, of land would be within the lines of Echo avenue, in such city, if continued southerly from Cedar road through the appellant’s property, upon the theory and allegation that such piece of land was and is a public highway, and that the defendant’s conceded possession and occupation of it is an illegal obstruction and incumbrance, constituting a public…

<p>Appeal — when order of modification by Appellate Division, in condemnation proceedings, not appealable to Court of Appeals.</p> <p>An order of the Appellate Division which modified an order of Special Term confirming the report of commissioners in condemnation proceedings by directing “ that the report be referred back to the same commissioners to ascertain the value ” of the interest of one of the parties and “ to award the amount to him,” is not a final order within the purview of the Constitution and of section 190 of the Code of Civil Procedure, and, therefore, this court is without jurisdiction' to entertain an appeal therefrom.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1916, reversing a judgment in favor of defendant, appellant, entered upon a dismissal of the complaint as to her and remitting the case to the Special Term to adjust the equities under section 45 of the Lien Law and to render judgment of foreclosure and sale.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 5,1918, affirming an award of the state industrial commission made under the Workmen’s Compensation Law.</p>