Volume 225 — New York Reports

The facts, so far as material, are stated in the opinion. The Appellate Division has wholly misconceived the power and duty of the courts to review the action of election officials. (Canst, of N. Y. art. II, § 6; Hearst v. Woelper, 183 N. Y. 274; Metz v. Maddox, 189 N. Y. 460; Tamney v. Atkins, 209 N. Y. 202; 2 High on Injunctions [4th ed.], § 1312; Code Civ. Pro. §§ 1983, 1948; Matter of Holle, 160 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1918, which affirmed an order of Special Term granting a motion for an order permitting examination of ballots cast for the office of governor in the counties of New York and Bronx at the general election held November 5, 1918.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The applicant is entitled to examine the ballots forthwith as a matter of right. There was no power in the court, to postpone the examination until after the issuance of the certificate of election. (Matter of Quinn, 220 N. Y. 623; Matter of Rush, 101 Misc. Rep. 261.)</p>

' Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 14, 1917, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting defendaht of a violation of section 162 of the Labor Law. 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 exclusion of paroi evidence of the warranty admitted by the pleadings was reversible error. (Thomas v. Scutt, 127 N. Y. 133; Studwell v. Bush Co., 126 App. Div. 818; 206 N. Y. 416; Getty v. Town of Hamlin, 46 Hun, 1; Dale v. Gilbert, 128 N. Y. 625; Chapin v. Dobson, 78 N. Y. 74; Lese v. Lamprecht, 196 N. Y. 32; Wigmore on Ev. § 2430; Vaughn Machine Co. v. Lighthouse, 64 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Defendant was in law liable under the rule of respondeat superior. (Maxmilian v. Mayor, 62 N. Y. 160; People ex rel. Croker v. Sturgis, 91 App. Div. 286; People ex rel. Clifford v. Scannel, 74 App. Div. 406; 173 N. Y. 606; People ex rel. Hart v. Fire Comrs., 82 N. Y. 358; People ex rel. Kent v. Fire Comrs., 100 N. Y. 82; Reed v. Met. S. Ry. Co., 58 App. Div. 87; Higgins v. W. U. Tel.

The nature of the action and the facts, so far as material, are stated in the opinion. On the evidence the questions of defendant’s negligence and plaintiff’s freedom from contributory negligence were for the jury. (Newson v. N. Y. C. R. R. Co., 29 N. Y. 385; Feeney v. Long Island R. Co., 116 N. Y. 375; Ernst v. H. R. R. R. Co., 35 N. Y. 9; Stevermann v. White, 16 J. & S. 526; Southe v. Binghamton Ry. Co., 168 App. Div. 605; Townsend v. Brooklyn Heights Ry. Co., 168 App.

The nature of the action and the facts, so far as material, are stated in the opinion. As to the first cause of action the trial justice' erred in refusing to submit to the jury, and in charging as a matter of law, that the article was defamatory; that it was applicable to plaintiff, and that as against the plaintiff corporation the article was libelous per se. (Denns v. N. Y. E. J. Pub.

<p>Title guaranty — when vendee who at time of execution of contract of sale knew of defect in title cannot recover against drawer of contract and of subsequent deed for failure to protect him — policy of insurance may define “loss” intended to be covered — when owner of real property may insure himself against defects in title of which he had knowledge — when dismissal of counterclaim pleading facts which would entitle insurer to reformation of policy is error.</p> <p>1. Where, in an action to recover for the alleged negligence of defendant, a title guarantee company, for error in drawing a contract for the purchase of real property and the subsequent deed, whereby the plaintiff, its employer, became liable to pay certain assessments, it appears by uncontradicted evidence that at the time the contract of sale was made the plaintiff knew of the assessments, the complaint is properly dismissed, since, knowing the facts, the negligence of the defendant, if there was any, in no way injured the plaintiff.</p> <p>2. While every policy of insurance is so far a contract of indemnity that the insured must possess an insurable interest and that wagers are prohibited, there is no fundamental objection to definition between the parties to an insurance contract of the loss which they intend to cover, so long as it is made in good faith and not as merely the cover of a wager.</p> <p>3. The words “ loss or damage ” in a policy insuring the owner of real property against loss by reason of defective title thereto and other incumbrances thereon can only mean damages caused to the owner by an existing defect in the title. Hence, it is error to dismiss the complaint in an action against the insurer to recover the amount of assessments paid by the insured because the latter knew that at the time title passed and the policy was dated the lien of such assessments had been perfected. Against the payment of these Hens the owners had a right to secure themselves and the mere knowledge by them of the defect did not constitute a defense.</p> <p>4. Where, however, undisputed evidence shows that both parties knew of the assessment and that the issuance of the poHcy was delayed and an agreement made that the particular assessment should not be excepted from the poHcy because of the promise of the plaintiffs that they would pay the same and have it canceled and thereafter the assessment was paid by the plaintiffs and the poHcy was issued but its date was given as 'before the payment, the defendant is entitled to a reformation of the poHcy so as to relieve it from paying this particular assessment, and where such a defense was pleaded as a counterclaim its dismissal was error.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The charge of the court erroneously held the defendant to a duty as matter of law to maintain a draft of seven feet of water in the uncompleted new channel. There was not even a question of fact as to such duty, and the plaintiff proved no negligence of defendant in this respect.

The nature of the action and the facts, so far as material, are stated in the opinion. The doctrine of implied warranty in the sale of food products has never been applied in this state to facts like those presented in the case at bar. (State v. Sturgis, 222 U. S. 315; Van Bracklin v. Fonda, 12 Johns. 467; Wright v. Hart, 18 Wend. 449; Divine v. McCormick, 50 Barb. 116; Burch v. Spencer, 15 Hun, 504; Moses v. Mead, 1 Denio, 378; Julien v. Laubenberger, 16 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. Section 107 of the Insurance Law does not require forms of riders to be filed or approved. (Nelson v. Traders Ins. Co., 181 N. Y. 472.) The validity of the war rider, being an integral part of the contract of insurance, is expressly recognized by section 107 of the Insurance Law, notwithstanding the fact that the rider was not filed or approved by the superintendent of insurance.

<p>Appeal—Constitutional questions give no right to appeal unless DIRECTLY INVOLVED.</p> <p>To entitle one to appeal from a unanimous order of the Appellate Division on the ground that a constitutional question is involved, it must be directly and necessarily involved.</p> <p>It was accordingly held, where the primary question litigated was the right of the appellant to a mandamus to examine the indictment against him, and the Appellate Division unanimously affirmed an order denying the application.on the discretionary ground, as it might, that the appellant had another remedy, that no appeal would lie to this court on the theory of a constitutional right to due process of law being involved. (Code Civ. Pro.; § 190.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 22, 1918, which affirmed an'order of Special Term granting a motion by defendant, respondent, for judgment on the pleadings.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment is contrary to law as plaintiff’s prospective profits upon new motion pictures never previously-produced are entirely too problematical and conjectural to be the subject of recovery.

The nature of the action and the facts, so far as material, are stated in the opinion. The agreement of September 1, 1911, and the confession of judgment securing it were illegal and void. (Lake v. Lake, 136 App. Div. 47; Wolkovisky v. Rapaport, 216 Mass. 48.) The appellant is entitled to relief so far as the contract is still executory. (Code Civ. Pro. § 1277; G. P. & R. Mfg. Co. v. Mayor, etc., 108 N. Y. 276; London & S. W. Bank, Ltd., v. White, 162 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 25, 1916, unanimously affirming a judgment in favor of defendant entered upon the report of a referee. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 27, 1918, 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 did not arise out of and in the course of the employment.

Appeal, by promission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 7, 1918, 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 accident to claimant’s husband did not arise out of and in the course of his employment; the claim should, therefore, have been dismissed.

The facts, so far as material, are stated in the opinion. All fighting fixtures of every description were included in the term, “ improvement of real property,” contained in the Lien Law in force at the time the lien herein was filed, because that law was, in effect, a re-enactment of the earlier Lien Law, and was intended to be as broad as, and to include all articles covered by, the earlier law, and such earlier law expressly included fighting fixtures of all kinds and in…

The nature of the action and the facts, so far as material, are stated in the opinion. There was no owner’s request or consent to the improvements, which is the basis of the liens, and, in fact, there was a written dissent by the owner to the improvements or alterations, unless security was furnished by the lessee. (Hartley v. Murtha, 36 App. Div. 196; Mitchell v. Dunmore Realty Co., 126 App. Div. 829; Powers v. Schlicht Power Co., 23 App.

upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which affirmed an interlocutory judgment of Special Term sustaining a demurrer to and directing dismissal of the complaint. The appeal brings up for review the interlocutory judgment. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 19, 1916, affirming a determination of the Appellate Term which affirmed a judgment of the City Court of the city of New York in favor of plaintiff entered upon a verdict. , The nature of the action and the facts, so far as material, are stated in the opinion. , The trough in question was not a “ vat ” or “ pan,” within the meaning of section…

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in refusing to charge the jury that the plaintiff had failed to perform the Hillsdale contract. And again it erred in refusing to charge the jury that if they found that the plaintiff had not fully performed the contract according to the plans and specifications, that then the plaintiff could not recover.

The action was brought to foréclose a mechanic’s hen. On November 15, 1914, the Keepsdry Construction Company made a contract with the trustees of public buildings of the state of New York for furnishing and equipping locker and document rooms and for repairs, furnishing and equipping of the assembly chamber in the capitol at Albany.

The nature of the action and the facts, so. far as material, are stated in the opinion. Privity of contract between plaintiff’s assignor and defendant was ■conclusively established. (McAdam on Landl. & Ten. [4th ed.] 889, § 247; Mayer v. Wylie, 43 Hun, 547; 122 N. Y. 663; Frank v. N. Y., etc., R. R. Co., 122 N. Y. 197; Dassori v. Yarek, 71 App. Div. 538; Zinwell v. Ilkowitz, 83 Misc.

<p>Death — insurance (life) — presumption of death arising from continuous absence of seven years — general rule and application thereof — evidence required to establish such presumption.</p> <p>1. While it is a general presumption in law that a person who has been continuously absent from his home or place of residence, and unheard from, or of, by those who, if he had been alive, would naturally have heard of him, through the period of seven years, is dead, the burden of establishing the facts which may, within reason, give rise to the presumption is upon the person invoking it. He must prove more than the mere fact of absence during the period, and must produce evidence to justify the inference that the death of the absentee is the probable reason why nothing is known about Mm. The proof should remove the reasonable probability of Ms being alive at the time.</p> <p>2. Whether or not the presumption of death arises from the evidence is almost always, of necessity, a question for the jury. Whenever, however, the evidence is without contradiction and incapable, whether without or with contradiction, of creating, in reasonable minds, • conflicting inferences, the question is one of law for the trial justice to decide.</p> <p>3. Where in an action brought by the beneficiary of a policy of life insurance, who is the mother of the insured, the plaintiff offered no direct evidence of Ms death, relying upon the presumption of death arising from Ms absence, unheard of, during more than seven years, and the unconflicting evidence produced by plaintiff shows that the alleged decedent had the defimte and fixed intention of not returmng to the home of Ms parents , but had formed the purpose of seeMng elsewhere the opportumty and location satisfactory to him and conducive to the acquisition of money, and none of the communications to Ms parents and other facts justify the inference that death is the .probable reason why nothing has been heard from, or of, Mm for seven years, the evidence does not uphold the presumption of death and a judgment for plaintiff entered upon the verdict of a jury cannot be sustained.</p>

The facts, so far as material, are stated in the opinion. The judgment and order of the Appellate Division reversing the judgment of conviction herein is properly appeal-able to this court. (People v. O’Brien, 164 N. Y. 57; People v. Calabur, 178 N. Y. 463; People v. Miller, 169 N. Y. 339; People v. Damron, 212 N. Y. 256; Code Cr.

The complaint alleged that on or about the 16th day of March, 1915, the village of Mechanicville entered into a contract with the plaintiff wherein and whereby the plaintiff agreed to render legal services to said corporation for the period of one year from that date, and for which services so to be rendered by him said corporation agreed to pay to the plaintiff the sum of seven hundred and fifty dollars; that the plaintiff thereupon entered upon the performance of said…

The facts, so far as material, are stated in the opinion. The legislature has paramount and supreme rate-making power, especially in the matter of gas rates, where there is no constitutional restriction. (Matter of Quinby, 223 N. Y. 261; R. C. G. L. Co. v. Town of Middletown, 59 N. Y. 228; People ex rel. N. Y. & N. S. T. Co. v. P. S. Comm., 175 App. Div. 872; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in receiving evidence tending to prove fraud. The action being for breach of contract it could not be changed into one for fraud. (Dalrymple v. Hillenbrand, 62 N. Y. 5; Stumpf v. Cohen, 78 Misc. Rep. 158; Tanenbaum v. Fed. Match Co., 189 N. Y. 75; Lindsay v. Mulqueen, 26 Hun, 485; Townsend v. G. Ins. Co., 39 Misc.

<p>(1.) Appeal—Non-unanimous decision of Appellate Division affirming a judgment of conviction—Court of Appeals must examine RECORD TO ASCERTAIN WHETHER THERE IS EVIDENCE TENDING TO SUPPORT VERDICT OF GUILTY.</p> <p>Where a decision of the Appellate Division affirming a judgment convicting a defendant of murder in the second degree is not unanimous the Court of Appeals must examine the record to ascertain, as a question of law, whether there is evidence tending to support the verdict of guilty, and also to ascertain whether any alleged error, raised by an exception at the trial, has validity.</p> <p>(2.) Same—Evidence—Erroneous reason for receiving competent and ADMISSIBLE EVIDENCE NOT SUFFICIENT GROUND FOR REVERSAL OF JUDGMENT.</p> <p>Where evidence is competent and admissible it is immaterial that an improper ground for receiving it was stated, and a judgment convicting a defendant of murder in the second degree will not be reversed for such alleged error.</p> <p>(3.) Same—When statements made by witness admissible as explanation OF THE CONDUCT AND ACTS OF THE WITNESS.</p> <p>Upon the trial of defendant herein a police officer who helped in the arrest of the defendant testified that, hearing a shot, he was running to the place from which the sound came and as he reached a street corner "somebody in the crowd hollered ‘He ran over Houston Street,’ ” and looking he saw the defendant running and followed him, overtaking 1dm as another officer stopped him. He found upon the ground near the defendant the pistol which was introduced in evidence. Defendant’s counsel objected to the statement of the witness that " ‘somebody in the crowd hollered,’ as incompetent, irrelevant and immaterial, hearsay in the absence of this defendant and not binding on the defendant.” The court overruled the objection on the ground that the testimony was part of the res gestae. Held, that the testimony, although hearsay, was competent, not as of the res gestae, but as part of the relevant explanation and description of the acts of the witness, in acquiring the testimony given by him.</p>

<p>Appeal from a judgment, entered May 31,1916, 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>It was the defendant’s duty to see that the landing place, where plaintiff was requested to drop by Golden, the superintendent, was made reasonably safe. This was an absolute duty which could not be delegated. (McGuire v. Bell Telephone Co., 167 N. Y. 211; Benzing v. Steinway & Sons, 101 N. Y. 552.) Where, as here, the master gives assurance of safety he and not the employee assumes the risk. (Span v. Ely, 8 Hun, 265.)</p> <p>The evidence failed to show any negligence on the part of the defendant or Mr. Golden in preparing the ground. (McGuire v. Bell Telephone Co., 167 N. Y. 208.) If there was any negligence it was that of Fish and Koch in preparing the ground; and defendant is not liable for their negligence in that detail of the work. (Citrone v. O’Rourke Engineering Co., 188 N. Y. 330; Hahn v. C. M. Opera Co., 126 App. Div. 815.) Mr. Golden’s declarations, testified to by the plaintiff, were mere matters of opinion, and liability on defendant’s part cannot be predicated thereon. (O’Brien v. Buffalo Furnace Co., 183 N. Y. 317; Pellegrino v. Smith Co., 176 App. Div. 930; Scott v. D., L. & W. R. R. Co., 148 App. Div. 699.)</p>

■ Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1916, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion. There was a sufficient compliance with the statutory requirements as to notice.

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 burden of proving defendant’s negligence was upon the plaintiff and in refusing to charge that there was no burden on the plaintiff to prove the defendant’s negligence. (Dowling v. Hasting, 211 N. Y. 199; Lerche v. Brasher, 104 N. Y. 157; Keteltas v. Myers, 19 N. Y. 231; Posner v. Rosenberg, 149 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant did everything that a reasonably careful and prudent man could have done under the circumstances and is, therefore, not liable for the plaintiff’s injury. (Bushtis v. C. C. Co., 128 App. Div. 780; 198 N. Y. 548; West v. B. M. Co., 128 N. W. Rep. 992.) Appellant was guilty of negligence in that it violated the provisions of the Labor Law (Cons. Laws, ch. 36, § 81).

The facts, so far as material, are stated in the opinion. An appeal properly lies to this court. Constitutional questions are involved. (Meigan v. Row, 166 App. Div. 175; 216 N. Y. 677; Halpern v. Sanjorasck Bros., 169 App. Div. 468; People ex rel. Buckbee v. Biggs, 171 App. Div. 373; Chandler v. Avery, 47 Hun, 9; People v. Calabur, 91 App. Div. 529; Wiemer v. Brambury, 30 Mich. 201; Stuart v. Palmer, 74 N. Y. 183; People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. Under the deed of trust made by her father, the defendant Elizabeth L> Hughes is a person in being who would have an immediate right to the possession of one-half of the trust estate on the determination of the precedent estate by the death of her father, and her interest, whether vested or contingent, is descendible, devisable and alienable in the same manner as an estate in possession.

The nature of the action and the facts, so far as material, are stated in the opinion. The policy in suit was duly assigned by the insured to the plaintiff in 1909 as collateral security for money and credit already loaned, and she thereby and thereupon took a vested interest in such policy good as against everyone but a prior assignee. (Cellery v. John Hancock Ins. Co., 57 App.

Supreme Court in the first judicial department, entered May 23, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term so far as appealed from. The nature of the action and the facts, so far as material, are stated in the opinion.

Wright, deceased. The legacy under review was intended for the Washington Heights Library and not the New York Public Library, Astor, Lenox and Tilden Foundations. This was testator’s intent as evidenced by his will and all the surrounding circumstances. (Matter of Thompson, 217 N. Y. 111; Matter of Briggs, 180 App.

, interposed by plaintiff upon the ground of insufficiency thereof as a defense, and a further demurrer to two additional separate defenses and counterclaims in the same answer, and awarding to John Hull, Jr., affirmative judgment on the counterclaims. Also, overruling demurrer interposed by plaintiff to a separate defense and counterclaim set out in the answer of the defendant Frank Hull, and awarding said defendant affirmative judgment for the amount of the counterclaim.

■ The nature of the action and the facts, so far as material, are stated.in the opinion. The trial court was right in deciding that the premises were not subject to a lien for the transfer tax on the other devises and legacies. (Matter of Swift, 137 N. Y. 77; Matter of Penfold, 216 N. Y. 163; Brown v. Lawrence Park Realty Co., 133 App. Div. 753; Ross on Inheritance Taxation, 4, § 4; 278, § 217; Matter of Title Guarantee & Trust Co., 159 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The contract was executory. (Matter of Tear Off Bottle Seal Co., 224 Fed. Repr. 492.) The contract is exactly analogous to a lease so far as the accrual of debts thereunder is concerned. (Thistle v. Jones, 123 App. Div. 40.) The debt for royalties accrued from period to period, exactly as debts for rent under a lease accrue as the rent reserved becomes payable from time to time.

<p>Appeal in each of the above-entitled actions from a judgment entered March 17, 1916, 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.. The first action was to recover for personal injuries alleged to have been occasioned plaintiff through the negligence of defendant. The second was to recover for the loss of a wife’s services due to such injuries.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The evidence required a submission to the jury. (Kassner v. Weintraub, 130 N. Y. Supp. 229; Golob v. Pasinsky, 178 N. Y. 458; Dollard v. Roberts, 130 N. Y. 269; Levy v. Roosevelt, 131 App. Div. 8; Pincus v. Schlechter, 167 App. Div. 361; Frank v. Simon, 109 App. Div. 38; Rubenstein v. Hudson, 86 N. Y. Supp. 750; Kassner v. Weintraub, 130 N. Y. Supp. 229; Abramowitz v. Schlessinger, 152 N. Y. Supp. 337; Obendorfer v. Hart, 145 N. Y. Supp. 50; Worthington v. Parker, 11 Daly, 545; Rauth v. Davenport, 60 Hun, 70; Fitch v. Armour, 27 J. & S. 413; Coleman v. Central Trust Co. of N. Y., 25 Misc. Rep. 295.) There was no variance between the pleading and the proof. (1 Nichols New York Practice, 1035; Disbrow v. Harris, 122 N. Y. 362; King v. McKellar, 109 N. Y. 215; Simpson v. Cowan, 56 Barb. 395; Abb. Brief on Pleadings [1st ed.], § 724; White v. Spencer, 14 N. Y. 247; Williams v. N. Y. & Q. C. R. Co., 97 App. Div. 133; Becker v. N. Y., L. E. & W. R. R. Co., 31 N. Y. S. R. 750; Powell v. Cohoes Ry. Co., 136 App. Div. 204; Sallie v. N. Y. Railway Co., 110 App. Div. 655; Turner v. Nassau Electric Co., 41 App. Div. 213; McCahill v. N. Y. Transportation Co., 201 N. Y. 221; Keen v. Village of Waterford, 130 N. Y. 192; Lyons v. Second Ave. Railway Co., 89 Hun, 374; Hurley v. N. Y. & Brooklyn Brewing Co., 13 App. Div. 167.)</p> <p>There was no notice to the landlord of the supposed defect, that the pipe which burst in its concealed position between the roof and the ceiling was not covered with insulating material. (Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Lopez v. Campbell, 163 N. Y. 340; People v. Rozezicz, 206 N. Y. 249; Lamb v. Union Ry. Co., 195 N. Y. 260; O’Gara v. Eisenlohr, 38 N. Y. 296.) As the landlord had no notice of the supposed defect, which was concealed, the complaint was properly dismissed. (Cohen v. Cotheal, 156 App. Div. 784; Kassner v. Weintraub, 130 N. Y. Supp. 229; Abramowitz v. Schlessinger, 152 N. Y. Supp. 337; Golob v. Pasinsky, 178 N. Y. 458; Dollard v. Roberts, 130 N. Y. 269; Pincus v. Schlechter, 167 App. Div. 361.) The trial court committed reversible error in holding that the plaintiff was entitled to prove that she had been struck and injured by a portion of the ceiling which fell. (A. B. & B. Co. v. Addicts, 19 Misc. Rep. 36; Wilkins v. Nassau N. D. Co., 98 App. Div. 130; Sheu v. Union R. Co., 112 App. Div. 239; Finnegan v. Robinson Co., 124 App. Div. 117; Murphy v. Milliken, 84 App. Div. 582.)</p>

Re-argument of an appeal from a judgment, entered September 30, 1915, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The nature of the action and the facts, so far as material, are stated in the opinion in this case reported in 223 New York, at page 298.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1917, which reversed an order of Special Term granting a motion for an injunction 'pendente lite. The following questions were certified: . “ 1. Is the agreement contained in the deed from Sutphen to Kleeberg of the premises which are the subject of this action, a covenant running with the land? “ 2.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 30, 1918, which reversed an order of Special Term granting a motion for a writ of prohibition. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 14, 1916, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Plaintiff’s assignor, knowing the name and identity of the principal, took judgment against the agent. The plaintiff cannot now have judgment. (Drennan v. Boice, 19 Misc. Rep. 641; Tuthill v. Wilson, 90 N. Y. 423; Kingsly v. Davis, 104 Mass. 178; Ideal Concrete Co. v. Bank, 159 App. Div. 344; Weil v. Raymond, 142 Mass. 206; Matlage v. Poole, 15 Hun, 556; Barrell v. Newby, 127 Fed. Rep. 656; Brennin v. Thompson, 33 Ont. L. R. 465; Ranger v. Thallman, 65 App. Div. 9.)</p> <p>The direction of a verdict in plaintiff’s favor by the trial court was not error. It appears without contradiction, first, that plaintiff’s assignor did not have full knowledge of all the facts when it entered into judgment against the agent and proved its claim in bankruptcy; second, that defendant misstated the situation to plaintiff’s assignor when called upon to state the facts. Under such circumstances the entry of the judgment and proof of -the claim in bankruptcy was not an election which released defendant. (Meeker v. Claghorn, 44 N. Y. 349; Coleman v. First Nat. Bank, 53 N. Y. 388; Cobb v. Knapp, 71 N. Y. 348; Sweeney v. Douglas Copper Co., 149 App. Div. 568; Remmel v. Townsend, 83 Hun, 353; Brown v. Reiman, 48 App. Div. 295; Knickerbocker Biscuit Co. v. Devoe, 81 Misc. Rep. 1; Merrill v. Pacific Transfer Co., 131 Cal. 582; Iron S. M. Co. v. Reynolds, 124 U. S. 374; Cleveland Woolen Mills v. Siebert, 81 Ala. 140; Atlas S. S. Co. v. Columbia Land Co., 102 Fed. Rep. 358.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The board of village trustees was authorized by statute to adopt the ordinance in question, and the provisions of the statute authorizing its adoption were complied with in all respects. (L. 1910, ch. 374, § 288; People v. Chapman, 88 Misc. Rep. 469; People v. Stevens, 13 Wend. 341; People v. Snyder, 90 App. Div. 422; People v. Meakim, 133 N. Y. 214; People ex rel.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 6, 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. The plaintiff did not establish any cause of action against the defendants. (Westbrook v. Miller, 98 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The testimony adduced in behalf of plaintiff made out a prima facie case, and the questions of the negligence of defendant and the freedom from contributory negligence of plaintiff were properly submitted to the jury. (American R. T. Co. v. Hess, 125 N. Y. 641; Hinman v. Clarke, 121 App. Div. 105; Western N. Y. & P. Traction Co. v. Stillman, 68 Misc. Rep. 546; 143 App.

<p>Appeal from a judgment, entered October 24, 1916, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint on the ground that the plaintiff failed to show actionable negligence in an action to recover for personal injuries.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant was guilty of negligence causing plaintiff’s injuries. (Donohue v. East River M. & L. Co., 224 N. Y. 149; Maloney v. Cunard Steamship Co., Ltd., 217 N. Y. 278; Faith v. N. Y. C. & H. R. R. R. Co., 109 App. Div. 222; 185 N. Y. 556; Connolly v. Hall & Grant Const. Co., 192 N. Y. 182; English v. Milliken Bros., Inc., 132 App. Div. 501; McGlynn v. Pennsylvania Steel Co., 144 App. Div. 343; Tamaseric v. Beckwith, 145 App. Div. 78; Baccelli v. New England Brick Co., 138 App. Div. 656; Palin v. Cary Brick Co., 133 App. Div. 483; Finklestein v. Kramer, 133 App. Div. 565; 197 N. Y. 594; Pepe v. Utica Pipe Foundry Co., 132 App. Div. 458; O’Brien v. Buffalo Furnace Co., 183 N. Y. 317; Doing v. N. Y., O. & W. Ry. Co., 151 N. Y. 579; Dowd v. N. Y., O. & W. Ry. Co., 170 N. Y. 459; Guilfoyle v. McDermott, 146 App. Div. 900; 205 N. Y. 557; Moon v. Coon Const. Co., 216 N. Y. 178.) The plaintiff was not guilty of contributory negligence and did not assume the risk. (Donohue v. E. R. M. & L. Co., 224 N. Y. 149; Maloney v. Cunard S. S. Co., 217 N. Y. 278; Seyford v. Southern Pacific Co., 216 N. Y. 613; Robinson v. Ocean S. S. Co., 162 App. Div. 169; Boyle v. Degnon-McLean Const. Co., 47 App. Div. 311; Tully v. N. Y. & T. S. S. Co., 10 App. Div. 463; 162 N. Y. 614; Caboni v. Gott, 149 App. Div. 440; Thompson v. Levering & Garrigues, 155 App. Div. 554; Graves v. Stickley Co., 125 App. Div. 132; 195 N. Y. 584.)</p> <p>It appears from the evidence in this case that the plaintiff was a man of vast experience in the operation of the dredge, including the work of removing the crane; that his injuries were sustained because he did not take ordinary precautions for his own safety, and that he assumed the risk. (Duke v. American Museum, 157 App. Div. 640; Hammond v. Union Bag & Paper Company, 151 App. Div. 776; 3 LaBatt on Master & Servant, § 925; Earl v. Clyde S. S. Co., 103 App. Div. 21; Watts v. Beard, 18 App. Div. 243; Bagley v. Consolidated Gas Co., 5 App. Div. 432; 160 N. Y. 695; Ludlow v. Groton Bridge Company, 11 App. Div. 452; Ozogar v. Pierce, 134 App. Div. 800; Brust v. Perkins Co., 113 App. Div. 633.) There was no defect in the condition of the ways, machinery or plant, and no negligence of a superintendent or person intrusted with authority over the plaintiff. (Gmaehle v. Rosenberg, 178 N. Y. 147; Simpson v. Foundation Company, 132 App. Div. 375; Vogel v. American Bridge Co., 180 N. Y. 373; Quinlan v. Lackawanna Steel Co., 107 App. Div. 176; Hope v. Scranton, 120 App. Div. 595.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It having been definitely decided by the Appellate Division that the agreement was made between Josiah Waller and his wife Melissa, the court has power to direct that its terms be carried out by the executor of Melissa, the survivor. (Edson v. Parsons, 155 N. Y. 555; Piper v. Howard, 107 N. Y. 82; Rastetter v. Hoenninger, 214 N. Y. 73; Gates v. Gates, 34 App.

■ The nature of the action and the facts, so far as material, are stated in the opinion. The amended complaint contains all of the essentials of a good cause of action for rescission. (Vail v. Reynolds, 118 N. Y. 297; Gould v. Cayuga Co. Nat. Bank, 86 N. Y. 75; Bosley v. N. M. Co., 123 N. Y. 550; Leary v. Geller, 224 N. Y. 56; East River Nat. Bank v. Columbia Trust Co., N. Y. L. J. June 28, 1918; Mack v. Latta, 178 N. Y. 525; Hooker, Corser & Mitchell Co. v. Hooker, 103 Misc.

<p>Pledgor and pledgee •— conversion — stock pledged to secure payment therefor — when dividends declared on stock are cash and should be applied on the indebtedness — sale of pledged stock with accumulated dividends thereon unlawful — rights and remedies of pledgor.</p> <p>1. Under ordinary circumstances it is the right of a pledgee of stock to collect dividends declared thereon and it is his duty to apply them to the reduction of the indebtedness for which the stock is held as security. He represents not only his own interests as pledgee but also holds a duty to the pledgor.</p> <p>2. Where dividends have been declared on stock but have not yet become payable a proper sale of the stock would necessarily be made with the forthcoming dividend still on it. But where dividends declared have been paid and have passed into the possession of the pledgee they are not a subject of sale.</p> <p>3. Plaintiff’s assignor subscribed for shares of the capital stock of the corporation of which defendant was president. He did not pay for the stock which was issued to him and in his name, but instead gave Ms notes to the corporation therefor and the stock was left with and held by the corporation as security for the payment of the notes. The corporation declared dividends upon tMs stock, and these dividends were for a time either paid to plaintiff’s assignor or applied on his indebtedness. Thereafter dividends declared on the stock, and wMch were represented by checks, were placed by the corporation in a special account and the checks held by it without application to such indebtedness until the dividends amounted to a considerable sum. Disagreements having arisen, plaintiff’s assignor was discharged from defendant’s employ and defendant by a notice signed in the name of the corporation notified the assignor that at a given time and place there would be sold the stock theretofore pledged “ together with the rights to uncollected dividends ” from a given date. Applying the dividends at their full amount and value the stock was sold for less than it was worth. Plaintiff’s rights were based upon an assignment to her by the pledgor, subsequent to tMs sale. Held, that the defendant was guilty of conversion. These dividends had been detached from the stock and had become cash or the eqmvalent of cash which could not lawfully be sold. His misconduct infected the sale of the pledged stock, wMch under proper conditions might have been sold. Inasmuch as part of the entire transaction was unlawful the whole of it necessarily becomes so. (Wheeler v. Newbould, 16 N. Y. 392, followed.)</p> <p>4. Defendant was chargeable with knowledge of the law wMch condemned the step wMch he was about to take and the pledgor did no act wMch enticed Mm to believe that the act was lawful or that his conduct would be accepted and acquiesced in. Neither was there any such delay of action by the pledgor or the plaintiff as to sustain a conclusion of law that there was acquiescence in what had been done arid a waiver of rights wMch might have existed.</p> <p>5. The real damages as the case now stands are- those which the pledgor suffered by reason of an improper and unlawful sale as the result of which there was realized a smaller sum than should have been realized for application on his indebtedness or for restoration to him in case there was a surplus over and above the indebtedness.</p>

Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 5, 1916, affirming a judgment in favor of defendant entered upon a verdict directed by the court. The nature of the actions and the facts, so far as material are stated in the opinion.

The facts, so far as material, are stated in the opinion. The court erred in refusing to charge this request: “ I request your Honor to charge that they cannot consider the testimony of Dr. Huber, or any part of it, as- being corroborating evidence in this case.” (Code Crim. Pro. § 399; Penal Law, §§ 2013, 2177; 3 Wigmore on Ev. §§ 2059-2062; People v. Farina, 134 App. Div. 110; People v. Cole, 134 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The charter gave the possession and control of the scow to the plaintiff. (Hagar v. Clark, 78 N. Y. 45; Anderson v. Boyer, 156 N. Y. 93; Bissell v. Torrey, 60 N. Y. 635; The Willie, 231 Fed. Rep. 865; Dailey v. Carroll, 248 Fed.

. • The nature of the action and the facts, so far as material, are stated in the opinion. If the plaintiff is to recover on the basis of estoppel, it must establish that it has been damaged and the extent of the damage and is entitled to no recovery in excess' of the actual damage; as no damage has been proved, the plaintiff is entitled to no recovery. (Deering v. Schuyler, 110 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division erred in holding that because the terms of plaintiff’s contract were that he was to receive payment of his commissions out of installments as received, that this action, being brought before the actual receipt of such installments, is premature.

<p>(1.) Motor vehicles*—Violation of statutes (Highway Law, oh. 30, § 290, sued. 3) requiring person who injures the person or property OP ANOTHER IN OPERATING AN AUTOMOBILE TO GIVE HIS NAME AND OTHER FACTS TO THE INJURED PERSON OR A DESIGNATED OFFICER.</p> <p>The legislature has directed that an appellate court, in a criminal case, shall give judgment without regard to technical errors or defects or exceptions which do not affect the substantial rights of the parties (Oode Grim. Pro., § 542), and where the jury, upon the trial of a defendant indicted for a crime, if governed by the rule of reason as laid down by the trial judge and guided by the light of human experience in determining the facts, could not have rendered a verdict other than a verdict for conviction, because the defendant’s own testimony, taken in connection with the conceded and uncontradieted facts, required such result, an exception to the admission of the declaration of a person injured by the unlawful act of defendant does not affect the substantial rights of the defendant.</p> <p>(2.) Same—Evidence—Bes gestae when declaration of injured person ADMISSIBLE- IN EVIDENCE UPON TRIAL OF DEFENDANT INDICTED FOR VIOLATION OF SAID STATUTE.</p> <p>Where upon the trial of a defendant who, in violation of the Highway Law (L. 1909, eh. 30, § 290, subd. 3, as amd. by L. 1910, ch. 374) and knowing that the automobile which he was operating had collided with a wagon throwing the driver thereof to the street and injuring him seriously, had nevertheless gone on without stopping and giving his name and other facts required by the statute to the injured person or to any police, or other, officer, the judgment of conviction should not be reversed because a witness, who had heard the sound of the collision and was looking out of the window when defendant drove away, and saw the injured man crawling to the sidewalk and heard him call for help and a doctor, was permitted to state what he said. The evidence was admissible because it was a part of the res gestae; the declaration was spontaneous and natural and the circumstances exclude the idea of fabrication.</p>

<p>Stock subscriptions — construction of agreement proposed to be entered into by a syndicate composed of subscribers of bonds to be issued to build a proposed railroad and the railroad promoters as managers of the proposed syndicate — when such agreement signed by only one subscriber for bonds does not authorize promoters to borrow money on strength of such subscription — when subscriber who is not liable for such loan may have agreement and subscription canceled.</p> <p>1. In the absence of estoppel the party who has given an authority in writing is right in asking that that authority be followed as it is stated, and not as the other parties thought he would be willing they should use it. Nothing can be added to or read into the agreement unless there be an ambiguity which gives play for judicial interpretation.</p> <p>2. Agreements to subscribe for the stock of a corporation to be formed presuppose the organization of the corporation before they become binding and enforceable. In the absence of express authority to borrow upon an individual subscription to buy bonds, the agreement to subscribe assumes the incorporation of the binding company and that it will not be enforceable until that time.</p> <p>3. In order to carry out a scheme to construct a proposed railway and acquire the stock and bonds of two railroads, one built and one projected, to be amalgamated into one system with the proposed railway, an agreement was proposed to be entered into by a syndicate composed of the subscribers for the bonds to be issued in order to finance the scheme and a firm of promoters as managers of the syndicate. The syndicate was to apply the proceeds of such bonds to the construction of the proposed railway and do all things its managers deemed fit to accomplish that purpose, including the right to arrange for advances to be made from time to time upon the security of the agreement for building the railroad. The plaintiff herein alone signed such agreement as a subscriber to a designated number of bonds, a small part of the number proposed to be issued. Upon these facts, it cannot be held that loans' were to be procured upon the strength of such agreement before the contemplated railway was incorporated or bonds issued or authorized to be issued.</p> <p>4. Where the managers of the proposed syndicate, without the knowledge of plaintiff, procured a loan upon their note as managers secured by the subscription agreement signed by plaintiff, part of which loan was used to repay another loan made by said trust company to said promoters over a month before the plaintiff signed the agreement, the plaintiff is not obligated under such subscription to reimburse the trust company for the loan to the promoters, who are insolvent, but is entitled to have the agreement canceled.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division erred in holding that private or other sidings comprehend all sidings. (Duanesburgh v. Jenkins, 40 Barb. 584; Matter of Hermance, 71 N. Y. 481; Allam v. Penn. R. R. Co., 183 Penn. St. 174; Bainbridge Grocery Co. v. Atlantic Coast Line, 8 Ga. App. 677; Nat. Refining Co. v. St. L., I. M. & S. Ry. Co., 237 Fed.

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

<p>Public schools — constitutional law — dissolution and consolidation of school districts — powers of district superintendent in such matters under the statute (Education Law, Cons. Laws, ch. 16, § 129) — provision of statute permitting appeals to state commissioner of education constitutional and valid and his decision on appeal from an order of consolidation not open to review in the courts.</p> <p>1. Under the statute (Education Law, Cons. Laws, eh. 16, § 129) a district superintendent may, without the consent of the districts, dissolve one or more school districts and may unite the territory thereof to any adjoining district, except a union free school district whose boundaries are coterminous with the boundaries of an incorporated village or city. A distinction is made in the Education Law between the alteration of the boundaries of a school district and the dissolution, reformation and consolidation of districts (§§ 123-129).</p> <p>2. Section 890 (formerly 880) of the Education Law, permitting appeals to the state commissioner of education and maldng his decision on such appeals final and conclusive, is constitutional and valid. The purpose of this statute is to put all controversies over school matters in his charge and to remove them, as far as practicable, from the courts, and hence, a decision of the state commissioner of education on an appeal from an order of consolidation is not open to review in the courts.</p> <p>3. Where two school districts in the town of Oyster Bay were dissolved and united "with another district, the fact that one of those districts is an island separated from tho mainland and the district with which it is united, by the waters of Oyster bay, from half a mile to about a mile wide, which is a part of Long Island sound, does not prevent the consolidation. School districts may be considered as adjoining for school purposes even when divided by creeks or other natural boundaries.</p> <p>4. Where the determination of the district superintendent, in such case, was made after examination of all the facts and circumstances, it cannot be held to be arbitrary or without a basis of jurisdiction upon the law and the facts and the court will not set aside his determination at the instance of a subordinate school officer who has first subjected himself by appeal to the jurisdiction and authority of the commissioner of education and only sought relief from the courts after his failure to succeed in the proceeding specially designed to settle controversies in school matters.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1918, which afíirmed an order of Special. Term denying a motion, by defendant, for an order overruling a demurrer to a defense set up in the answer and for judgment on the pleadings. The action is brought to recover on five similar causes of action.

<p>Practice — special appearance — demand for copy of the complaint in an action is not an appearance, either general or special —• motion to dismiss complaint for failure to serve denied.</p> <p>1. A defendant may appear specially in an action only for the purpose of raising the question whether the court has obtained jurisdiction over him personally or through his property.</p> <p>2. A demand for a copy of the complaint is not an appearance, either general or special. Defendant’s general appearance can be made only in the manner indicated in section 421 of the Code of Civil Procedure.</p> <p>3. A defendant who has appeared specially for the purpose of obtaining a copy of the complaint is not in a position to move to dismiss the complaint if no complaint is served. (§§ 479, 480.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in its ruling on the construction of the agreement alleged in the first cause of action and in dismissing the complaint on the merits at the close of plaintiff’s evidence. (Richardson Press v. Vandergrift, 165 App. Div. 180; Fleischman v. Furgueson, 223 N. Y. 235; Fulmer v. Southern Ry.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1916, which reversed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of plaintiff and granting a new trial and affirmed said judgment. 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. Carver’s thefts were the proximate cause of plaintiffs’ liability to its clients. (Lowery v. Western Union Tel.

Plaintiff while riding on Bedford, avenue in the borough of Brooklyn was run down and injured by an automobile owned by the city of New York, and operated by the fire department of the city of New York. The defendant, then fire commissioner of the city of New York, was using the car to go from 'fire«headquarters in New York to inspect new fire houses in Brooklyn, and returning therefrom to attend a presentation of medals.

Plaintiff was a subcontractor of the defendant Fort Masonry Company which by its answer set up a claim for foreclosure of a mechanic’s hen filed by it. The answer of the defendants, appellants, the owners, denied that the general contractor had substantially performed its contract and as a separate defense alleged the execution by said contractor of an agreement of indemnity which it had failed to perform.

The complaint alleged that while plaintiff was a passenger on one of defendant’s vessels it negligently permitted soot and cinders to be emitted from the urnoke stack and that a particle entering plaintiff’s eye caused inflammation resulting in loss of sight.

A contractor in the city of New York as a condition to a license to use explosives furnished a bond with the defendant, respondent, as surety conditioned for the payment of any “ loss, damage or injury resulting to persons or property ” from explosives. Plaintiff’s intestate was killed September 11,1909, as the result of a blast, and on January 30, 1912, this action was commenced to recover for his death.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 2, 1918, modifying and affirming as modified a judgment entered upon the report of a referee bringing up for review intermediate orders. The motion was made upon the ground that the Court of Appeals had no jurisdiction to entertain the appeal.

Motion to dismiss an appeal from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered May 3, 1918, the first of which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer and the second of which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and granted said motion.

1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover commissions on the sale of certain real property.

in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was brought in the name of plaintiff church for a perpetual injunction restraining the defendants from interfering with “ plaintiff, its trustees and members ” in the holding of services in a portion of the church building belonging to plaintiff corporation and for damages.

The complaint alleged that on or about September 5, 1912, defendant employed plaintiff as a theatrical performer for a period of fifty-two weeks and promised to pay therefor; that after the 1st day of February, 1913, the defendant refused to allow plaintiff to further perform and refused to pay him any salary whatever.

The action was upon a bond given by the defendant as surety for the performance of a contract between the plaintiff and one John Barba, for the rough and finished carpenter work necessary for the erection of an apartment house known as “ The Riviera ” on Riverside Drive between One Hundred and Fifty-sixth and One Hundred and Fifty-seventh streets, borough of Manhattan, New York city, to recover the expense and for damages for. delay alleged to have been incurred by the…

It appeared that while plaintiff was riding in a carriage it was struck by a motor truck driven by one Bowman, who was in the general employment of the defendant and was sent by the defendant to deliver a motor truck to Winfield Pugsley at Peekskill, and to remain there for a week to demonstrate the truck and show Pugsley’s man how to operate it, in pursuance of an agreement made between Pugsley and the defendant at the time Pugsley executed the contract for the purchase of…

<p>Application for compensation of counsel (See 224 N. Y. 463.)</p>

The trial court also dismissed a cross demand made by the defendant, appellant, against such defendants, respondents. This action was brought to enforce the statutory liability of the stockholders of the Northern Bank of New York.