Volume 226 — New York Reports

<p>Libel — damages — when the reasonable expense of publishing denials of the truth of a libelous article to minimize its effect may be alleged and upon sufficient proof thereof and of the libel be recovered — erroneous decision striking such allegations from the complaint in an action for libel.</p> <p>1. One who has been injured either in his person or property by the wrongful act or default of another, not involving intentional injury to or invasion of the rights of person or property, is under an obligatory duty to make a reasonable effort to minimize the damages liable to result from such injury, and if he does not make such reasonable effort he will be debarred from recovering for those additional damages which result from such failure.</p> <p>2. It is a corollary to this rule of duty not only that the injured party who makes a successful effort to avoid or reduce damages will be allowed to recover the expenses necessarily incurred in so doing, but also that he will be allowed to recover the expenses of a proper effort even though it proves unsuccessful. The effort must be made in good faith, it must be conducted with reasonable skill, prudence and efficiency, it must be reasonably warranted by and proportioned to the injury and consequences to be averted, and it must be made under a belief reasonably justified that it will avoid or reduce the damages otherwise to be apprehended from the wrong complained of.</p> <p>3. The party injured by a libelous article should be allowed at the risk of the wrongdoer, although not compelled, to attempt by a reasonable and proper, effort to prevent damages liable to result from the wrongful act which has been committed against him. One who publishes an article concerning a corporation which so seriously impugns its methods of business that damages will be presumed should be held chargeable with the expense of a proper effort to avert them.</p> <p>4. In this action for libel plaintiff is seeking to recover as part of its damages certain expenses incurred in publishing denials of the truth of the offending article for the purpose of averting and minimizing its damages. On motion these allegations were stricken out of the complaint as irrelevant on the theory that plaintiff could not recover such damages. Assuming for the purposes of this appeal, without deciding, that the article is libelous per se, a jury might be allowed to say that the acts alleged to have been performed by plaintiff constituted a proper, reasonable and permissible effort to offset the harm and avert the damages threatened by defendants’ alleged wrongful act.</p>

fourth judicial department, entered June 23, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Insurance (liability) — subrogation — merger of corporations — corporation merged with another — when the resulting corporation is subrogated to the rights of the merged company under a policy of insurance against liability for accidents — when a defense that an action is barred by the Statute of Limitations is waived by the defendant.</p> <p>Plaintiff, under the provisions of the Stock Corporation Law, under its corporate name, merged two additional corporations. Held, 1. That the plaintiff, under the statute, was not liable for the debts of the merged corporations.</p> <p>2. Upon payment of a judgment by plaintiff recovered against it in an action to impress upon the property received by it from one of the merged corporations the amount of a judgment recovered against the latter corporation by a third person, plaintiff became subrogated to all rights and remedies of the merged corporation against defendant under the terms of a policy of insurance issued to said corporation and entitled to recover thereon.</p> <p>3. The limitation of time for the commencement of an action provided for in the policy was waived by defendant.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 12, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment, entered December 1, 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>

Plaintiff was executive clerk in the office of the president of the borough of Queens in the city, of New York. He had served a term in the volunteer fire department of Long Island City and was wrongfully removed from his position by the defendant, the president of the borough, for political reasons and without a hearing, and the position was filled by the appointment of another. (Civil Service Law [Cons.

<p>Sale — rescission of contract of sale and retaking of goods after bankruptcy of purchaser — election of remedies — action to recover from purchaser, discharged in bankruptcy, purchase price of goods not taken — Statute of Limitations — when bankruptcy proceeding does not stop running of statute.</p> <p>1. An action to rescind a contract of sale on the ground of fraud and to recover goods alleged to have been sold in reliance upon fraudulent representations, with full knowledge of all the facts, constitutes an election of remedies and is inconsistent with an action on the contract-</p> <p>2. Neither the assignee nor the trustee in bankruptcy has power to represent the bankrupt except for the purpose of the Bankruptcy Act. Neither his duty nor power includes authority to promise that the bankrupt will pay the residue of the debt, and a payment by him on account of a claim against the bankrupt is not such an acknowledgment of the debt as will stop the running of the Statute of Limitations.</p> <p>3. The present Bankruptcy Act does not contain a provision restraining a creditor from pursuing his claim against a bankrupt debtor until the question of his discharge has been determined, and hence the commencement of the bankruptcy proceeding does not stop or toll the running of the Statute of Limitations, nor is the running of the statute affected by the allowance of the claim in the bankruptcy proceeding.</p> <p>4. Where a seller of merchandise, on four months’ credit, elects to rescind each and every sale made to the purchasers and, in a bankruptcy proceeding, sustains its claim that title did not pass and regains possession of part of the merchandise, it cannot, in an action brought more than six years after the date of the last sale, recover the purchase price of goods not retaken which were purchased within six years and four months prior to the commencement of such action. It cannot recover upon the express contract of sale which it has rescinded, and rescission of the contract included a rescission of the terms of credit which were a part thereof. The action, therefore, is barred by the Statute of Limitations. The payment of dividends on plaintiff’s claim by the trustee in bankruptcy is not in effect an acknowledgment of the debt by the defendants and a promise to pay it, nor did the institution of the bankruptcy proceedings stop or toll the running of the Statute of Limitations, nor was the allowance of plaintiff’s claim by the trustee in bankruptcy an adjudication binding upon the defendants as parties in the bankruptcy proceeding.</p>

<p>Condemnation proceedings — when error for Appellate Division to strike out damages altogether.</p> <p>Where the report of commissioners of appraisal in condemnation proceedings fixes the value of land taken and the damage done to the remainder of the tract, it is error for the Appellate Division to modify the report by striking.» out altogether the damages awarded. If it is dissatisfied with the report, it should direct a new appraisal.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 9, 1919, reversing what it considered a determination of the state industrial commission.</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 first judicial department, entered July 11, 1918, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the comptroller of the city of New York to audit the payroll of the petitioner containing an increase in his salary as Supreme Court attendant.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 8, 1918, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to record a certain deed. The respondent refused to record the deed upon the ground that it was not properly acknowledged. The deed purported to be made by four grantors.

<p>Libel — demurrer — defense that statements of alleged libel were true — when alleged libelous statements are clear and unambiguous their meaning, cannot be extended by innuendo — when demurrer to such defense cannot be sustained.</p> <p>1. The libel law is not a system of technicalities, but reasonable regulations whereby the publ c may be furnished news and information, but not false stories. When the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel no legal harm has been done.</p> <p>. 2. The office of an innuendo is to explain what has already been expressed, but not to enlarge or change the sense of the words used. When the publication complained of is libelous per se no innuendo is necessary, and, if the innuendo alleged is not borne out by the words, it may be treated as surplusage and a recovery had on the words themselves.</p> <p>3. The defendant published in a newspaper under the headline “ Public School Teachers’ List Is Announced,” the following matter concerning the plaintiff: ‘ ‘ Miss Florence Cafferty, Supervisor of Music, charged with * * * incompetence by Superintendent Kelly is another of those not appointed.” The defendant pleaded that the words were true and stated somewhat in detail five things wherein the plaintiff had shown herself to be unqualified, unfitted, and without training and equipment to intelligently and efficiently perform her duties as supervisor of music in the public schools. Held, that plaintiff was charged with incompetence as supervisor of music and not as a teacher of music. As these words were clear and unambiguous their meaning cannot be extended as was attempted to be done by an innuendo, and the attempted justification met these charges fully and completely.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1917, which affirmed so much of an order of Special Term as overruled a demurrer to the first defense set up in the answer and reversed so much of said order as sustained a demurrer to the second defense. The following questions were certified: “1.

<p>Nonsuit — dismissal of action tried by court without jury without making findings of fact — such dismissal a mere nonsuit not on the merits.</p> <p>Where'in an "action tried by the court without a jury, the trial justice made no findings of fact, although the facts were in dispute, but dismissed the complaint, the judgment entered on such decision is a mere nonsuit. The dismissal of the complaint was not on the merits and was improper.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 19, 1919, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to receive and file certain nominations for town offices.</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 10, 1917, affirming a judgment in favor of plaintiff 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>Trusts — trust containing provision for a wife and family and other provisions suspending absolute ownership beyond two lives in being — such provisions may be separated and the first declared valid, the others invalid — when trustee may be restrained from using any part of trust fund without giving notice and security to the beneficiary.</p> <p>1. The Supreme Court has jurisdiction to remove, in its discretion, a trustee who has violated or threatens to violate his trust, or who is insolvent, or whose insolvency is apprehended, or who for any other cause shall be deemed to be an unsuitable person to execute the trust, and unless the discretion has been abused it is not subject to revision in the Court of Appeals. This power includes the power to impose terms upon which a removal will be refused.</p> <p>2. A husband and wife executed an agreement with a trust company “ to provide against the contingencies of business, and to provide further for the welfare of their two daughters,” and in order to create a fund for that purpose the husband transferred to the trust company certain promissory notes and the family residence which was to continue to be used as a family home; the income of the fund to be used to support the family. The husband was to retain the management of the fund as long as he lived and after his death the trust company was to manage it and pay the income to the wife for her support and that of the daughters. After both parents were dead the fund was to be divided into two parts, one for each daughter, and the principal paid to them as they respectively attained the age of thirty-five years. In the event of the death of either before arriving at that age it was to go to her issue, and if there was no issue then to the other daughter, or to her issue, and if there were none then to the heirs of the founder of the trust. Thereafter one of the daughters died under the age of thirty-five years. The husband subsequently abandoned his wife, moved to another state and the wife procured a decree of separation. This action is brought by the wife for an accounting and for the preservation of the trust estate. Held, that the trusts for the daughters after the death of the father and mother are void and must be so held despite the fact that the founder of the trusts admitted their validity, but in view of the dual purpose of the trust deed, first to maintain the family as a unit, and afterwards to support the daughters separately, the trust should be severed and the primary provision for the. support of the family sustained as valid. Held, further, that notwithstanding the husband, as the creator of the trust, had reserved to himself the broadest rights of management during his lifetime, in view of the changed condition of the family, his threat to use the principal in payment of his debts and other facts showing he had become an unsuitable trustee, the court may restrain his powers as such trustee and require him to give notice and security if he desires to use or invest the tru,-t funds in securities other than those in which trustees are authorized to invest.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 14, 1917, which reversed an order of Special Term excluding real property of the Nassau Electric Railroad Company from the lands sought to be condemned in this proceeding.

<p>Contracts — Statute of Frauds — action to recover balance due upon contract of employment and for wrongful discharge — when letters from employer to employee stating terms of employment constitute memorandum of contract within meaning of Statute of Frauds.</p> <p>1. The memorandum, of a contract not to be performed within a year, required by the Statute of Frauds (Personal Property Law, § 31; Cons. Laws, ch. 41), does not have to be in one document. It may be pieced together out of separate writings, connected with one another, either expressly or by the internal evidence of subject-matter and occasion. It is not even necessary that they be writings from the promisor to the promisee. They may be from the promisor to his own agent.</p> <p>2. Where, in an action to recover for wrongful discharge, the evidence shows that at the time plaintiff entered the employment of the. defendants they wrote to him that his employment was to continue for two years from a specified date at a designated salary and at once gave written notice to them salesmen that plaintiff was to become their sales manager and he served in this capacity for two years, supervising and directing the salesmen and occupying a position of general supervision, the defendants being his sole superiors, and at the end of this term there was a verbal renewal of the employment for three years, but at a larger compensation, and thereafter at the request of the plaintiff the defendants gave him a written memorandum stating, in substance, that the arrangement theretofore made continues in force at a stated salary up to the completion of the three years, but subsequently defendants appointed another as sales manager and directed plaintiff to report to him and to attend only to a designated branch of the business, such evidence is competent and sufficient to sustain a finding by the jury that plaintiff was employed as sales manager for defendants and that they removed Mm from that position when they changed his powers and duties.</p>

<p>Real property — power to sell not power to exchange— " attorney employed to search title to real property guilty of negligence in failing to detect flaw in title — measure of damages.</p> <p>1. A power to sell and distribute the proceeds of real property is not a power to exchange, and, therefore, where an executor acting under such a power conveys his testator’s interest in land in exchange for another parcel there is a flaw in the title of the land so conveyed.</p> <p>2. Where, thereafter, an attorney is employed to search the title of said premises and he makes no mention of the defect to his clients, but permits them to complete their purchase on the assumption that the record title is perfect, he is guilty of negligence and does not acquit himself thereof by showing that evidence could have been collected proving adverse possession for more than fifty years, thus curing the defect in the record title. He must show that such evidence was collected. Until that duty had been fulfilled the title was unmarketable.</p> <p>3. In an action brought by the clients against the attorney to recover damages resulting from his negligence, the attorney fcr the first time produced evidence tending to prove title by adverse possession. Held, that even in such circumstances the damages were not simply nominal, but that the plaintiffs might at least recover expenses incurred in connection with an attempted resale which failed because of the defendant’s failure to procure for his clients a marketable title.</p>

<p>Appeal from, a judgment entered July 19, 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.</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 entered May 21, 1917, 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>Master and servant — negligence — injury to workman by fall of stone from wall — when failure of. foreman to make examination evidence of negligence.</p> <p>Where it appears, in an action by a workman against employer under the Labor Law, that plaintiff, who was excavating for the foundation of a building, called the attention of defendant’s foreman to a stone in the bank about which there were cracks, two to three inches wide, and the foreman without making an examination told him that there was no danger and to go on with Ms work, and half an hour later the stone fell erusMng plaintiff’s hand, it was error for the Appellate Division to reverse the judgment for plaintiff, upon the ground that the foreman’s conduct was evidence not of negligence but at the utmost of error of judgment. A jury might fairly find that the foreman, however honest his error, had failed in Ms duty of reasonable inspection. Neither is plaintiff chargeable as a matter of law with contributory negligence. He relied upon the judgment of his superior who had been engaged in the business upwards of sixteen years and whether his reliance was reasonable was a question for the jury. j</p>

<p>Where plaintiff, who was driving a one-horse truck after dark but in a lighted street, attempted to cross a street car track by a long turn so as to head in the opposite direction, with an approaching car two hundred feet away, he had the right to assume that it was coming at a reasonable speed and under reasonable control, and it was error, in his action to recover for injuries caused by the car striking his wagon, to dismiss the complaint as matter of law because he failed to observe the car as it approached him from behind as he made the turn. The question whether he was negligent or his testimony so incredible that it ought to be disregarded was for the jury. Moreover, it cannot be said, as a matter of law, that there was no negligence on the part of the motorman, who, seeing the truck two hundred feet ahead of him, approached it at a speed of eighteen or twenty miles an hour and ran it down without any attempt to stop the car which could have been stopped within fifty feet.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1917, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee.</p> <p>Pasquale Pati and Salvatore Pati were engaged in business as partners under the firm name of Pasquale Pati & Son in selling steamship and railroad tickets for transportation to and from foreign countries and in conjunction with said business carried on the business of receiving deposits of money for the purpose of transmitting the same or the equivalent thereof to foreign countries.</p> <p>On August 8, 1907, they gave a bond of $15,000, pursuant to the provisions of chapter 185 of the Laws of 1907, and the defendant became surety thereon. The bond provides: i</p> <p>“ That if the above bounden Pasquale Pati and Salvatore Pati shall faithfully and diligently hold and transmit any and all moneys or the equivalent thereof which shall be delivered to it or them for transmission to a foreign country or countries as provided by said chapter 185 of the Laws of 1907, and duly account for and properly pay over all moneys or the equivalent thereof received by him as aforesaid, then the obligation to be void, otherwise to remain in full force and virtue. In default thereof the parties hereto will pay all damages, costs and expenses resulting from such default not exceeding the sum above specified.”</p> <p>The plaintiff and others delivered to said Pasquale Pati & Son sums of money for the sole and express purpose of transmitting the same or the equivalent thereof to various persons or corporations in the kingdom of Italy. • Said Pasquale Pati & Son did not forward such sums of money or the equivalent thereof to the persons or corporations named in the kingdom of Italy, but appropriated the same to their own personal use. On or about the 23d day of March, 1908, the said Pasquale Pati and his son absconded and disappeared and their whereabouts have not since been known or discoverable. On that day they were adjudged involuntary bankrupts. The amount so misappropriated by the said Pasquale Pati & Son exceeds $70,000.</p> <p>This action was brought on July 9,1913 (over five years after said bankruptcy), to have the plaintiff's claim adjudged valid against the defendant and to have it adjudged to pay the same. It was also brought to require all other creditors similarly situated to come into the action and to prove their claims that the defendant may pay $15,000, the amount of said bond, and the interest thereon, ratably to the plaintiff and such other creditors.</p> <p>A referee was duly appointed in the action and a notice was duly published as provided by section 786 of the Code of Civil Procedure requiring all persons having claims against the said bankrupts and upon the bond of the defendant to present the same to the referee. Judgment was entered herein on the 15th day of May, 1916, adjudging the amount due and unpaid by the said Pasquale Pati & Son, for money appropriated as aforesaid, to the plaintiff and others as specifically set forth in said judgment, and the defendant was adjudged to pay the amount of its bond with interest thereon from the date of the bankruptcy of Pasquale Pati & Son to the plaintiff and others pro rata in accordance with the •amounts of their claims respectively. On appeal by the defendant from said judgment to the Appellate Division it was modified by striking therefrom the amount of interest included therein, and as so modified affirmed.</p>

<p>2. While delay in the commencement of an action may be considered by a jury as a circumstance bearing upon the merits of a plaintiff’s claim, the plaintiff is not required to furnish direct evidence showing an excuse for failure to commence the action at an earlier day, where the action was commenced within the statutory time.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 25, 1918, which affirmed an order of Special Term granting a motion by defendants for judgment in their favor upon the pleadings and directing a dismissal of the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 25, 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>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 17, 1917, which reversed a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of plaintiff, entered upon a verdict and granted a new trial.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 31, 1919, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus commanding the defendant to grant to the relator a permit for a private hospital for the treatment of medical, surgical and obstetrical cases.</p> <p>The facts, so far as material, are stated in the opinion.</p>

review certain orders which are referred to in the opinion. The nature of the action and 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 May 22, 1917, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>2. A trustee in bankruptcy was directed to furnish a surety company bond and to deposit with defendant all moneys of the bankrupt estate. The trustee furnished a bond given by plaintiff which was subsequently obliged to pay on account thereof the moneys it seeks to recover from defendant, the trustee having drawn funds from the defendant under such circumstances that the defendant is chargeable with knowledge that they were trust funds and that they could not under the rule of the court be withdrawn without the signature of a designated officer of the court. Certain of the checks drawn by the trustee were so countersigned. Held, that as to checks not so countersigned, a simple inquiry would have brought the rule or order of the court and its provisions to the attention of defendant and that it is, therefore, chargeable with knowledge of its existence.</p>

<p>Consideration — conveyance — a precedent debt is not a' sufficient consideration to support a conveyance as against prior equities — assignment of mortgage to trustee, obtained through fraudulent representations, conveys no title to the mortgage to a substituted trustee.</p> <p>1. The mere existence of a precedent debt is not a sufficient consideration to support a conveyance as against prior equities. Not even when it is accepted in absolute payment and satisfaction of an antecedent debt.</p> <p>2. Where the trustees of an estate .through false and fraudulent representations obtained an assignment of a mortgage to themselves as trustees, the assignor receiving no consideration therefor, a substituted trustee obtained no valid title to the mortgage although on the accounting of his predecessors the decree set out the assignment of the mortgage and stated that the former trustees represented it as an investment of funds of the trust estate. The substituted trustee took the mortgage subject to all its defects and imperfections and all the equities existing in behalf of the original owner.</p> <p>3. The accounting by the trustees was not competent evidence that the estate money had been invested by them in the mortgage and that at the time of the assignment to them as trustees they had taken the estate money for such a purpose and was improperly received. Hence the substituted trustee is in no better position as to this mortgage than his predecessors in title who could not foreclose the mortgage, not being holders in good faith and for value.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 10, 1917, which affirmed an order of Special Term denying, as a matter of law, a motion for a peremptory writ of mandamus.</p> <p>The nature of the .action and the facts, so far as material, are stated in the opinion.</p>

1 and 2. The order of reversal denied the motion of the petitioner and directed the comptroller to set off and apply the said award in partial payment of an assessment for benefit imposed.in the same proceeding against the residue of the lands of which “ damage Nos. 1 and 2 ” had formed a part. 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 first judicial department, entered December 6, 1918, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel defendants, to certify to the commissioner of health of the city of New York a single eligible list, for promotion to the position of supervising nurse.</p>

<p>Transfer tax — rule for taxation of contingent remainders — when a future estate, which may become vested upon the happening of a contingency, must be taxed at the highest rate that may be possible upon the happening of the contingency.</p> <p>1. In computing, under the statute (Tax Law [Cons. Laws, eh. 60], § 221-a), the value of remainders created by the trust provisions of a will, no distinction is to be drawn between the classes of remainders, whether vested or contingent. For the purpose of taxation, the contingency is eliminated, and the gift is classed as absolute subject to the refund provided for by the act (§§ 230, 241).</p> <p>2. Where testator directed his testamentary trastee, upon the death of his wife, to divide the principal among her children then living, in trust with remainder to their testamentary appointees, or in default thereof to their heirs at law, the residue of the estate, including any legacy or devise which may lapse or fail, to go to a nephew, there are, under such provisions, possible contingencies that may make the principal of the trust a part of the residuary estate, and hence the value of the future estate or remainder, which may possibly go to the residuary legatee, upon the happening of the contingency, must be taxed at eight per cent, the highest rate that would be possible on the happening of any of the contingencies or conditions which the transfer may involve (Tax Law [Cons. Laws, ch. 60], § 230). (Matter of Zborowski, 213 N. Y. 109, followed.)</p>

<p>Negligence —• evidence — allegations of specific injuries — under such allegations it is erroneous to allow evidence of an injury not alleged or referred to in the complaint.</p> <p>1. Where the injuries alleged in an action for negligence are specifically stated, parts of the body mentioned and the injuries to the parts are given, an accompanying clause of general injury to other parts of the body naturally leads to the inference that such are of minor importance or else connected with and necessarily growing out of the injuries specified.</p> <p>2. Where plaintiff, who was injured by defendant’s automobile, alleged specific injuries “ and that he was otherwise bruised, sprained and injured in and about various parts of the body,” it was error to allow evidence of paralysis of the right side of the face, such injury not having been referred to in the complaint. (Keefe v. Lee, 197 N. Y. 68, followed; Ehrgott, v. Mayor etc., of New York, 96 N. Y. 264, distinguished.)</p>

<p>Contract — insurance (life) — pleading — effect of general denial in answer in action on contract — under such answer, in action on life insurance policy, company cannot prove violation of statutory requirements forbidding special favors in payment of premiums — statute against discrimination aimed at insurance companies and their agents and affects insured only, if at all, when he is party to transaction.</p> <p>1. The general denial in the answer in an action on a contract puts in issue simply all matters which the plaintiff was bound to prove to make out his cause of action; in order to avail himself of facts not appearing upon the face of the contract to establish its validity or illegality the defendant must plead them. Hence a general denial by an insurance company in an action brought on its policy does not authorize proof of alleged illegality on its own part in connection with the terms of the policy.</p> <p>2. That a company soliciting and receiving the consideration for insurance may avoid its obligation on the ground that either itself or its agent has violated the law is a proposition repugnant to familiar elements of the law. This view is in accordance with the policy of our law that no one will be permitted to profit by his own fraud or to take advantage of his own wrong or to found any claim upon his own iniquity or to acquire any property by his own crime. I</p> <p>3. The statute of Pennsylvania invoked by defendant provides that insurants shall not receive any special favor or advantage “ not specified in the policy contract of insurance.” Held, that the policy herein fully stated the consideration therefor and the terms of payment; hence there was no violation of this provision.</p> <p>4. The Pennsylvania act provides that no insurance company doing business in that state shall make or permit any distinction or discrimination in favor of individuals between insurants of the same class and equal expectations of life in the amount or payment of premiums or rates, charge for policies of life or endowment insurance, or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of the contracts it makes. Held, that if any advantage or discrimination was given plaintiff herein it was the voluntary act of defendant without participation therein by plaintiff, and it was not intended by the statute to make such a contract void. The statute is aimed at the insurance company and its agents, only applying to the insured, if at all, when the favor or discrimination was known to him, and it does not enable the defendant to profit by its own wrong as against one not in pari delicto.</p>

<p>Will — devise by testator to his son and wife during their joint lives — second wife of son by marriage after testator’s death has no interest in property devised — summary proceedings— reversioners cannot maintain same to eject tenant holding premises under lease from the deceased son on ground tenant is a squatter or intruder.</p> <p>1. A squatter is one who settles on the lands of another without any legal authority, and an intruder is one who enters upon property where he has no right, or one who, after the death of an ancestor, enters upon land unlawfully, before the heir can enter. The use by the legislature of the words “ squatter ” and “ intruder ” in the statutes affecting possession of real property does not include persons other than those within the ordinary meaning of the words.</p> <p>2. Testator devised certain real property to his son and his wife during their joint lives. The wife dying after the testator, the son again married, and before his death leased the property so devised to one of the respondents. Held, first, that the second wife has no interest in the real property so devised; second, that when the son died, the lease made by him as owner of a life estate in the real property to the respondent terminated. (Code Civ. Pro. § 1664.) Therefore, from the death of the son the tenant was a trespasser as were his subtenants, and the reversioners, owners of the fee, were entitled to the possession of the property. Third, that on the refusal of the respondent and his subtenants to deliver possession of the property to the appellants, who succeeded to the title, they were not entitled to maintain summary proceedings to obtain possession. The respondent and his subtenants, while trespassers, are not squatters and the provisions of subdivision 4 of section 2232 of the Code of Civil Procedure do not apply. (Meeker v. Draffen, 201 2ST. Y. 205; Matter of. Harris, 152 App. Div. 52; affd., 206 N. Y. 690, distinguished.)</p>

. Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 15, 1919, 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.

<p>Partnership — liability of copartners — when a member of a partnership is not liable for debts incurred for supplies purchased by one who is his copartner but for the benefit and use of another firm of which the latter was also a member.</p> <p>Plaintiffs brought this action against defendants to recover for automobile supplies claimed to have been furnished them. The defendant, who appeals, while admitting that he and his co-defendant were co-agents, or partners, for the sale of automobiles, denies that they were partners for any other purpose or that the supplies were furnished to the partnership. The denial also raised the issue as to whether the special partnership or business was such as to impliedly authorize the co-defendant to purchase automobile supplies. It appeared that one of the orders given plaintiff was on a letterhead of the firm. Held, that it was error to direct a verdict for defendant for the amount of such order and that considering the nature of the agency, the letterheads, the business as previously conducted and as explained by this defendant, the question whether the partnership was merely to sell automobiles or whether it included their fixing and repair, thus requiring accessories, was for the jury, -and hence it was error to refuse to charge that in order to hold the defendant, appellant, liable on the account set up in this action, the goods delivered and the credit given must be within the scope of the business in which he was held out to be a partner.</p>

<p>Workmen’s Compensation Law — constitutionality of provision permitting awards for injuries received by employees engaged in maritime work.</p> <p>The provision of the Workmen’s Compensation Law (Cons. Laws, ' eh. 67) giving to the commission jurisdiction over cases where injury was received in maritime employment is constitutional. (Southern Pacific Co. v. Jensen, 244 U. S. 205, distinguished.)</p>

<p>Guaranty and suretyship — municipal corporations — undertaking given by contractor for faithful performance of his contract to construct system of water supply — when municipality cannot maintain action thereon to compel sureties to pay bills unpaid by contractor.</p> <p>I. This action was brought to recover against the appellant as surety upon an undertaking executed in behalf of a contractor with the respondent to construct a system of water supply. In determining to award the contract in question respondent’s officials resolved that the contractor must give an undertaking conditioned for the faithful performance of the contract and for the payment of all debts incurred for work and materials. The undertaking which was, in fact, executed by the surety contains no such obligation. The specifications which must be regarded as incorporated into the contract alone contain provisions bearing upon this subject. These are: “ The contractor shall pay promptly all bills for labor and materials. Failure of the contractor to fulfill the conditions of this clause shall be deemed justification for the board paying such bills and deducting the amount of such payments from any money due the contractor; ” also, “ It is expressly agreed and understood that before such final payment (as therein specified) is made the Board may require the contractor to furnish satisfactory evidence that all lienable claims * * * have been fully satisfied.” There are outstanding claims against the contractor which plaintiff seeks to recover. The respondent has paid none of these claims and is not liable personally for their payment. The liens which have been filed are not against its property, but are simply against any unpaid balance on the contract (Lien Law [Cons. Laws, ch. 33], § 5), and the bond executed by appellant is not in any way conditioned for the payment by the contractor of his obligations incurred in the execution thereof. Hence, this action cannot be maintained.</p>

Appeal, by permission, from a judgment entered January 8, 1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a determination of the Appellate Term, reversing a judgment of the City Court of the city of New York in favor, of defendant, entered upon an order setting aside a verdict in favor of plaintiff and dismissing the complaint. The Appellate Term directed reinstatement of the verdict.

<p>1. Where improvements are lawfully made in a public street which do not involve direct encroachment upon private property, the person or corporation making the same is not liable for consequential damages unless they are caused by negligence, misconduct or want of skill.</p> <p>2. A license to do something that cannot be lawfully done without such license is new matter constituting a defense which must be alleged in the answer, under the rule that where the defendant relies upon new matter by way of confession and avoidance of the claim of the plaintiff, it must be specially pleaded. (Code Civ. Pro. § 500.)</p> <p>3. Where plaintiff complained that his business was interfered with to his damage by reason of defendants unlawfully closing and obstructing streets which plaintiff’s customers had been accustomed to use in reaching his place of business so that he lost customers and profits thereby, a defense that the public service commission had authorized the prosecution of the work, and the licenses or permits given by the municipality to close the streets affected by the order of the commission in order to eliminate grade crossings must be alleged, and if not alleged such proof should not be received under an objection that it is not within the issue presented by the pleadings.</p> <p>4. The defendant did not build or maintain the temporary structure of the fire department of the city of New York of which the plaintiff complains, and it is not responsible for any damage that the plaintiff suffered by reason of its erection and maintenance.</p>

<p>Insurance (title) — construction of policy insuring title of premises — description of insured land by metes and bounds — when encroachment by building thereon, exceeding boundaries of the land, covered by policy — what defects are not created by the act or privity of the insured.</p> <p>1. This appeal presents the question of the construction of a policy of insurance of the marketability of title of certain premises. Under the heading “ the description of the property, the title to which is insured,” comes a description by metes and bounds. Then follow these words: “ and also the building now being erected on said premises known as the Bowling Green Offices. The lands the title to which is hereby intended to be insured, being that on which said building now stands as shown by the survey * * *, a duplicate of which survey is hereto annexed.” The survey shows the building as entirely within the lot lines and shows no part of the premises as encroaching upon Broadway. When the policy was issued, the building encroached beyond the line of the land described by metes and bounds into Broadway. Held, that the Appellate Division erred in holding that the policy covered only so much of the building as stood upon the land specifically described and not the land on which the. actual building stood. {Griffiths v. Morrison, 106 N. Y. 165, distinguished.)</p> <p>2. That the encroachment was a defect, objection, lien or incumbrance “ created by the act or with the privity of assured ” and thus excepted from the terms of the policy does not appear. The exception protects the insurance company from things hidden or done clandestinely, but not from the very acts insured against.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 10, 1917, affirming a judgment in favor of plaintiffs entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

entered upon a verdict and directing a dismissal of the complaint. 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 fourth judicial department, entered July 9, 1917, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment entered February 8, 1919, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed a judgment of the Court of Claims dismissing the plaintiffs’ claim upon the merits and directed judgment absolute in favor of plaintiffs.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment entered July 23, 1917, 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 decision of the court at a Trial Term without a jury and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 16, 1917, unanimously affirming a judgment in favor of defendant 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>

the court and directing a dismissal of the complaint. On May 27, 1912, the assignor of the plaintiff and the defendant entered into a contract, evidenced by an offer in the form of a letter to the defendant’s husband, who was acting for her, and which offer was accepted in the defendant’s behalf by a written statement thereon.

<p>Constitutional law — validity of chapter 700, Laws of 1917, amending and adding to Tax Law.</p> <p>Article 15, as amended, and section 221b of the Tax Law (Cons. Laws, oh. 60), as added by chapter 700 of the Laws of 1917, are valid and constitutional enactments.</p>

Daniels, deceased, arid apportioning among the legatees the payment of the Federal estate tax. The facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment entered April 12, 1917, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed a judgment of the Supreme Court at Special Term reversing a judgment of the City Court of Buffalo in favor of plaintiff and dismissing the complaint, and reinstated said City Court judgment. 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 first judicial department, entered July 24, 1917, afiirming a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 25, 1917, affirming a judgment in favor of plaintiff entered upon a special verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

Buechner, as trustee under the will of Charles F. Griffith, deceased. 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 second judicial department, entered September 21, 1917, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Workmen’s Compensation Law — appeal — award made by industrial commission, affirmed by Appellate Division — decision of Appellate Division, although not unanimous, must be affirmed by this court if there is any evidence to support it.</p> <p>Where a section laborer of a railroad, while engaged in mowing grass upon the right of way of the railroad, contracted ivy poisoning resulting in his death, and the state industrial commission, whose decision has been affirmed by the Appellate Division, has found that the intestate was not engaged in interstate commerce at the time he contracted poisoning, and made an award to the intestate's widow, this court, although the decision of the Appellate Division was not unanimous, can only review its determination to ascertain whether there be any evidence or reasonable inferences deduced from the testimony upon which to base it, and where there is some evidence or at least reasonable inferences to be drawn from the evidence to sustain its conclusion, the order of the Appellate Division must be affirmed, since this court cannot pass upon the weight of testimony and say whether, or not, the question of fact was rightly decided.</p>

<p>(1.) Habeas corpus—When relator properly held for grand jury for CRIME OF RECEIVING STOLEN PROPERTY.*</p> <p>Where money is obtained from another by fraud and felony, the wrongdoer obtains no title and the owner may reclaim it if found in the possession of the wrongdoer, or he may follow it into the hands of any person who received it without consideration, or with notice of the fraud by which the same was obtained; and if such money be deposited in a bank, it still remains the money of the owner, the bank being a mere depository, and while it so remains the owner can compel the bank to restore it to him.</p> <p>(2.) Same.</p> <p>Where a clerk of a trust company in New York city fraudulently obtained possession of and forged the necessary signatures to certain certificates of stock of a corporation and by putting up the forged certificates as security for the payment of his promissory notes obtained a large loan from a firm of bankers in another state who telegraphed their correspondents in New York to place the amount of such loan to the credit of said clerk in a designated trust company, this credit, as between the clerk and the foreign bankers, belonged to the latter. It was stolen credit, and money drawn by the clerk from the trust company by reason thereof was stolen money. The money belonged not to the clerk but to the bankers who could have retaken the same from him or any other person who took the same with notice.</p> <p>(3.) Same.</p> <p>Where, therefore, the clerk afterward drew from the trust company a part of said deposit and gave it. to relator, his paramour, whom he had told about the transaction and how he had obtained the credit in the trust company and the money, he committed a larceny within the meaning of the statute (Penal Law, § 1308) and when the relator-accepted part of this money, knowing, as she did, that it had been stolen, she was guilty of receiving stolen property and the magistrate,, before whom she was arraigned after her arrest upon the charge of criminally receiving stolen property, did not err in committing her to-await the action of the grand jury.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 10, 1917, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 13, 1917, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term. The plaintiff brought this action to foreclose a mortgage upon property situate in the town of Webster, county of Monroe, state of New York.

<p>Street railways — public service commission — jurisdiction to regulate rates of fare in city of Buffalo — Milburn agreement.</p> <p>1. The power to regulate railroad rates is the power to increase them if inadequate just as truly as it is the power to reduce them if excessive, and there is no distinction between regulation directly by the legislature and regulation indirectly through a commission.</p> <p>2. In a case where the local authorities, in imposing a condition to their consent to the construction and operation of a street railroad, have consented that the legislature may change it, the public service commission has jurisdiction and power to regulate the rate of fare to be charged.</p> <p>3. By a clause of the Milburn Agreement between the city of Buffalo and its various street railways thereafter ratified by the legislature (L. 1892, ch. 151) it is provided that “ nothing in this contract contained shall be construed to prevent the legislature from regulating the fares of said companies or either of them.” Subsequent action by the local authorities reincorporated this covenant. Municipality and railroads thereby joined in the declaration that the rate fixed by their agreement should be, not final but provisional, subject, in case of need, to re-examination and readjustment by the agents of the state. The public service commission, therefore, has power to fix just and reasonable rates of fare by increasing them if inadequate or reducing them if excessive,</p> <p>4. The provision in subdivision 6 of section 49 of the Public Service Commissions Law (Cons. Laws, eh. 48) that “ nothing herein contained shall affect or modify ” the terms of the contract between the city of Buffalo and the railroads, is not a limitation upon the whole section but upon subdivision 6 only, which applies to the regulation of transfers. (Matter of Quiriby v. Public Service Comm., 223 N. Y. 244, explained and distinguished.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the - third judicial department, entered September 19, 1918, which affirmed an order of Special Term .confirming the report of commissioners of appraisal. The facts, so far as material, are stated in the opinion.

<p>Vendor and purchaser—where owner of land extending to ocean front sells part thereof as “ ocean front property ” he subjects the remaining part to an easement in favor of the part sold.</p> <p>Defendant’s agent having been advised that plaintiff, a prospective purchaser, was only interested in ocean front lots, took him on the land for the purpose of showing him ocean front lots, pointed them out, told h"m they were the nearest lots to the ocean for sale, and made the statement that there would be nothing between them and the ocean save a boardwalk. The map then in custody of defendant’s agent and the physical situation of the property clearly indicated the lots as ocean front lots. It contained an inscription which read “ all right, title and 'nterest in and to the Beach front reserved to the West Rockaway Land Co.” The plaintiff in reliance upon the statements made to him and the situation and location pointed out to him purchased the lots, and thereafter defendant stood by silently, and observed plaintiff erect his cottage facing the ocean. Later defendant platted the land between the proper !y of plaintiff and the ocean into lots extending beyond mesne high-water mark and offered the lots, including, “ ocean front ” lots for sale thereby asserting a right to effectually injure plaintiff’s property by depriving him of ocean front lots and leaving his cottage facing not the ocean or a boardwalk but the side of a building which may be erected immediately south of his cottage. Held, that at time of the sale and as part of the same transaction defendant subjected the land south of plaintiff’s lots to a permanent, open and continuous service or easement in favor of the part sold to plaintiff, save that defendant might erect a boardwalk thereon, and that defendant was thereafter equitably estopped from asserting a right to sell the lands south of plaintiff’s lots.</p>

<p>Appeal from a judgment entered September 13, 1916, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling plaintiffs’ exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of defendant upon the nonsuit granted at the Trial 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 an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 9, 1918, which reversed a determination of the public service commission, second district, and remitted the proceeding to the commission for further consideration.

<p>1. Transportation by ocean carriers between the United States and non-adjacent countries is not included in or affected by the act to regulate commerce and the jurisdiction of the interstate commerce commission or the classification and schedule of rates and charges, pursuant to the act, cannot extend to carriers engaged in that transportation.</p> <p>2. The permissibility of limiting the recovery, in ease of liability, to a valuation of the freight agreed upon or declared by the shipper is conclusively established, but an agreed or released valuation is valid and effective as the extent of a loss only when it is related to the rate charged for transportation. The shipper cannot be estopped by an agreement or declaration concerning value which in no way or extent affected the tariff or conduct of the carrier. The essential choice of rates must be made to appear before a carrier can successfully claim the benefit of the agreed- valuation limitation and relief from full liability.</p> <p>3. The duly established and filed rates are absolutely binding upon all persons who are parties to a contract of interstate transportation. They have the force of a statute and cannot be varied under any pretext, nor can any party lawfully depart from them.</p> <p>4. Goods, consisting of fifty-six cases, of the invoice value of over $17,000, were delivered at Yokohama, Japan, to the Pacific Mail Steamship Company for transportation to New York city. A bill of lading was delivered by the company to and accepted by the shippers. It contained the provision: “ It is expressly agreed that the goods named in this Bill of Lading are hereby valued at not exceeding $100.00 per package, and unless a different or other value is expressly written and declared herein, the liability of the Companies therefor, in case of the total loss of all or any of the said goods from any cause, shall not exceed $100.00 per package, * * It did not express or declare a different value. The goods were subsequently delivered to the defendant, as a connecting carrier, and were totally destroyed while being transported over its railroad. The filed classifications and schedules did not sanction the right of the parties to fix the agreed valuation as a limitation upon the extent of the liability of the connecting carriers. By force of provisions of the classification, a uniform bill of lading was a part of the classification and related to and governed the terms of the transportation eastward from San Francisco. It provided: “ The amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property (being the bona fide invoice price, if any, to the consignee, including the freight charges, if prepaid) at the place and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based.” It fixed the same rate for transportation as was fixed by the original bill of lading — a lesser rate for a valuation less than the value of the property was not prescribed or presented to the shipper nor was there a rate adjustable to the agreed valuation in the original bill of lading. Held, that although the uniform bill of lading declared that an agreed lower valuation should be the maximum amount to govern the computation of any loss or damage, a lower rate is not offered to or obtainable by the shipper because of it. There is no basis of an estoppel as against him, and the plaintiff, as assignee, was entitled to recover the invoice value of the goods.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 7, 1917, 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>Motions to amend remittitur. (See 225 N. Y. 142.)</p>

Claimant, a boy seventeen years of age, was employed by defendant Continental Can Company to dip cans in a liquid. On the day of the accident, having finished his own work he attempted to operate a stamping machine in violation of orders of his employer and received the injuries complained of. The industrial commission held that although claimant violated orders, nevertheless, that did not bar him from compensation.

<p>Motion for re-argument. (See 225 N. Y. 329.)</p>

The award included an allowance for facial disfigurement as permitted by subdivision 3 of section 15 of said statute.

The award included an allowance for facial disfigurement as permitted by subdivision 3 of section 15 of said statute.

<p>Appeal from a judgment of the Supreme Court rendered April 1, 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>

The action was brought by the plaintiffs to foreclose a mortgage upon certain real property situated in Queens and Nassau counties. Emeline Roffe, the appellant, holder of a subsequent mortgage on said premises, and the trustee in bankruptcy of the owner of the equity of redemption were the only defendants who .answered. Each answer set up an affirmative defense of usury. At the close of the trial the defendant Roffe amended her answer by adding the defense of payment.

<p>Workmen’s Compensation Law — rate of compensation for injuries.</p> <p>The Workmen’s Compensation Law (Cons. Laws, ch. 67) fixes but one rate of compensation for injuries. The workman is to receive two-thirds of his weekly wages not exceeding a certain sum. The extent of his injuries limits not the amount of these payments but the time during which they are to continue.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 29, 1919, which unanimously affirmed an order of the Kings County Surrogate’s Court assessing a transfer tax upon the estate of Frazier M. Dolbeer, deceased.

Appeal, by permission, from an order of- the Appellate Division of the Supreme Court in the second judicial department, entered October 25, 1918, which unanimously affirmed a decree of the Westchester County Surrogate’s Court admitting to probate the will of Lemuel M. Hart, deceased.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 21, 1918, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial. The motion was made upon the ground of failure to perfect the appeal.

This action is brought to foreclose a lien claimed to be held by plaintiff on 461 shares of the capital stock of the Waterloo Wagon Company, Limited, and 253 shares of the capital stock of the First National Bank of Waterloo, all of which stocks are and have been since February 20, 1899, in the possession of defendant Exchange National Bank of Seneca Falls as collateral security for the payment of any indebtedness owing to said bank by the Waterloo Wagon Company, Limited, or…

<p>Appeal from a final judgment entered March 30, 1917, and from an interlocutory judgment entered May 20,1915, as modified by an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1916.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 19,1917, unanimously affirming a judgment in favor of defendant, entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint on the merits.

The jury found that while the plaintiff was attempting to alight from one of the defendant’s street cars, the car was suddenly started and the plaintiff was thrown and injured. This finding of the jury is not questioned upon this appeal.

The action was for damages and an injunction restraining defendants “ from in any manner assigning, stationing, placing or posting, or causing to be assigned, stationed, placed, posted or maintained, in and about the private premises of the plaintiff herein, the Hotel Plymouth, at No. 257-9 West 38th street, New York City, any police officer * * *; and from informing guests, prospective guests, visitors or other persons having lawful business upon the premises, when such…

<p>Motion for re-argument. (See 225 N. Y. 602.)</p>

upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, by reason of. a collision between a motorcycle upon which she was riding and a motor truck driven by an employee of the defendant. The only question, on appeal, was whether the chauffeur, at the time of the accident, was acting within the scope of his employment.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 7, 1919, which affirmed a decree of the New York County Surrogate’s Court settling the accounts of the temporary administrator, executors and trustees of Caroline A. Brundage, deceased, and construing the will of said deceased.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 5, 1918, which affirmed a decree of the Oswego County Surrogate’s Court adjudging the second clause of the will of Patrick Judge, deceased, to be void.

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1919, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The motion was made upon the ground of failure to file the required undertaking.