Volume 227 — New York Reports

<p>Labor unions — conspiracy — boycott — injunction — acts of members of labor unions calculated and intended to destroy plaintiff's good will, trade and business — when such acts may be restrained by injunction.</p> <p>1. Personal liberty or the right of property embraces the right to make contracts for the purchase of labor of others and equally the right to make contracts for the sale of one’s own labor and the employment of one’s individual and industrial resources. It is subject, however, to the condition that its exercise in the particular transaction shall not be inconsistent with the public interests or hurtful to the public order or detrimental to the common good. The right of the citizen to effectuate his desire or judgment without interference or compulsion must always be exercised with reasonable regard for the conflicting rights of others. An invasion of this right, without a cause or reason which the law deems essential or useful in the existence or betterment of organized society, is a legal and actionable wrong which may be compensated or restrained.</p> <p>2. There is an important and perceptible difference, in the realms of justice, civil order and law, between the voluntary acts of an individual, done in the right of personal freedom, the right to do or to refrain from doing, and their injurious effects, and the acts of others, undesired by them, initiated and performed in virtue of the deception', compulsion or oppression on the part of that individual, and their injurious effects.</p> <p>3. In an action brought by an employer of labor against members of labor unions to recover damages and for a permanent injunction, the trial court made findings which are supported by evidence to the effect that the defendants sought the destruction of plaintiff’s business and that their acts were calculated to and intended to destroy the plaintiff’s good will, trade and business, and, in part, accomplished that purpose, and that such acts were done in furtherance of a conspiracy from which plaintiff was at the time of the commencement of the suit suffering irreparable loss and damage. Held, that the means employed were unjustifiable and unlawful and defendants should be restrained from employing them. (Bossert v. Dhuy, 221 N. Y. 342, distinguished.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 17, 1919, which reversed an order of Special Term denying a motion by defendant for judgment in her favor on the pleadings and granted said motion. The following questions were certified: “ 1. Does the complaint herein state facts sufficient to constitute a cause of action? 2.

The nature of the action and the facts, so far as material, are stated in the opinion. The broker’s contract had been duly performed and the compensation thereunder became due upon his procuring a lender on terms satisfactory to the defendant and upon the acceptance of the loan by the lender. (Lederman v. Orecchinto, 160 N. Y. Supp. 852; Flannagan v. Fox, 6 Misc.

The facts found by the trial justice are in substance: The plaintiff and one Johanna Baumann are husband and wife.

The nature of the action and the facts, so far as material, are stated in the opinion. The Mining Law of Pennsylvania, as construed by the courts of that state, does not make defendant liable for the mistakes of judgment, or even the negligence of the mine foreman, when he is acting as mine foreman and discharging duties particularly assigned to him by the statute. (L. V. Coal Co. v. Washko, 231 Fed. Rep. 42; Duskin v. Kingston Coal Co., 171 Penn.

The nature of the action and the facts, so far as material, are stated in the opinion. No actionable negligence was proven. (Mott v. Consumers Ice Co., 73 N. Y. 543; Mulligan v. N. Y. & R. B. R. Co., 129 N. Y. 506; Grimes v. Young, 51 App. Div. 240; Murphy v. Buckley-Newhall Co., 151 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 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 action is brought under the provisions of section 1391 of the Code of Civil Procedure to recover a percentage of the salary of one Charles T. Logan, an employee of the defendant-respondent.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The court erred in dismissing the complaint. (Wood v. Morehouse, 45 N. Y. 386; T. H. Dept. v. Weil, 134 N. Y. Supp. 1062.)</p>

<p>Conservation Law — provision requiring all persons engaged in hunting to have a license — exception as to persons hunting . on farmland owned, leased pr occupied by them — complaint must allege that defendant did not come within exception.</p> <p>The Conservation Law (Cons. Laws, ch. 65, § 185, subd. 1) requires all persons engaged in hunting to procure a license. By subdivision 8 of the section an exception is made as to persons hunting on farm land owned or leased and occupied by them. In this action to recover a < penalty for violation of the statute, the complaint did not negative the fact that defendant was one of the persons within the description in the latter provision. Held, that it was necessary for the People in the complaint to negative the fact that defendant came within the exception, but that the burden will rest on the defendant to prove the existence or non-existence of the facts making the exception.</p>

Appeal — when reversal by Appellate Division “ upon the facts ” must be presumed to have been made upon the law. Where the Appellate Division reversed á judgment entered upon findings made at Trial Term “ upon the facts ” without further specification, it must be conclusively presumed that the reversal was made upon the law in accordance with section 1338 of the Code of Civil Procedure.

The nature of the action and the facts, so far as material, are stated in the opinion. The corporation, the Myles Realty Company, was the owner of the mortgage. It had acquired title more than sixteen months before the transaction in suit. The plaintiff loaned to it on the faith of its record title and the ■ assurance that it owned' the mortgage.

The nature of the action and the facts, so far as material, are stated in the opinion. The exclusive control of private property is subordinate to the exigencies of public safety and private necessity. The railroad company owed to the public in general a duty to so use its own property as not to do unnecessary injury to the property of another. (Phoenix Ins. Co. v. N. Y. C. R. R. Co., 122 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court. in the' third judicial department, entered April 14, 1919, which dismissed a writ of certiorari and confirmed a determination of the state tax commissioners in assessing a franchise tax against the relator. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in charging that if the infant plaintiff was guilty of contributory negligence he could not recover. (Gallenkamp v. Garvin Machine Co., 91 App. Div. 147; 179 N. Y. 588; Kircher v. I. C. Mfg. Co., 134 App. Div. 144; 200 N. Y. 587; Lee v. S. S. Mfg. Co., 134 App. Div. 123; Lowry v. Anderson Co., 96 App.

<p>Surrogates’ Courts — testamentary trustees — commissions of deceased trustee — surrogate or Supreme Court has discretionary power to award or withhold commissions for services rendered by trustee before his death.</p> <p>1. No distinction should be made between the powers of the Supreme Court and those of the surrogate in dealing wjth the compensation of a testamentary trustee.</p> <p>2. The surrogate in settling the accounts of trustees of an estate allowed the executors of the will of a deceased trustee compensation for Ms services up to the time of Ms death as a co-trustee. A modification by the Appellate Division consisted in increasing the allowance to the full amount of commissions for receiving trust property as fixed ■by section 2753 of the Code of Civil Procedure. The order states that the estate of the deceased trustee was entitled to tMs modification as a matter of right and not as a matter of discretion. Held, that the surrogate or Supreme Court has discretionary power and may award or withhold commissions in certain cases; and under circumstances such as here existing, may - allow such sum as is reasonable for the services of a deceased trustee, not exceeding the statutory percentage.</p>

The facts, so far as material, are stated in the opinion. Permitting the district attorney to impeach and cross-examine his own witness, Florence Horowitz, was reversible error. (Bray-man v. Grant, 130 App. Div. 272; People v. Dixon, 118 App.

This action was brought to compel the specific performance of a contract to convey real property.

Appeal by the City of New York from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1919, which reversed an order of Special Term, denying a motion, to confirm the report of commissioners of estimate in the above-entitled proceeding and modified and as modified confirmed said report.

• Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 4, 1919, which modified and affirmed as modified an order of Special Term in a proceeding to establish an attorney’s lien. The facts, so far as material, are stated in the opinion. There is no proof of a valid contract of retainer between the plaintiff and petitioners.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 5, 1919, which affirmed a decree of the Kings County Surrogate’s Court judicially settling the accounts of the executors of Catherine Corey, deceased. 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 second judicial department, entered June 6, 1919, which reversed an order of the Kings County Court denying an application for an order directing the committee of the property of Samuel E. Haslett, an incompetent person, to pay the expenses incurred by petitioner in defending certain actions brought against him for malicious prosecution and sending the petition back to the County Court…

The facts, so far as material, are stated in the opinion. The estimate sheet was no part of the plans or specifications, or of the contract, and the statements contained therein were not warranties or representations intended to be relied upon (W. Q. Asphalt Co. v. Carlisle, 158 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court -in the fourth judicial department, entered December 9, 1918, which affirmed an order of Special Term granting a motion for alimony and counsel fee in an action to annul a marriage. The following question was certified: “ Had the court power to make the order appealed from? ” 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 defendant, by its undertaking, in plain terms and in accord with the manifest scope of the court’s order, has guaranteed payment of the judgment against Ball recovered by plaintiff in the action in which defendant’s undertaking was filed. (Caponigri v. Cooper, 70 App. Div. 124; Doon v. Amer. Surety Co., 110 App.

, to be used at the general election to be held in the county of Queens on November 4, 1919, to disregard the names of candidates for the office of sheriff, and directing that the… Held: the governor cannot appoint nor can the under-sheriff hold over. (Cons. Laws, ch. 11, § 180; Cons. Laws, ch. 17, § 292; Cons. Laws, ch. 47, § 38; Const. of N. Y. art. 10, § 5.) The uniformity of elections sought by the Constitution and legislative enactments must be upheld by the courts.

The nature of'the action and the facts, so far as material, are stated in the opinion. The contract of insurance indemnified only the firm of Hartigan & Dwyer. The insurer contemplated only the risk incident to the use of the automobile by that firm, and cannot be held to have contemplated any other or greater hazard. (Cornell v. Travelers’ Ins. Co., 175 N. Y. 239; Cremo Light Co. v. Parker, 118 App. Div. 845; Dundee Chemical Works v. N. Y. Ins. Co., 12 Misc.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 21, 1919, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term sustaining a demurrer to 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 an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1919, which affirmed an order of Special Term overruling demurrers to the complaint. The following question was certified: “ Does the complaint state facts sufficient to constitute a cause of action? ” The facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 2, 1919; which reversed an order of Special Term denying a motion to vacate and set aside a prior order made at an Extraordinary Special Term by which a referee was appointed to hear, try and determine the issues in the action and granted said motion. -The following question was certified: “ Did the Extraordinary Special Term which had been…

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not negligent. (C. C. R. Co. v. Osborn, 66 Ohio St. 45; Craig v. B. El. R. Co., 207 Mass. 548; Niland v. B. El.

<p>Promissory notes — decedent’s estate — evidence — the words “ value received ” must give way to evidence that.there was no consideration — erroneous direction of nonsuit — error to exclude evidence offered under general denial that decedent’s signature was forged.</p> <p>1. Where it appeared by the evidence produced for the plaintiff that a decedent made and gave the note in suit as a voluntary gift without consideration, the formula of the printed blank which contained the words “ value received ” becomes, in the light of the conceded facts, a mere erroneous conclusion which cannot overcome the conclusion of the law. (Neg. Inst. Law, § 54; Cons. L. ch. 38.)</p> <p>2. Where the trial judge did not reserve his ruling on defendant’s motion for a nonsuit or for the direction of a verdict, b.ut denied the motion absolutely, it was error in setting aside a verdict for the plaintiff as contrary to law, to dismiss the complaint. A new trial should have been granted. (Code Civ. Pro. §§ 1185, 1187.)</p> <p>3. Where in such an action the defendant denied the execution of the note by decedent, it was error for the trial court to exclude evidence offered under a general denial, to show that the signature to the note was forged.</p>

The facts, so far as material, are stated in the opinion. The facts compel the reasonable inference that defendant was negligent. (Derby v. D. M. Contracting Co., 112 App. Div. 234; 188 N. Y. 631; Duer v. N. Y. C. & H. R. R. R. Co., 184 N. Y. 320; Corr v. City of New York, 121 App. Div. 578; Kelly v. City of New York, 197 N. Y. 543; 129 App. Div. 658; .Quirk v. Bradley Cont. Co., 79 Misc. Rep. 368; Wensley v. City of New York, 173 App.

. The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not guilty of negligence. ■ The trial court erred in submitting the case to the jury. (Freeman v. B. H. R. R. Co., 54 App. Div. 596; Sheffield Co. v. Morton, 161 Ala. 153; Kempf v. S. & I. E. R. Co., 82 Wash. 263; Johnston N. O. T. H. El. Co., 17 L. R. A. [N. S.] 435; Mayfield W. & L. Co. v. Webb, 33 Ky.

<p>Building contract — bankruptcy — provision that if contractor abandoned work before completion, building material on property could be used by owner in completion of work and as part payment of contractor’s obligation — when upon contractor’s failure to complete work, owner took possession of materials, a trustee in bankruptcy for contractors thereafter appointed cannot recover value of such materials.</p> <p>A contractor undertook to erect a building for defendant and stipulated that if for any reason he could not perform, and gave up the work, the building material on the property could be used by the owner in carrying out the contract. The contractor entered on the work but, having failed to perform, and abandoned it, the defendant took possession of such material as it found on the work for the purpose of using it in its completion, the cost of which was in excess of the value of the property so taken. Thereafter a petition in involuntary bankruptcy was filed against the contractor, and plaintiff elected trustee in bankruptcy. This action was brought by him to recover the property. Held, that the possession taken by the defendant was within the terms of its contract and did not constitute a conversion. Hence, plaintiff cannot recover. (Titusville Iron Co. v. City of New York, 207 N. Y. 203; Zartman v. First National Bank of Waterloo, 189 N. Y. 267; Stephens v. Perrine, 143 N. Y. 476, distinguished.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 18, 1919, which affirmed an • order of Special Term denying a motion for a writ of prohibition. The facts, so far as material, are stated in the opinion.

• Appeal from a judgment entered May 20, 1918, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury and directing judgment in favor of plaintiffs. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the claim and the facts, so far as material, are stated in the opinion. Only one transfer took place upon the transaction by which the voting trust certificates were surrendered to the old voting trustees for cancellation and the legal title to the stock transferred by the old voting trustees to the new voting trustees. (L. 1913, ch. 779, § 270; Bonbright & Co. v. State of New York, 165 App.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff’s salary, if the schedule of May 24, 1911, was invalid, could be computed according to the terms of the statute with which that schedule conflicted.

<p>Appeal from an order of the Appellate Division of the ¡Supreme Court in the third judicial department, entered January 5, 1916, which dismissed a writ of certiorari and confirmed an order of the public service commission, second district, granting to respondent Frontier and Western Eailroad Company a certificate of public convenience and necessity.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The commission exceeded its powers in granting a certificate for route A-B-C. (People ex rel. D. Ry. Co. v. Comm., 4 App. Div. 263; Matter of Riverhead, Q. & S. R. R. Co., 36 App. Div. 517; People ex rel. N. Y. C. R. R. Co. v. Comrs., 92 App. Div. 126; Matter of Ticonderoga R. R. Co., 116 App. Div. 56; L. 1910, ch. 481, § 9; People ex rel. Stewart v. R. R. Comrs., 160 N. Y. 202; Matter of Amsterdam, J. & G. R. R. Co., 86 Hun, 578.)</p> <p>The decision of the commission to grant a certificate permitting the construction of the road upon route A-B-C is beyond its powers. (Matter of Poughkeepsie Bridge Co., 108 N. Y. 483.)</p> <p>The public service commission has no power to grant a certificate of convenience and necessity upon a route not filed as required by the statute. (People ex rel. D. & S. R. R. Co. v. Railroad Comrs., 4 App. Div. 259; Matter of R., Q. & S. R. R. Co., 36 App. Div. 514; People ex rel. N. Y. C. & H. R. R. R. Co. v. R. R. Comrs., 92 App. Div. 126; People ex rel. Stewart v. R. R. Comrs., 160 N. Y. 202.) The certificate granted is in violation of the statute because it does not specify that public convenience and necessity require the construction of the railroad described in the certificate of incorporation. (People ex rel. N. Y. C. & H. R. R. R. Co. v. R. R. Comrs., 92 App. Div. 126.)</p> <p>The question whether a railroad corporation should receive a ’ certificate that public convenience and necessity require its construction has been committed to the public service commission for a judicial determination. (People ex rel. U. & D. R. R. Co. v. P. S. Comrs., 218 N. Y. 129; People ex rel. B. L. H. & P. Co. v. Stevens, 203 N. Y. 7; People ex rel. Stewart v. R. R. Comrs., 160 N. Y. 202; Village of Saratoga Springs v. Saratoga Gas, etc., Co., 191 N. Y. 123; People ex rel. N. Y. C. & H. R. R. R. Co. v. Public Service Commission, 195 N. Y. 157.) The nature of the issue to be determined required the applicant to specify a definite route for its railroad. (Cons. Laws, ch. 49, §§ 9, 89; Cons. Laws, ch. 48, § 53.)</p> <p>There is no merit in the claim that the commission has improperly changed the northerly terminus of the Frontier Terminal railroad. (People ex rel. S. S. Traction Co. v. Wilcox, 196 N. Y. 212; Village of Fort Edward v. H. V. Ry. Co., 192 N. Y. 139; People ex rel. T. A. Ry. Co. v. P. S. Comrs., 203 N. Y. 299; People ex rel. N. Y., N. H. & H. R. R. Co. v. Willcox, 200 N. Y. 423; People ex rel. Wood v. Lacombe, 98 N. Y. 43; Matter of Brooklyn, Q. C. & S. R. R. Co., 185 N. Y. 171; Hankins v. Mayor, 64 N. Y. 18; Davis v. Supreme Lodge, 165 N. Y. 159; Matter of Tiffany, 179 N. Y. 455; Ward v. Erie R. R. Co., 87 Misc. Rep. 365,370; 167 App. Div. 950; D., L. & W. R. R. Co. v. City of Buffalo, 65 Hun, 464.)</p>

the Supreme Court in the first judicial department, entered June 20, 1919, which affirmed a decree of the New York County Surrogate’s Court settling the accounts of the executor of Henry Bischoff, deceased, of a fund recovered as damages for negligence causing the death of the testator. 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, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Master and servant — negligence — automobiles — chauffeur, hired and paid by garage company to operate automobile rented by company for a fixed period at a fixed rental for the use of the lessee, not the servant of the lessee.</p> <p>1. A servant lent or let by his master to another does not become the servant of the other because the other directs what work is to be done or in what way it is to be done. If the servant remains subject to the general orders of the person who hires and pays him he is still bis servant, although specific directions may be given him by the other, from time to time, as to the work to be done.</p> <p>2. Where a garage company by a written agreement rented an automobile and the services of a chauffeur to defendant for a certain term and for a designated sum, to convey defendant wherever he desired to go, the company to hire and pay the chauffeur, to pay all expenses of the maintenance and operation of the car and to provide insurance protecting the defendant from all liability by reason of accident, such chauffeur was not the servant of defendant nor did the relation of principal and agent exist. The chauffeur was the servant of the company in its undertaking to furnish an automobile for the use of the defendant and to carry out the company’s work under the agreement. The defendant had no authority, management or care over the automobile or as to the manner in which it should be driven, and the chauffeur did the company’s business in his own way, and the orders given him by defendant merely stated to him, the work which the company had arranged to do. It follows, therefore, that defendant is not liable for the death of a pedestrian caused by the negligence of the chauffeur in driving the automobile in which defendant was riding.</p>

The nature of the proceeding and the facts, so far as material, are stated in the opinion. Both as an administrative department of the city and as a body empowered to expend moneys raised by taxation in the city of New York, the department of education is subject to investigation by municipal authorities with respect to such expenditures.

<p>Stock Corporation Law — consent of stockholders required to make legal and effectual mortgage on corporate property.</p> <p>The purpose of section 6 of the Stock Corporation Law (Cons. Laws, ch. 59) is to require the consent of the stockholders as therein provided in every case to make legal and effectual a mortgage on corporate property. This question may be raised by a general assignee of the corporation for the benefit of creditors. (Vail v. Hamilton, 85 N. Y. 453, followed; Black v. Ellis, 197 N. Y. 402, distinguished.)</p>

The complaint alleged that on March 19th, 1908, the plaintiff loaned to one Hoffmann the sum of $5,000 upon the terms and conditions of the following letter: “March 19th, 1908. “ Mr. George H. Diehl, Jr., “ New York City.: “ My dear Sir.:— If you will loan me the sum of Five thousand Dollars ($5,000) I will secure to you the payment of that amount out of the net proceeds realized by me from the sale or other disposition of the following inventions of mine or from the…

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1919, which affirmed an order of Special Term denying a motion to review the taxation of costs herein. The following questions were certified: “ 1. Did the plaintiff obtain a less favorable judgment than the judgment offered by the defendant? “ 2.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 28, 1919, which reversed a judgment of the Court of Special Sessions of the Peace in the city of Flew York convicting the defendant of a violation of section 270 of the Penal Law by practicing as an attorney-at-law without a license and directed the discharge of the defendant. 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 defendant was clearly negligent. (McGovern v. C. V. R. R. Co., 123 N. Y. 280; Schlemmer v. R. R. Co., 205 U. S. 1; Western Electric Co. v. Houselmann, 136 Fed. Rep. 564; Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 376; White v. Lehigh Valley R. R. Co., 220 N. Y. 131.) The burden rested on defendant to establish contributory negligence by affirmative proof. (Code Civ.

Deyo, deceased. The facts, so far as material, are stated in the opinion. Sherman’s evidence being given, there being nothing inherently improbable about it, and it being wholly uncontradicted and believed by the surrogate, who has expressly found that he told the truth, the surrogate was in error in holding that, because not corroborated, the appellant’s claim was not established. (McKeon v. Van Slyck, 223 N. Y. 392; Ward v. N. Y. Life Ins.

Pending the appeal to this court, the original plaintiff died, and his administratrix was substituted. The nature of the action and the facts, so far as material, are stated in the opinion. The trial court was right in allowing plaintiff’s counsel to cross-examine his own witness on new matter brought out by the defendant’s attorney on cross-examination concerning which new matter the witness was in no way interrogated on the direct examination. (Hubner v. Met. St. Ry.

The facts, so far as material, are stated in the opinion. The filling out and delivery of blank forms of bill of sale and chattel mortgage in the circumstances of this case did not constitute practicing law within the prohibition of section 280 of the Penal Law. (Matter of Persy, 36 N. Y. 653; Tiger v. Western Investment Co., 221 U. S. 286; Matter of Co-operative Law Co., 198 N. Y. 479; Matter of City of New York, 144 App.

The facts, so far as material, are stated in the opinion. There is no proof that a murder was committed while any robbery was being committed. (Penal Law, § 1044.) The proof shows conclusively that any attempted robbery had been abandoned before the shooting occurred.

<p>Buffalo (city of) — mandamus — patrolman of police force detailed for detective duty, whose designation has been revoked and who has been reassigned to duty as a patrolman, is not entitled to a writ of mandamus reinstating him as detective-sergeant.</p> <p>Under the charter of the city of Buffalo (L. 1891, ch. 105, § 191; amd. by L. 1912, ch. 198) as it existed before the charter enacted in 1914 (L. 1914, ch. 217), the superintendent of police was authorized to detail for detective duty a certain number of patrolmen who should be the detectives of the police force and be known as detective-sergeants with a salary fixed by the police commissioners, and under such provisions patrolmen were detailed to detective duties and were not required to take a new examination nor did they receive from the commissioners a new appointment, and such details might be terminated at the will of the officer who made them, without preferring charges, or a public hearing thereon, since such revocation of a detail was not a reduction of rank within the meaning of other ^provisions of the charter. The present charter (L. 1914, eh. 217) did not change the status of detective-sergeants previously appointed under the former charter. It follows, therefore, that a patrolman, who had been designated in 1904 to serve as a detective-sergeant, and served until 1919, when his designation was revoked and he was reassigned to duty as a patrolman, is not entitled to a peremptory writ of mandamus reinstating him as a detective-sergeant.</p>

The facts, so far as material, are stated in the opinion. The indictment did not charge any acts constituting a crime. (Simmons v. United States, 96 U. S. 360; United States v. Hess, 124 U. S. 483; State v. Carey, 4 Wash. 424; O’Connor v. State, 46. Neb. 157; County of Steuben v. Wood, 24 App. Div. 442; People v. Firth, 157 App. Div. 492; State v. Thomas, 111 La. 804; Crawford v. Lozano, 48 S. W. Rep. 538; People v. Silver, 158 App.

The fact's, so far as material, are stated in the opinion. The state is not liable for the torts of its agents and employees.

<p>Contracts — rescission — reformation of contract — fire insurance — builder’s risk — when builder’s risk slip attached to fire insurance policy limits liability to time building is in course of construction.</p> <p>1. While in equity a rescission of a contract may be adjudged on the ground of a unilateral mistake in its contents, in order that a reformation may be adjudged, there must be mutual mistake or inadvertence or the excusable mistake of one party and fraud of the other. There must have been a meeting of the minds of the contracting parties concerning the agreement, or agreement which the court is asked to declare existent.</p> <p>2. Ignorance through negligence or inexcusable trustfulness will not relieve a party from his contract obligations. He who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them and there can be no evidence for the jury as to his understanding of its terms.</p> <p>3. An insurance policy, issued June 9, 1916, insured for the term of one year from that date a factory building in process of erection. Attached to and a part of the policy when delivered was this slip or rider: “ Builders Risk Clause. It is understood and agreed that this policy covers the property described herein only while the building is in process of erection and completion and not as an occupied building.” Upon the outside of the folded policy, as delivered, appeared the words, “ Expires June 9, 1917.” The insured’s president, at the delivery, said to the defendant’s agent, “ This policy is written for a year,” and received the reply, “ Yes.” The building was completed in July, ^1916. In October, 1916, it had become equipped with machinery." The building was destroyed by fire February 5, 1917. Before that date the agents of the insurer gave notice of cancellation of the policy. In this action brought to recover on the policy the defendant denied liability on the ground it was not an insurer. Held, that the facts do not constitute or disclose a liability on the part of the defendant. The two stipulations in the policy were, obviously, to be read together and said the insurance shall exist for one year unless at a time within the year the erection of the building should be completed and its operation entered upon, at which time it shall cease to exist and all the liability under the policy shall cease.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 1, 1918, which affirmed an order of Special Term overruling a demurrer to the complaint. The nature of the action, the facts, so far as material, and the question certified are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The Cold Spring Co-operative Creamery Association is a business corporation engaged in the buying and selling of milk and is not a producer of milk within section 55 of the Agricultural Law and the bond of the Globe Indemnity Company does not cover its claim against Joseph Israel, the licensee. (Monroe Dairy Assn. v. Webb, 40 App. Div. 49; Matter of White, 118 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 5, 1918, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The fairness of the lease is not in issue. There is no evidence to show unfairness. The former commissioners were sole judges of the terms and their action cannot be reviewed. (People v. Stephens, 71 N. Y. 527; People ex rel. Graves v. Sohmer, 207 N. Y. 450.) The fact that Mr. Pratt happens to be a state officer does not prevent his being sued if, as such officer, he acts illegally or beyond his official power as such state officer. As to such excess he ceases to represent the state and his official position is no justification and he may be sued as an individual, and such suit is not against the state. (Litchfield v. Bond, 186 N. Y. 66; United States v. Lee, 106 U. S. 196; Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303; Sanders v. Saxton, 182 N. Y 477; 33 Misc. Rep. 389; Wright v. Shanahan, 149 N. Y. 495; Trani v. Gerard, 181 App. Div. 387; Flood v. Van Wormer, 147 N. Y. 284; Abell v. Van Gelder, 36 N. Y. 513; Danihee v. Hyatt, 151 N. Y. 493; Finnegan v. Carraher, 47 N. Y. 493; Clasan v. Baldwin, 129 N. Y. 183; Hennessey v. Paulsen, 147 N. Y. 255.) Chapter 204 of the Laws of 1917 cannot be considered with reference to this case. If it could, it does not have the effect claimed. If it did, then the statute would be unconstitutional. For these reasons the Appellate Division erred in denying the plaintiff relief. (Litchfield v. Bond, 186 N. Y. 66; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; Johnston v. Spicer, 107 N. Y. 185; Matter of Mayor, etc., 99 N. Y. 569; Donald v. State, 89 N. Y. 36; Salas v. United States, 234 Fed. Rep. 842; Bailey v. Mayor, 3 Hill, 521, 539; Republic of France v. Vichy Co., 191 U. S. 437; People ex rel. Vil. of South Glens Falls v. P. S. Comm., 225 N. Y. 216; People v. Roper, 35 N. Y. 629; People ex rel. Iroquois Door Co. v. Knapp, 186 App. Div. 172.) The instrument in question is a lease or concession. It describes and conveys an estate in land or an incorporeal hereditament. As to these it is executed, not executory. The executory covenant is as to collateral matters not affecting possessory rights. (Harris v. Harris, 75 App. Div. 216; Coleman v. M. B. Improvement Co., 94 N. Y. 229; Moore v. Brown, 139 N. Y. 127.)</p> <p>The contract, the validity of which is involved in this action, is not a “ lease or concession,” within the meaning of the statute; nor was it made for proper rentals or upon other proper terms; many of its provisions are in violation of the statute authorizing the board to grant leases or concessions, and the same is, therefore, unauthorized and void. (Syracuse Water Co. v. City of Syracuse, 116 N. Y. 167; Parpitt v. Furguson, 159 N. Y. 111; Gale v. Vil. of Kalamazoo, 24 Mich. 344; Milhau v. Sharp, 27 N. Y. 611; Smith v. Cornelius, 30 L. R. A: 747; Haggart v. Morgan, 5 N. Y. 422; National Construction Co. v. H. R. W. P. Co., 179 N. Y. 439; National Contract Co. v. Hudson River Water Co, 192 N. Y. 220; Bell v. Leggett, 3 Seld. 176; Dugan v. Anderson, 36 Md. 507; Johnson v. Trask, 116 N. Y. 136.) The statute, while using the words “ may grant leases or concessions for the use of any portion of the said land, water or gases,” does not contemplate a grant of any vested interest or estate therein; but simply a privilege to enter upon the reservation lands and to bottle and sell the water. (Smith v. Cornelius, 35 L. R. A. 747; Jones v. Kansas City, 178 Mo. 528; Moore v. Brown, 139 N. Y. 127; Roberts v. Lynn Ice Co., 73 N. E. Rep. 523; Huntington v. Asher, 96 N. Y. 604.) This action is, in substance, clearly against the state and cannot be maintained. (Sanders v. Saxton, 182 N. Y. 477.) It is elementary in the law of contracts that where the covenants to be performed are wholly executory, either party may refuse to perform and thereby breach the contract, in which event the party not in default has a just claim for damages. (Parr v. Village of Greenbush, 112 N. Y. 260; People v. Stephens, 71 N. Y. 527.) The legal effect of chapter 204 of the Laws of 1917, which created a capital fund for the use of the Saratoga Reservation and directed the conservation commission to bottle and market the surplus waters of said reservation was not to impair the obligation of the contract, but rather to ratify the action of the conservation commissioner in refusing to perform it. (Danolds v. State, 89 N. Y. 36; Lord v. Thomas, 64 N. Y. 127; Cook v. Gray, 2 Houst. 455; Caldwell v. Donaghey, 45 L. R. A., N. S., 721.)</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 November 27, 1917, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The nature of the actions and the facts, so far as material, are stated in the opinion.

Appeal in the first above-entitled action, by permission, from a judgment of the Appellate Division of the Supreme ‘Court in the first judicial department, entered March 24, 1919, 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 complaint states facts sufficient to constitute a cause of action. (Whitney v. Town of Ticonderoga, 127 N. Y. 40; Winchell v. Town of Camillus, 109 App. Div. 341, 190 N. Y. 536; Ashberry v. Town of West Seneca, 33 N. Y. S. R. 431; Dye v. Town of Cherry Creek, 87 Misc.

<p>Master and servant — injuries to boy riding on milk wagon at invitation of the driver—when owner of wagon not liable.</p> <p>Where defendant, a corporation engaged in the selling and delivery of milk, had given explicit directions to the driver of a milk wagon not to allow children to ride in his wagon, and a corresponding rule was printed in the route book given to him, and a notice to the same effect posted in the defendant’s office, the driver had no right or authority to invite the plaintiff, a boy about eleven years of age, to ride with him, and when he did so he acted outside the 'scope of his employment, and hence the defendant is not responsible for the injuries to plaintiff caused by the negligence of the driver while plaintiff was riding with him.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 10, 1918, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special' Term. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not guilty of willful or other negligence. (Bragg v. Central N. E. R. R. Co., 160 App. Div. 603; Sutton v. N. Y. Central R. R. Co., 66 N. Y. 243; Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164; O’Brien v. Erie R. R. Co., 210 N. Y. 96; Feeck v. N. Y. C. R. R. Co., 180 App. Div. 253; Phealan v. Rae, 101 Misc.

The facts, so far as material, are stated in the opinion. The sections of the Code creating the Court of Claims gave that court sufficient authority to hear and determine this claim and was sufficient authority by the state to the Court of Claims to award the damages herein. (Quayle v. State, 192 N. Y. 47; Arnold v. State, 163 App. Div. 253; Bowen v. State, 108 N. Y. 166; Burke v. State, 64 Misc. Rep. 558; Remington v. State, 116 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 20, 1918, 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>There was neither pleading nor evidence to justify a recovery. The respondeat superior rule is inapplicable. (Haskell v. L. H. & P. Co., 209 N. Y. 91; Southwick v. Bank, 84 N. Y. 429; Stewart v. Sulger, 174 App. Div. 841; Massaletti v. Fitzroy, 228 Mass. 487; Lowell v. Williams, 183 App. Div. 701; Morris v. Brown, 111 N. Y. 330; Stensler v. Gas Light Co., 179 App. Div. 774; 226 N. Y. 125; Kennedy v. R. & L. Co., 224 Mass. 207; Walker v. Fuller, 223 Mass. 566; Scott v. Peabody, 153 Ill. App. 103; Walker v. Coal Co., 144 Ga. 695; Hume v. Elder, 178 App. Div. 652.) The court erred in charging that the chauffeur might be found to have willfully and wantonly injured intestate, and in refusing to charge no facts were proved from which willfulness and wantonness could be inferred. (Duree Case, 241 Fed. Rep. 456.)</p> <p>The plaintiff was entitled to recover on the theory that Rolfe was a licensee or invitee. (McHarg v. Adt, 221 N. Y. 510; Phila. & R. Ry. Co. v. Derby, 14 How. [U. S.] 468; Grimshaw v. Lake Shore & M. S. R. R., 205 N. Y. 371; 140 App. Div. 688; Harris v. Perry Co., 1903, 2 K. B. 219; Perkins v. Galloway, L. R. A. 1916 E. 1190; 73 So. Rep. 956; Steamboat New World v. King, 16 How. [U. S.] 467; Adams v. Tozier, 163 App. Div. 751; Patnode v. Foote, 153 App. Div. 494; Royal Indemnity Co. v. P. & W. Refining Co., 98 Misc. Rep. 631; Stern v. International Ry. Co., 167 App. Div. 503; 220 N. Y. 284; Beard v. Klusmeier, 158 Ky. 153; Fitzjarrell v. Boyd, 91 Atl. Rep. 547; Huddy on Automobiles, § 113; Geibel v. Elwell, 19 App. Div. 285.) There was no error in the submission of the case to the jury. (Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129; Johnson v. Coey, 237 Ill. 88; Stern v. International Ry. Co., 167 App. Div. 503; 220 N. Y. 284; Countryman v. Fonda, J. & G. R. R., 166 N. Y. 201; Kelly v. Willis, 116 App. Div. 756; McCahill v. N. Y. Transportation Co., 201 N. Y. 221; Du Bois v. Decker, 130 N. Y. 325; P. & R. Ry. Co. v. Derby, 14 How. [U. S.] 468; Grimshaw v. Lake Shore R. R., 205 N. Y. 371; Harris v. Perry & Co., 1903, 2 K. B. 219; Steamboat New World v. King, 16 How. [U. S.] 467; McHarg v. Adt, 221 N. Y. 510.) The rule of respondeat superior applies. (Lowell v. Frank, 183 App. Div. 701; Perkins v. Galloway, L. R. A. 1916 E. 1190; Scott v. Latting, 140 N. W. Rep. 186; McHarg v. Adt, 221 N. Y. 510.)</p>

In 1903 Lars Erickson and his wife, Anna C. Erickson, lived in Brooklyn. Mrs. Erickson owned a building at 522 Classon avenue in a part of which she lived with her husband. On January 17, 1903, she made her will and on March 27, 1903, she died. By her will she made her husband executor and gave her sister Amanda Tillman, $1,000. She then provided: “Fourth.

The facts, so,far rs material, are stated in the opinion. The court erred in refusing to grant defendant’s motion for a nonsuit and for a direction of a verdict. (St. Louie & S. F. R. R. Co. v. Conarty, 238 U. S. 243.) No error was committed by the court in refusing to grant defendant’s motion for a nonsuit, or to direct a verdict.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 10,1918, 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.

The nature of the action and the facts, so far as material, are stated in the opinion. The defendant was not required to make any demand for payment of the loan or interest or give the insured notice of cancellation, or, having canceled, to give notice of the application of the cash surrender consideration to the payment of the loans, or that there was a surplus. (Clare v. Mutual Life Ins. Co., 201 N. Y. 492; Palmer v. Mutual Life Ins. Co., 38 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The New York Constitution (Art. 1, § 18) and the New York statutes give to the plaintiff the right to recover for pecuniary damages suffered by reason of the negligence of the defendant. Neither the New York Constitution (Art. 1, § 19, as amd.) nor any New York statute, properly construed, deprives the plaintiff of such right.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1919, modifying and affirming as modified an interlocutory judgment of Special Term directing an accounting. The nature of the action, the facts, so far as material, and the questions certified are stated in the opinion. The agreement between the associated architects was terminated by the death of Charles A. Reed.

2 Colliery ” at Lost Creek, Penn. Plaintiff while cleaning a hole earlier prepared to receive a prop, or while inspecting the place preparatory to placing the prop, or just as he arrived at the place for that purpose was injured by a fall of rocks from the roof of the mine. The Appellate Division held that he could not recover since the injury was received while he was necessarily doing or about to do an act to eliminate the cause of the accident.

The action was to recover accumulated penalties for alleged failure on the part of defendant, the treasurer of a corporation, to furnish plaintiff with a statement of the financial affairs of the corporation pursuant to a request served under section 69 of the Stock Corporation Law. The answer alleged that the corporation had gone out of existence and that defendant had no property to plaintiff’s knowledge, of any kind belonging to it in his hands.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered April 14, 1919, which confirmed, on certiorari, a determination of the state tax commission assessing a franchise tax against the relator under chapter 726 of the L'aws of 1917.

Motion to dismiss an appeal from an order' of the Appellate Division of the Supreme Court in the third judicial department, which unanimously affirmed an order of Special Term confirming the report of commissioners in a proceeding under section 42 of chapter 724 of the Laws of 1905, as amended by section 9 of chapter 314 of the Laws of 1906.

The action was to recover upon two policies of life insurance. The defense was that the policies were procured through fraudulent statements of the insured to the defendant’s examining physician as to his condition of health.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 24, 1919, which affirmed an order of Special Term denying a motion for a writ of prohibition.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 6,1919, which affirmed an order of Special Term granting a motion for the continuance of an injunction pendente lite in a taxpayer’s action. The following questions were certified; “ 1.

The orders at Special Term were made on the ground the arbitrators had not carried out the terms of the submission in that they had not complied with certain rules of the New York Produce Exchange forming part of the contract in controversy. The Appellate Division, however, held that these rules were properly disregarded by the arbitrators, because they were inapplicable to the facts in the case.

<p>Motion for re-argument: (See 223 N. Y. 244.)</p>

Appeal, by permission, from a .judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 31, 1919, affirming-a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was in equity to impress a trust upon a certain contract entered into between the defendant International Shipbuilding and Marine Engineering Corporation and the United States Government and for an accounting.

<p>Appeal from a judgment entered April 12, 1912, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff.</p>

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 an order of Special Term granting a motion for leave to serve a supplemental summons and complaint and to make the statutory trustees of a dissolved corporation parties defendant. The following questions were certified: “ 1.

<p>Motion to amend remittitur. (See 226 N. Y. 384.)</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial depart-' ment, entered February 18, 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 intestate, .a boy nine years of age, while crossing Amsterdam avenue between One Hundred and Twenty-eighth and One Hundred and Twenty-ninth streets in the city of New York was struck by defendant’s automobile and killed.

The intestate was killed by one of defendant’s trains while crossing its tracks in the village of Mountaindale.

Knox, deceased, and directing judgment sustaining and directing payment of said legacy.

Plaintiff and the First National Bank of Allegheny, whose assets have been transferred to defendant which has assumed all of its obligations and liabilities, entered into a contract in writing whereby the plaintiff agreed to procure for the bank a certain number of new accounts and the bank agreed to pay plaintiff a certain amount for each account accepted. Plaintiff procured the accounts and the bank paid the agreed compensation for a part thereof.

<p>Decedent’s estate — trust — apportionment between life beneficiaries and remainderipen of subsidiary stocks distributed on dissolution of holding corporation, stock of which formed part of trust fund.</p> <p>This action was brought by trustees under a will for instructions as to the disposition to be made of securities distributed to them by the Standard Oil Company upon its dissolution and in regard to certain stock dividends declared and issued by several of the subsidiaries subsequent to the distribution. The judgment of the Appellate Division is modified in accordance with the principles laid down in U. S. Trust Co. of N. Y. v. Heye (224 N. Y. 242).</p>