Volume 229 — New York Reports

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 23, 1920, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus.</p> <p>The facts, so far as material, are stated in. the opinion.</p> <p>The property of the Bronx parkway is only entitled to exemption from assessment or taxation by reason of the provisions of the Bronx Parkway Act, as amended by chapter 757 of the Laws of 1913, and any such exemption so far as it relates to any assessment or tax for the cost and maintenance of the Bronx valley sanitary sewer passing through the domains of the Bronx parkway commission is repealed by the Bronx Valley Sanitary Sewer Act, as amended by chapter 646 of the Laws of 1917. (People ex rel. Bockes v. Wemple, 115 N. Y. 302; Matter of Washington St. A. & P. R. R. Co., 115 N. Y. 442.) The Bronx valley sanitary sewer assessment is a valid tax and not subject to exemption. (Matter of Turfler, 44 Barb. 46; Roosevelt Hospital v. Mayor, etc., 84 N. Y. 108; Matter of St. Joseph’s Asylum, 69 N. Y. 353; Batterman v. City of New York, 65 App. Div. 576.)</p> <p>The Bronx parkway property is liable for the Bronx sewer tax. (L. 1917, ch. 646, § 1; L. 1918, ch. 535; L. 1917, ch. 646, § 2, subds. A, B; L. 1917, ch. 646, § 13; N. Y., N. H. & H. R. R. Co. v. Port Chester, 149 App. Div. 893; Matter of Murray Hill Bank, 153 N. Y. 199; Matter of Montifiore Home v. Prendergast, 159 App. Div. 644; Matter of Brigham v. City of New York, 227 N. Y. 575; Carroll v. McArdle, 216 N. Y. 232; Matter of Brooklyn C. A. Society v. Prendergast, 166 App. Div. 852; Lyddy v. L. I. R. R. Co., 104 N. Y. 218; Stack v. City of Brooklyn, 150 N. Y. 335; Matter of W. S. A. & P. R. R. Co., 115 N. Y. 442.)</p> <p>Municipal property held for a public use is exempt from taxes and assessments unless specifically subjected to them by statute. (Matter of Hamilton, 148 N. Y. 314; People v. Hess, 157 N. Y. 42; People ex rel. Atkins v. Buffalo, 63 App. Div. 565; People ex rel. Hollock v. Purdy, 72 Misc. Rep. 125; Clark v. Sprague, 113 App. Div. 645; Elwood v. City of Rochester, 43 Hun, 102; 122 N. Y. 229; Schenectady v. Trustees, 144 N. Y. 241; Smith v. City of Buffalo, 159 N. Y. 427; Rochester v. Town of Rush, 80 N. Y. 302; People ex rel. Davidson v. Gilon, 126 N. Y. 147.) The assessment is void because the Sewer Act does not by its terms affect the exemption of the Bronx parkway lands from assessments. (Matter of B. C. A. Society, 166 App. Div. 856; Hassan v. City of Rochester, 67 N. Y. 533; 5 Corpus Juris, 819; Matter of St. Joseph’s Hospital, 69 N. Y. 353; Tucker v. City of Utica, 35 App. Div. 175; Cooley on Taxation [3d ed.], 362; Archer v. City of Mount Vernon, 63 App. Div. 287; 171 N. Y. 639; Smadbeck v. City of Mount Vernon, 124 App. Div. 518; Matter of Locust Ave., 93 App. Div. 416; People ex rel. Empie v. Smith, 216 N. Y. 95; Grimmer v. Tenement House Dept., 204 N. Y. 370; County of Orange v. Ellsworth, 98 App. Div. 279; Staten Island Water Supply Co. v. New York City, 144 App. Div. 318.) The assessment is void on its face by reason of the manner in which it was made. (McInnis v. City of New Rochelle, 99 Misc. Rep. 388.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was at most a licensee and the defendant owed him no duty save to refrain from actively injuring him. (Fox v. Warner Quinlan Co., 204 N. Y. 240; Cusick v. Adams, 115 N. Y. 55; Woods v. Miller, 30 App. Div. 232; Baker v. Otis Elevator Co., 78 App. Div. 513; Eckes v. Steller, 98 App. Div. 76; Racine v. Morris, 136 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 30, 1919, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 23, 1920, which unanimously affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel defendant to pay to the relator the amount of an award in proceedings to open Seventeenth avenue in the borough of Brooklyn. 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 December 30, 1919, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in street closing proceedings. The facts, so far as material, are stated in the opinion.

The appeal is from the affirmance only. The nature of the action and the facts, , so far as material, are stated in the opinion. The method of reclassifying and making up trains is just as proper as the method sanctioned by the Appellate Division of switching and breaking up incoming trains. The railroad lawfully used its own facilities. (B. & A. R. R. Co. v. Vil. of Greenbush, 52 N. Y. 510; Matter of City of Buffalo, 68 N. Y. 167; Ferdon v. N. Y., O. & W. R. R. Co., 131 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 11, 1919, which reversed an order of Special Term denying plaintiff’s motion for judgment on the pleading and directing a dismissal of the complaint and granted said motion.

Division of the Supreme Court in the fourth judicial department, entered June 18, 1918, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, a jury having been waived. 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 fourth judicial department, entered December 17, 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>There is no evidence to sustain the judgment. The verdict of the jury is based upon speculation and conjecture and not upon any proof found in the record. The motions of the defendant for a nonsuit and a direction of a verdict should have been granted. (Houlihan v. P. A. Ins. Co., 196 N. Y. 337; Maryland Casualty Co. v. Edgar, 203 Fed. Rep. 656; L'Ecuyer v. Indemnity L. & A. Co., 97 Kans. 540; Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226; Taylor v. City of Yonkers, 105 N. Y. 202; Schraff v. Jackson, 216 N. Y. 598; Stubbs v. City of Rochester, 163 App. Div. 245; Lucas v. International Paper Co., 131 App. Div. 368.)</p> <p>The evidence clearly shows a burning of the building within the contemplation of the policy of insurance, and the determination of the question as to whether the beneficiary came to her death as a result of the burning building was properly left to the jury to decide on all the facts and circumstances of the case. The Court of Appeals cannot say that there was no evidence to sustain the finding of the jury. (Kleis v. Travelers Ins. Co., 118 Minn. 422; Wehle v. U. S. Mut. A. Assn., 153 N. Y. 116; Singleton v. Phenix Ins. Co., 132 N. Y. 298; De Van v. C. T. A. Assn., 92 Hun, 256; 157 N. Y. 690; Goldschmidt v. Mutual Life Ins. Co., 35 N. Y. S. R. 121; 58 Hun, 611; Thurber v. Com. Travelers Mut. A. Assn., 51 App. Div. 608; Harms v. Met. Life Ins. Co., 67 App. Div. 139; Hodgson v. Preferred A. Ins. Co., 182 App. Div. 381; Tucker v. Mutual Benefit Life Co., 50 Hun, 50; McDonald v. Met. St. Ry. Co., 167 N. Y. 66.)</p>

remitting the matter thereto for the taking of such further proof upon the questions involved as might be submitted by either party.. The nature of the controversy and the facts, so far as material, are stated in the opinion. The orders appealed from are not final orders in an action or special proceeding and, therefore, are not appeal-able to this court.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 23, 1920, which affirmed an order of Special Term denying a motion to overrule a demurrer to the amended complaint and for judgment on the pleading and sustaining said demurrer.

The facts, so far as material, are stated in the opinion. Sections 872 and 873 of the Code of Civil Procedure have been made applicable to proceedings in the Surrogate’s Court by section 2770. (Matter of Plumb, 64 Hun, 317; 135 N. Y. 661; Matter of Shannon, 180 App. Div. 214.) Mandamus was the sole and proper remedy in this case. (Matter of Kelsey v. Church, 112 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 5, 1920, which reversed an order of Special Term overruling a demurrer to the complaint and sustained said demurrer. The nature of the action, the facts, so far as as material, and the question certified are stated in the opinion.

The facts, so far as material, are stated in the opinion. As between the E. & it. Trucking Company and the Gier Auto Trucking Company, the E. & R. Trucking Company are the general employers of Henry Wichser and the Gier Auto Trucking Company are the special employers. (Hartell v. Simonson & Son Co., 218 N. Y. 345; Nolan v. Cranford, 4 State Dept. Rep. 337; 171 App. Div. 959; 219 N. Y. 581; Gimber v. Kane, 2 State Dept. Rep. 475; 171 App.

<p>Appeal — motion for new trial no longer, necessary to bring up for review questions of fact — when reversal of judgment by Appellate Division must be presumed to be upon question of law not of fact — such a reversal can be reviewed only upon proper exceptions.</p> <p>1. An appeal from a judgment rendered on a jury trial now brings up questions of fact as well as questions of law; henee a motion for a new trial before the facts can be considered by the Appellate Division is no longer necessary. (Code Civ. Pro. § 1346; amd. L. 1914, eh. 351.)</p> <p>2. It is now to be conclusively presumed that a reversal of judgments in common-law actions made by the Appellate Division is not on a question of fact unless it be • so plainly stated. (Code Civ. Pro. § 1338; amd. L. 1912, ch. 361.)</p> <p>3. The trial court construed a contract in a manner claimed to be injurious to plaintiff. No exception was taken, nor was there any request to charge so as to raise the question. The Appellate Division reversed both the judgment and order and granted a new trial. Held, that it must be assumed that the reversal is based on the law and not upon the facts or on discretion, and there being no error of the law the action of the Appellate Division must be reversed and the judgment of the trial court reinstated.</p>

. Appeal from a judgment entered May 25, 1918, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff 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.

The nature of the action and the facts, so far as mateerial, are stated in the opinion. A contract calling for the performance of personal services and involving a relation of trust and confidence is not assignable. (Hardy Implement Co. v. South Bend Iron Works, 129 Mo. 222; Nassau Hotel Co. v. B. & B. Corp., 162 App.

The nature of the action and the facts, so far as material, are stated in the opinion. There was no evidence to sustain the jury’s verdict that the defendant was negligent. (Opper v. Hillinger, 116 App. Div. 261.) The plaintiff has proved sufficient facts to constitute a cause of action in negligence. (Beck v. Carter, 68 N. Y. 283; McNulty v. Ludwig & Co., 152 App. Div. 206.)

}■ Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 20, 1919, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1919, in favor of defendant upon an order unanimously dismissing the plaintiff’s claim upon the submission of a controversy under section 1279 of the Code of Civil Procedure. The nature of the controversy and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. The dismissal of the complaint at the close of plaintiff’s case was error. (Biondolillo v. Erie R. Co., 215 N. Y. 330; Higgins v. Eagleton, 155 N. Y. 466; Knapp v. Barrett, 216 N. Y. 226; Greany v. Long Island R. Co., 101 N. Y. 419, 423; Smith v. N. Y. C. & H. R. R. R. Co., 177 N. Y. 224; Kettle v. Turl, 162 N. Y. 255; Hickman v. Schimper & Co., 125 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 7,1918, 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>Negligence — explosives — passer-by, loitering upon street, . injured by accidental explosion of dynamite being used by municipal authorities — when evidence sufficient to sustain verdict for plaintiff.</p> <p>Dynamite was being used in the Onondaga creek in the city of Syracuse, under the supervision of the authorities, to recover the body of a boy who had been drowned. A quantity of dynamite was placed in a motor ear which was left standing near the junction of two streets while it was being prepared for use, when an explosion occurred, severely injuring' the plaintiff who had heard the explosions in the. creek and ridden on his bicycle to the location of the car to see what was going on, and was standing six or eight feet from it when injured. No danger signals were displayed on or about the ear. Held, that the trial justice properly charged the jury that the plaintiff was bound to prove by a fair preponderance of evidence, first, that the condition as it existed on the highway that day was a nuisance; second, that it had existed for so long a period of time that the city in the exercise of reasonable care and diligence on its part should have discovered and remedied it in order to perform the duty which rested upon it under the law to make its highways safe; third, that the plaintiff was bound to show that he himself was not guilty of any negligence which contributed to his injury and that he was exercising ordinary and reasonable care under the circumstances as they existed there for his own protection; fourth, that the plaintiff was a lawful traveler on the highway and was properly and lawfully where he was when he was injured and it was for the jury to determine as a question of fact whether he had assumed the risk. At most, plaintiff was a loiterer or casual observer upon the street and was not a spectator voluntarily consenting to or assuming the risk of injury. (Second Class Cities Law [Cons. Laws, ch. 53], §§ 91, 244; Labor Law, art. XV-a [Cons. Laws, ch. 31; Laws 1905, ch. 685, § 17]; Johnson v. City of New York, 186 N. Y. 139, 151, distinguished.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence presented a question of fact for the jury as to whether the guaranty executed by defendant did or did not cover plaintiff’s claim against Moses Silverstein.

The nature of the action and the facts, so far as material, are stated in the opinion. The exclusion of the several letters comprising the correspondence between plaintiff and defendant was reversible error. (Emmett v. Penoyer, 151 N. Y. 567; Cooper v. Payne, 186 N. Y. 334; 186 App. Div. 966; Routledge v. Worthington Co., 119 N. Y. 592; Akberg v. Kress Brewing Co., 65 Hun, 182; Tocci v. Arata, 16 Daly, 494; Medical College v. N. Y. University, 76 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The written assignment of the Midtown Contracting. Company was a transfer of the legal title to the specified portion of the payment, and after the delivery of that assignment, the assignor had no legal right, by virtue of the assignment, to collect the plaintiff’s portion of that payment.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 21,1920, which unanimously affirmed an order of Special Term denying, as matter of law, an application for a peremptory writ of mandamus to compel the allowance of certain credits upon assessments of special franchises of the petitioner. The facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. In the regular course of his employment claimant was first insulted and then kicked so as to produce severe injuries without any fault upon his part. The accident took place in the course of and must be said to have arisen out of the employment. (Carbone v. Loft, 174 App.

' The nature of the action and the facts, so far as material, are stated in the opinion. The condition of the policy was not violated by the chattel mortgage which was usurious and void and, therefore, did not incumber the property nor increase the moral hazard. (Joyce on Ins. [2d ed.] 3391, § 2022; Richards on Ins. [2d ed.] 178; Marshall v. C. T. Assn., 170 N. Y. 434; Griffey v. N. Y. C. Ins. Co., 100 N. Y. 417; Conover v. Mutual Ins. Co., 1 N. Y. 290; A. Ins.

' Appeal from a judgment entered December 12, 1917, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff 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. It was error for the Appellate Division to reverse the judgment and to dismiss, the complaint.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 30, 1920, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action for partition of real property.

The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states a cause of action under the provisions of section 51 of the General Municipal Law and section 1925 of the Code of Civil Procedure. (Bush v. Coler, 60 App. Div. 56; 170 N. Y. 587; Altschul v. Ludwig, 216 N. Y. 459; Warrin v. Baldwin, 105 N. Y. 534; Queens County Water Co. v. Monroe, 83 App.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1919, unanimously afiirming a judgment in favor'of defendant entered upon an order of Special Term sustaining a demurrer to the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The agreement imposed a joint and several liability upon the defendants’ testator, and the estate of the husband was not a' necessary party defendant. (Pearce v. Edmeades, 3 Y. & C. Eq. 246; Doe v. Royal, L. R. 13 Q. B. 105; Theberath v. C. Mfg. Co., 3 Fed. Rep. 143; Morrison v. Am. Surety Co., 224 Penn. St. 41; Besore v. Potter, 12 S. & R. 154; Geddis v. Hawk, 10 S. & R. 33; Hanley v. City of Medford, 56 Ore. 171; Jacobs v. Davis, 34 Md. 204; Consolidated Canal Co. v. Peters, 5 Ariz. 80; Commercial Nat. Bank v. Graham, 11 R. I. 162; Kortwellyeszsy v. Manhattan Cooperage, 162 App. Div. 285.) Even though there was a joint liability only imposed by the contract, the estate of plaintiff’s husband was not a necessary party defendant. (Getty v. Binse, 49 N. Y. 385; Potts v. Dounce, 173 N. Y. 335; T. Nat. Bank v. Graham, 174 App. Div. 503.) It was not necessary to allege non-payment by the plaintiff’s husband during his lifetime and the insolvency of his estate. (Lerche v. Brasher, 104 N. Y. 157; Matter of Rowell, 45 App. Div. 323; Hicks-Alixanian v. Walton, 14 App. Div. 199; Bramer v. Ring, 146 App. Div. 724; Matter of Niel, 35 Misc. Rep. 254; Nat. Surety Co. v. Seaich, 171 App. Div. 414.) The agreement in suit is entirely valid, and in nowise contravenes or is opposed to public policy. (L. 1896, ch. 272, § 21; Sommer v. Sommer, 87 App. Div. 434; Holmes v. Hubbard, 60 N. Y. 183; Bock v. Perkins, 139 U. S. 639; Dady v. O’Rourke, 172 N. Y. 452; Beardsley v. Hotchkiss, 96 N. Y. 213; Fullerton v. Chatham Nat. Bank, 17 Misc. Rep. 532; Timerson v. Timerson, 2 How. [U. S.] 526; Pitts v. Pitts, 52 N. Y. 593; Johnson v. Johnson, 14 Wend. 637; Burr v. Burr, 10 Paige, 20; 7 Hill, 207; Davies v. Davies, 55 Barb. 130.) There is ample valid consideration shown in the agreement in suit to sustain this action against the defendant. (Best v. Thiel, 79 N. Y. 15; Torry v. Black, 58 N. Y. 185; Home Ins. Co. v. Watson, 59 N. Y. 390; Dubois v. Heermance, 56 N. Y. 673; Baird v. Baird, 145 N. Y. 659; Antisdel v. Williamson, 37 App. Div. 167; Quackenbush v. Mapes, 123 App. Div. 242; Todd v. Weber, 95 N. Y. 181; Hamer v. Sidway, 124 N. Y. 538; Marie v. Garrison, 83 N. Y. 14.)</p> <p>The failure of the plaintiff to allege in the complaint that her husband, prior to his death, on the 6th day of February, 1917, had omitted or failed to make the payments provided for in the contract and that his estate is insolvent is fatal to the cause of action attempted to be alleged. (P. W. Coal Co. v. Kerr, 220 N. Y. 137.) The agreement is void as being against public policy. (Winter v. Winter, 191 N. Y. 462; Poillon v. Poillon, 49 App. Div. 341; Whitney v. Whitney, 4 App. Div. 597; Kesler’s Estate, 143 Penn. St. 386; Copeland v. Boas, 9 Baxt. 223; Merrill v. Peaslee, 146 Mass. 460; Adams v. Adams, 91 N. Y. 381; Sommer v. Sommer, 87 App. Div. 434; Ridgely v. Keene, 134 App. Div. 647; Foley v. Speir, 100 N. Y. 552.) The contract is also void for lack of consideration. (Matter of Callister, 153 N. Y. 294; Blacchinska v. Howard Mission & Home, 130 N. Y. 497; Van Order v. Van Order, 8 Hun, 315; Kramer v. Kramer, 181 N. Y. 477.) The estate of the husband, through its legally appointed representative, is a necessary party defendant. (Knowles v. Cuddeback, 19 Hun, 590; Barry v. Ransom, 12 N. Y. 462; Hubbard v. Gurney, 64 N. Y. 458; Easterly v. Barber, 66 N. Y. 433; Wells v. Miller, 66 N. Y. 255; Barson v. Mulligan, 191 N. Y. 306; O’Conner v. Gifford, 117 N. Y. 275; Baskin v. Andrews, 53 Hun, 95; Richardson v. Draper, 87 N. Y. 337; Potts v. Dounce, 173 N. Y. 335.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Whatever the difference of view there may be as to the effect of ultra vires on corporate contracts, in no jurisdiction can a party retain what it has received under such a contract and refuse to perform the contract. (Appleton v. C. C. Nat. Bank, 190 N. Y. 417; C. C. Nat. Bank v. Appleton, 216 U. S. 196; Washington Life Ins.

<p>Appeal from a judgment entered July 12, 1918, upon an order of the Appellate Division of the Supreme Court in the second judicial deportment, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived, 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>Plaintiff not having any knowledge of the illegality of the transaction, is entitled to recover. (Saltzsider v. Saltzsider, 219 N. Y. 523; Townsend v. Hirshkind, 176 App. Div. 520; 223 N. Y. 698; Henry v. Allen, 151 N. Y. 1; Bienenstock v. Ammidown, 155 N. Y. 47; Stillman v. Northrup, 109 N. Y. 473; Van Wyck v. Watters, 81 N. Y. 352; Estevez v. Purdy, 66 N. Y. 446; Insurance Co. v. Kashaw, 66 N. Y. 544; Phillips v. MacKellar, 92 N. Y. 34.) The judgment roll in the foreclosure action is not res judicata. (Anderson v. Culver, 127 N. Y. 377; Butterworth Co. v. Sturtevant Co., 176 App. Div. 528; Raymond v. Richmond, 78 N. Y. 351; Brooks v. Wilson, 125 N. Y. 256; Winston v. Starke, 12 Gratt. [Va.] 317; Van Camp v. Fowler, 61 Hun, 626; 133 N. Y. 600; Booth v. Powers, 56 N. Y. 22; Shipman v. Rollins, 98 N. Y. 311; Moore v. City of Albany, 98 N. Y. 396; Fish v. Vanderlip, 218 N. Y. 29.)</p> <p>The only theory upon which the plaintiff would be entitled to recover, if at all, is that she made the loan in good faith, believing in and relying upon the covenant in the so-called assignment, thereby estopping the defendant to deny his liability, but plaintiff made no such claim. (Wilcox v. Howell, 44 N. Y. 398; Payne v. Burnham, 62 N. Y. 69; Mechanics Bank v. N. Y. & N. H. R. R. Co., 13 N. Y. 599; Bridger v. Goldsmith, 143 N. Y. 424; Malloney v. Horan, 49 N. Y. 111; Shapely v. Abbott, 42 N. Y. 443; Haines v. Barber, 113 App. Div. 696; 16 Cyc. 720; Saxton v. Dodge, 57 Barb. 84; Colvin v. Shaw, 61 N. Y. S. R. 174; Trustees of Union College v. Wheeler, 61 N. Y. 114; Schafer v. Reilley, 50 N. Y. 61; Greene v. Warwick, 64 N. Y. 225; Westbrook v. Gleason, 79 N. Y. 30; Viele v. Judson, 82 N. Y. 38; Bennett v. Bates, 94 N. Y. 363.) The plaintiff cannot recover in this action because the covenant in the assignment of the mortgage is supported by an illegal consideration. (Barton v. P. J. & U. F. F. R. Co., 17 Barb. 397; Goodrich v. Houton, 55 Hun, 526; Shanz v. Sotscheck, 167 App. Div. 202.)</p>

The facts, so far as material, are stated in the opinion. Under the indictment for manslaughter in the first degree the appellant cannot he convicted of the crime of assault in the first degree. (People v. Huson, 187 N. Y. 97; People v. Brown, 123 N. E. Rep. 515; Posey v. State, 95 S. E. Rep. 325; State v. Albutt, 99 Wash. 253; State v. Lichter, 102 App.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme. Court in the first judicial department, entered March 19,' 1920, affirming a final judgment in favor of defendant dismissing the complaint, and bringing up for review a prior order of said Appellate Division which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The contract in suit is not an accord executory but a completed accord and satisfaction, because the defendant plainly- intended to accept the plaintiff’s covenant to pay, first, $12,500 in cash, and second, $3,000 per annum during the defendant’s life, as satisfaction of her disputed claim at law. In other words, the defendant accepted the plaintiff’s covenant and riot his performance as a satisfaction. (Kromer v. Heim, 75 N. Y. 574; Reilly v. Barrett, 220 N. Y. 170; Jodrell v. Jodrell, 9 Beav. 45; Morehouse v. S. Nat. Bank, 98 N. Y. 503; Davis v. Spencer, 24 N. Y. 386; Nassoiy v. Tomlinson, 148 N. Y. 326; Bandman v. Finn, 185 N. Y. 508; Billings v. Vanderbeck, 23 Barb. 546; Spier v. Hyde, 78 App. Div. 151; Schweider v. Lang, 29 Minn. 254; United, etc., Rubber Co. v. Conrad, 80 N. J. L. 286.) The plaintiff is entitled to specific performance of the contract and to an injunction against the prosecution of the action at law. (Deen v. Milne, 113 N. Y. 303; Bandman v. Finn, 185 N. Y. 508; Burton v. London, 66 Vt. 361; Boston & Maine R. R. v. Union Mut. Fire Ins. Co., 83 Vt. 554; Cook v. Richardson, 178 Mass. 125; Fred v. Fred, 50 Atl. Rep. 776, 779; Chicora Fert. Co. v. Duncan, 91 Md. 144; Very v. Levy, 13 How. [U. S.] 345; Chandler v. Pomeroy, 143 U. S. 318; Matter of Freeman, 117 Fed. Rep. 680.) Plaintiff is entitled to specific performance of the entire contract. It is not open to doubt that all the things which the defendant covenanted to do are things of which a court of equity will decree specifi performance. (Raftery v. W. F. Corp., 180 App. Div. 475; Evans v. Van Hall, Clarke’s Ch. 17; Cushman v. Thayer Mfg. Jewelry Co., 76 N. Y. 365; Lang v. Thacher, 48 App. Div. 313; Onondaga Nation v. Thacher, 29 Misc. Rep. 428; 53 App. Div. 561; 169 N. Y. 584; Pattison v. Skillman, 34 N. J. Eq. 344; Schrafft v. Wolters, 61 N. J. Eq. 467; Bindseil v. Smith, 61 N. J. Eq. 654; Dock v. Dock, 180 Penn. St. 14; 3 Parsons on Contracts [7th ed.], §§ 329, 330; 2 Story’s Eq. Juris. [13th ed.] §§ 709, 710; 1 Pom. Eq. Juris. [4th ed.] § 185; Vosburgh v. Teator, 32 N. Y. 561; Wahl v. Barnum, 116 N. Y. 87; Bomeisler v. Forster, 154 N. Y. 229.) The defendant having entered into a contract of a higher nature, i. e., a specialty, has lost the right to continue her action at law. It is merged in the specialty. (Cursom v. Monteiro, 2 Johns. 308; Frisbie v. Larned, 21 Wend. 450, 453; Pleasants v. Meng, 1 Dall. 380; Babcock v. Hawkins, 23 Vt. 561; Williams v. Hodgson, 2 Har. & John. [Md.] 474; Jones v. Johnson, 3 Watts & Serg. [Penn.] 276; Chitty on Contracts, *6; Leake on Contracts [6th ed.], 681-683; Anson on Contracts [Corbin’s ed. 1919], 488, 489.)</p> <p>The alleged agreement upon which the action is founded is an accord only, and there being no satisfaction, it is insufficient as a defense and cannot form the basis of a cause of action. (Brooklyn Bank v. De Grauw, 23 Wend. 342; Noe v. Christie, 51 N. Y. 270; Mance v. Hossington, 205 N. Y. 33; Reilly v. Barrett, 220 N. Y. 170; Wahl v. Barnum, 116 N. Y. 87; Kromer v. Heim, 75 N. Y. 574; Panzerbeiter v. Waydell, 21 Hun, 161; Smith v. Cranford, 84 Hun, 318; 155 N. Y. 640; Day v. Roth, 18 N. Y. 448; Goffe v. Jones, 132 App. Div. 864.) The plaintiff is not entitled to specific performance or to an injunction against the prosecution of the action at law. (Rubin v. Seigel, 181 App. Div. 181; Van Winkle v. Reynolds, 157 App. Div. 901; Day v. Roth, 18 N. Y. 448.) Specific performance will never be enforced if injustice will be done thereby. (Finkel v. Kohn, 38 App. Div. 199.)</p>

Appeal -from a judgment entered Hay 18, 1920, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department, which reversed a judgment rendered at a Trial Term for the county of Dutchess upon a verdict convicting defendant of the crime of illegal hypothecation of customers’ securities and directed a dismissal of the indictment. 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 building zone resolution is not an incumbrance within the meaning of the contract. (Anderson v. Steinway & Sons, 178 App. Div. 507; 221 N. Y. 639; Goodrich v. Pratt, 114 App. Div. 771; Bull v. Burton, 227 N. Y. 101; Dethloff v. Voit, 172 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 4, 1920, affirming a judgment in favor of defendant 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>If the zone resolution was a valid exercise of the police power it created no incumbrance on the premises 114 West Fifty-eighth street. (Forster v. Scott, 44 N. Y. S. R. 212; T. H. Dept. v. Moeschen, 179 N. Y. 325; Hathaway v. Payne, 34 N. Y. 103; Ferry v. Stephens, 66 N. Y. 321, 325; Clarke v. Long Island Realty Co., 126 App. Div. 282; Ward v. Union Trust Co., 224 N. Y. 73; Huyck v. Andrews, 113 N. Y. 81.) The state did not and could not by direct legislative act, much less by delegation of discretionary authority to the city, create such an incumbrance on real estate as would prevent the owner from disposing of it under a contract to give a title free from incumbrances. (Forster v. Scott, 136 N. Y. 577; Stuart v. Palmer, 74 N. Y. 183; Buchanan v. Warley, 245 U. S. 60.)</p> <p>The respondent’s rejection of the title was justifiable. (Stoutenberg v. Tompkins, 9 N. J. Eq. 335; Terry v. Westing, 5 N. Y. Supp. 99; United States v. Bethlehem Steel Co., 205 U. S. 105; Smith v. Vose, 194 Mass. 193; Nokes v. Kilmorey, 1 De G. & Sm. 44; Krell v. Harvey, 2 K. B., 1903, 740.) The variance existing between the statement of the restrictions affecting the appellants’ property contained in the contract and the actual restrictions was sufficient ground for the respondent’s refusal to perform. (Terry v. Westing, 5 N. Y. Supp. 99; Lese v. Lamprecht, 196 N. Y. 32.) The fee was to-be conveyed free from all incumbrances excepting those which are distinctly specified, and the building zone restriction may be deemed within the fair import and meaning of the exceptional clause. (Anonymous, 2 Abb. [N. C.] 56; 16 Am. & Eng. Ency. of Law [2d ed.], 158.) Where a contract is entered into on the assumption by both parties that a particular state of things exists or will occur, the non-existence or the non-occurrence of that state of things through default of neither party discharges the contract. (Krell v. Henry, 2 K. B. 740; Taylor v. Caldwell, 3 B. & S. 826; Wells v. Calman, 107 Mass. 514.) The contract expressly provides for a revocation and defeasance and it is obvious that this provision should have the effect of a condition, absolute in its nature. (Bank of Montreal v. Recknagel, 109 N. Y. 482; Grey v. Tubbs, 43 Col. 359; Lake v. McElfatrick, 139 N. Y. 349; Wells v. Smith, 7 Paige Ch. 22; West v. Guaranty Trust Co., 162 App. Div. 301; Howard v. Breitung, 172 App. Div. 749; Anson on Contracts [14th ed.], 335.) If, during the pendency of the action, there has been a change in conditions and circumstances and the vendee sustains an injury, or if circumstances have intervened which will render performance by the vendee prejudicial or detrimental to him, the court will not decree specific performance. (Schmidt v. Reed, 132 N. Y. 109; Jackson v. Edwards, 22 Wend. 498; Garnett v. Macon, 2 Brock. 185; Nokes v. Kilmorey, 1 De G. & Sm. 44; Gale v. Archer, 42 Barb. 320; Goldsmith v. Guild, 10 Allen, 241; Griffin v. Cunningham, 19 Gratt. 571; Broshier v. Gratz, 6 Wheat. 528; Colcock v. Butler, 1 Dessaus. Eq. [S. C.] 307; McKay v. Carrington, 1 McL. [Tenn.] 59.)</p>

The facts, so far as material, are stated in the opinion. The People failed to make a case against this defendant and upon the facts the indictment should be dismissed. (People v. Marwig, 227 N. Y. 282;. People v. Cohen, 223 N. Y. 406; People v. Zucker, 20 App. Div. 363, 154 N. Y. 770.) The trial court erred in excluding testimony of bias, hostility and corruption.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 5, 1919, which reversed an order of Special Term denying a motion for a writ of prohibition and granted said motion. 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 January 23, 1920, which affirmed an order of Special Term granting a motion for a writ of prohibition. 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 Maich 5, 1920, which affirmed an order of Special Term denying a motion to set aside service of the summons in the above-entitled action.

Shonts, deceased, to the respondent herein. The facts, so far as material, are stated in the opinion. The order appealed from is an order finally determining a special proceeding within the meaning of subdivision 1 of section 190 of the Code of Civil Procedure. (Matter of Tilden, 98 N. Y. 434; Matter of Leland, 219 N. Y. 387; Matter of Bergdorf, 206 N. Y. 309; Matter of Hill, 215 N. Y. 694.) The reversal by the Appellate Division was upon the law and not upon the facts.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart- • ment, entered May 28, 1920, which affirmed, as a matter of law and not in the exercise of discretion, an order of Special Term denying a motion for a premptory writ of mandamus. The facts, so far as material, are stated in the opinion. The Constitution expressly requires succession in the office of justice of the Supreme Court.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 21, 1920, which affirmed a decree of the Seneca County Surrogate’s Court construing the will of Horace Silsby, deceased. The facts, so far as material, are stated in the opinion. The remainder is contingent.

<p>Will — probate — revocation of a will must be consummated by some of the acts specified in the statute — when writing directing destruction of will not sufficient to constitute a revocation.</p> <p>1. To revoke a will it is necessary not only that there should be an intent to revoke the will, but the intent must be consummated by some of the acts specified in the statute (Decedent Estate Law [Cons. Laws, eh. 13], § 34), or by the execution of an instrument “ declaring such revocation.” It is not within the legitimate power of the courts to dispense with the requirements of the statute in the execution or revocation of wills and accept even a definite intention to perform the prescribed act in connection therewith for the act itself.</p> <p>2. Decedent executed a will and left the same with the executor named therein. Findings sustained by the evidence show that two days before her death she directed the writing of a note to her said executor, which she signed in the presence of two witnesses, who at her request affixed their names as witnesses thereto, reading as follows:</p> <p>“ Dr. O’.Kennedy: “ July 3, 1918.</p> <p>“ Dear Friend.— Please destroy the Will I made in favor of Thomas Hart. “ MARGARET McGILL.”</p> <p>On the back of the note were the signatures of the witnesses. This note was delivered to the executor, who had the will in his possession, before the death of the testatrix. The will was not destroyed but was, after decedent’s death, offered for probate. Held, that the execution of the paper did not in and of itself constitute an absolute and unqualified revocation of the will and, in the absence of evidence that she intended the act of signing to be in itself a complete revocation, the will was properly admitted to probate.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. It was the duty of the defendant to have in readiness on January 2, 1914, the date of the commencement of the term named in the contract, the fourteen water-front dumps designated therein, and the failure to deliver possession of four of the said dumps at that time was a breach of the contract by the defendant. (McAdam on Landlord & Tenant [4th ed.] 370, § 106; 18 Am. & Eng.

The nature of the action and the facts, so far as material, are stated in the opinion. The judgment of dismissal was right and should be reiÆnstated. (Hygienic Ice & R. Co. v. Phil. Casualty Co., 162 App. Div. 190; 222 N. Y. 583.) The letter of April 14, 1914, was not a waiver of the breach. (Allen v. German-American Ins. Co., 123 N. Y. 6; Baumgartel v. Providence-Washington Ins. Co., 136 N. Y. 547; Quinlan v. Providence-Washington Ins.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 1, 1919, which unanimously 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. A writ of prohibition will issue. (People v. Johns, 80 Misc.

The facts, so far as material, are stated in the opinion. The finding of the jury was contrary to law and contrary to the evidence and weight of evidence. The objections should have been dismissed and the will directed for probate. (Brick v. Brick, 66 N. Y. 144; Matter of Ruef, 180 App. Div. 204; 223 N. Y. 582; Matter of Fleischmann, 176 App. Div. 786; Matter of Powers, 176 App. Div. 456; Matter of Dunn, 184 App. Div. 386; Matter of Goodhart, 173 App.

Appeal, in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 24, 1919, confirming, on certiorari, in the first proceeding a determination by the state tax commission, and in the second proceeding a determination by the state comptroller refusing to revise and readjust franchise taxes assessed against the relator. 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 March 5, 1920, which unanimously affirmed an order of Special Term adjudging appellant herein guilty of criminal contempt in violating an injunction order. 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 April 9, 1920, which reversed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings and remitted the proceeding to a new •commission for re-appraisal. The facts, so far as material, and the questions certified are stated in the opinion.

<p>Workmen’s " Compensation Law — when injury to one employee by act of another arises “ out of and in the course of employment.”</p> <p>Where claimant while engaged in the performance of his duties in his employer’s factory was struck in an eye by an apple which one of his fellow-servants, a boy, threw at another boy, in consequence of which claimant lost the better part of the sight of the eye, he is entitled to an award under the Workmen’s Compensation Law (Cons. Laws, chap. 67, § 3, subd. 7). The accident was one “ arising out of and in the course of employment ” within the meaning of the statute, since the claimant was injured not merely while he was in a factory, but because he was in a factory, in touch with associations and conditions inseparable from factory life, and the risks of such associations and conditions were risks of the employment.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 19, 1920, which reversed an order of Special Term overruling a demurrer to the second .cause of action set forth in the complaint and sustained such demurrer.

<p>Workmen’s Compensation Law — free transportation of railroad employee — injury on his way home — when such employee mere passenger and not entitled to award under the statute.</p> <p>1. The Workmen’s Compensation Law is not applicable to an injury which arises through a danger or hazard dissociated from or not inherent in the nature of the employment as its source and to which the employee would have been equally exposed apart from the employment.</p> <p>2. Where decedent, who was an employee of an elevated railway and had finished his work for the day, went out upon a station platform with the intention and for the purpose of taking a passenger train to his home — the company permitting him to ride to and from his work upon the cars or trains without charge, although it was not obligated to transport him — he did not do so as an employee but as a prospective passenger, and where he was found dead upon the tracks a short distance from the platform, at a point where the general public or passengers had no right to be,.his death having been caused by electrocution by contact with the third rail and fractures which he sustained, such injuries were received after decedent had left the place of his employment and did not arise out of and in the course of his employment.</p>

The facts, so far as material, are stated in the opinion. Surrogates’ Courts are courts of strictly limited jurisdiction, deriving their powers exclusively from statutory enactment, and to sustain such jurisdiction legislative authority must be affirmatively shown. (Geduld v. Baltimore & O. R. R. Co., 55 Misc. Rep. 239; Henneke v. Schmidt, 121 App. Div. 516; Carpenter v. Pirner, 107 N. Y. Supp. 875; People ex rel.

The facts, so far as material, are stated in the opinion. To be subject to tax under section 182 of the Tax Law, a corporation must both do business and employ capital within the state of New York. (People ex rel. Harlan & Hollingsworth Co. v. Campbell, 139 N. Y. 68; People ex rel. Chicago Junction Railways, etc., Co., v. Roberts, 154 N. Y. 1.) The relator employed no part of its capital stock within this state during the year ended October 31, 1916. (People ex rel.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 10, 1918, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for the alleged conversion of certain household furniture and furnishings.</p>

Respondent contended that the order appealed from was not'final and, therefore, not appealable, as of right, to the Court of Appeals.

<p>Malicious prosecution —■ insufficiency of evidence.</p> <p>In the absence of evidence that defendant directly authorized or subsequently ratified the act of án employee in instituting criminal proceedings against plaintiff, on a charge of having stolen goods from defendant, or that said employee was acting within the scope of his employment or within the limits of authority which had been conferred upon him by defendant, and where it appears that defendant did nothing which could reasonably be regarded as authorizing prosecution of plaintiff, a complaint for malicious prosecution should be dismissed.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 12, 1918, which reversed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff and directed a dismissal of the complaint. The action was for wages alleged to be due.

The action was to recover a balance alleged to be due for building a sewer in the city of New York. Of the amount claimed $7,830 had been retained by the city as liquidated damages for delay in completion of the work, $1,462.14 had been retained as payment for city water used on the work and $1,709.30 was retained to pay for removing and relaying a certain water main.

<p>Crimes — conviction for murder in first degree affirmed — unsatisfactory record■—failure to refer in brief to folios of record—duty of district attorney in preparation of record and brief.</p>

Motion to dismiss an appeal from a judgment entered March 29, 1920, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, unanimously affirming interlocutory and final judgments entered pursuant to an order of said Appellate Division reversing a judgment in favor of defendant entered upon a dismissal of the .complaint by the court at an Equity Term.

<p>Motions for amendment of remittitur, for leave to serve amended complaint and for a re-argument. (See 229 N. Y. 44.)</p>

<p>Motion to amend remittitur. (See 228 N. Y. 309.)</p>

Cross-appeals in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 29, 1919, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term bringing up for review an order of said Appellate Division which reversed an order of Special Term denying a motion to resettle the findings of fact and conclusions of law.

Appeal, in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 12,1920; which dismissed a writ of certiorari and affirmed the proceedings of the public service commission denying an application, by relatois, for permission to increase the rate of fare for transportation of passengers on a street surface railway.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 30, 1920, which reversed an order of Special Term granting a motion by plaintiff for judgment in its favor upon the pleadings and denied said motion. Plaintiff contracted to sell and deliver to one of the individual defendants caustic soda in four shipments of five cars each.

<p>Motion for a re-argument or in the alternative that the case be remitted to the Appellate Division to permit that court in its discretion to amend its order and judgment so as to specify the particular question of fact, if any, upon which its reversal was based. (See 229 N. Y. 106.)</p>

The action was on a contract to pay plaintiff a commission for his services in securing for defendant a contract with the Russian government for the manufacture of 1,000,000,000 cartridges at the price of $37,500,000, if such contract should be “ accepted and executed ” by defendant, such commission to be paid “ as and when ” payments were received from the Russian government, and out of amounts so received.

<p>' Appeal —• unanimous affirmance of order of trial court setting aside verdict and granting new trial — Court of Appeals may entertain appeal therefrom.</p> <p>Under subdivision 2 of section 190 of the Code of Civil Procedure an appeal may be taken, as of right, to the Court of Appeals from an unanimous affirmance by the Appellate Division of an order of the court at a Trial Term setting aside a verdict and granting a new trial upon exception.</p>

On October 4, 1917, the state industrial commission made an award to-James Casmey for injuries received while in the employ of respondent George Parks’ Sons, of 177 weeks’ disability at the rate of $15 per week, the same to be paid in the sum of $30 every two weeks, beginning on October 4, 1917; in addition to which there was to be paid at once the sum of $120 for the period from July 19, 1917, to October 4, 1917.

The claimant was an independent contractor, who had a contract to make an excavation which he was performing through his own labor and that of his men, by the use of a derrick, a gas engine and other equipment. He was asked by the Hudson Shoring Company, which also had a contract relating to the same job, to assist with his derrick in lifting a timber for that company.

The claimant was employed as an assistant foreman of carpenters in the construction of a building. His employer was a corporation which had placed a man named Wallace in charge of the building to act as superintendent of the work of construction. At about six o’clock on a certain afternoon, Wallace stepped up to the claimant, who was still at work, and asked him to drive him home.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 9, 1920, which affirmed an order of Special Term adjudging the appellant herein guilty of a civil contempt.

<p>Motion for re-argument. (See 229 N. Y. 575..)</p>