Volume 230 — New York Reports

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 20, 1920, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus and granted said motion.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 14, 1920, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment, entered January 9, 1919, upon an order of the Appellate' Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Contributory negligence — pedestrian struck by car because he misjudged its speed — when guilty of contributory negligence as matter of law.</p> <p>1. A pedestrian crossing a street in front of and a short distance from an approaching trolley ear is as much obligated to look out for his own safety as is the motorman. Although a pedestrian struck by a ear under such circumstances may have thought that he could get across the tracks before the car reached him and the motorman also may have believed that he would do so, and each made a mistake, and the evidence which establishes the negligence of one equally establishes the negligence of the other, to permit a jury, under such circumstances, to say that the pedestrian’s injuries were caused solely by the negligence of the motorman would be to predicate a verdict upon pure speculation.</p> <p>2. Where plaintiff, who was walking across a street, saw, as he reached the space between the north and south-bound tracks of a street railway, a south-bound trolley car rapidly approaching and about twenty-nine feet away, but, thinking that he could get across without being struck, proceeded without increasing his speed and, as he was about to clear the south-bound track, was struck and seriously injured, it must be held that he was, as matter of law, guilty of contributory negligence. {Knapp v. Barrett, 216 N. Y. 226, distinguished.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 21, 1919, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, a jury having been waived.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Education Law — effect of dissolving school district and consolidating it with another — benefits and obligations of contracts made by dissolved district assumed by consolidated district — refusal of consolidated district to carry out contract of dissolved district employing a teacher — appeal by teacher — exclusive jurisdiction by commissioner of education — effect of his decision.</p> <p>1. Under the Education Law, if a school district be dissolved it continues to exist in law for the purpose of providing for and paying all of its debts, but if such district be consolidated with another the new district succeeds to all the assets of the dissolved district, of every kind and description, including contracts made by the dissolved district and acquires whatever benefits and assumes whatever obligations are imposed by such contracts. (Education Law [Cons. Laws, eh. 16], §§ 127, 129, 135.)</p> <p>2. Where the sole trustee of a school district entered into a contract employing plaintiff as a teacher for a definite period at a designated salary, and on the same day the district superintendent of schools dissolved such district and consolidated it with another, the benefits and obligations of the contract were assumed by the consolidated district; and where such district refused to recognize the contract and plaintiff appealed to the state commissioner of education, he had, by express provision of the statute, jurisdiction of the parties and of the subject-matter of the appeal, cand his decision that the contract was valid and binding upon the consolidated district is final and conclusive and not subject to question or review in any place or court whatever. (Education Law, § 890.)</p> <p>3. When, upon such appeal, the commissioner of education so decided but held that the papers on appeal did not present sufficient proof to justify the assessment of damages under the statute (Education Law, § 891), and "remitted the plaintiff to an action at law and, after the expiration of the time, for the fulfillment of the contract, the plaintiff brought this action and obtained judgment for the wages fixed by the contract, it was error for the Appellate Division to reverse the judgment. (Bulloch v. Cooley, 225 N. Y. 566, and People ex rel. Hylan v. Finegan, 227 N. Y. 219, followed.)</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1919, 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>Constitutional law — tax —■ constitutionality of article 9a of Tax Law providing for tax on foreign corporations for privilege of doing business within this state — computation of tax.</p> <p>The relator, a corporation organized in New Jersey, manufactures and sells its products here and elsewhere. A tax was assessed against it in 1918 by the tax commission of this state for the privilege of doing business. Article 9a of the Tax Law (Cons. Laws, ch. 60), as adopted in 1917 and amended in 1918, establishes a new scheme of taxation for manufacturing and mercantile corporations (L. 1917, ch. 726; L. 1918", eh. 276; L. 1918, eh. 417.) Every foreign manufacturing or mercantile corporation is to pay an annual tax for the privilege of doing business in this state. (Tax Law, § 209.) If the entire business is not transacted within the state, the tax is to be based upon a proportion of net income to be ascertained by the commission in accordance with prescribed rules. (§ 214.) The net income allocated to this state is to bear the same ratio to the entire net income as the aggregate of certain classes of assets within this state bears to the aggregate of certain classes of assets wherever situated. No assets not included in the enumerated classes are to enter into the ratio. The scheme of allocation takes no heed of investments in bonds and like intangible assets. (§§ 208, 214.) Nor of investments in shares of other corporations, except within prescribed limits of ten per cent. The relator, engaged in both interstate and local commerce, attacks this scheme of allocation as beyond the power of the state. Included in the relator’s investments and held at the home office, are bonds which yielded interest during the year covered by the assessment. The interest enters into the income on which the tax has been computed; the principal has been excluded in the allocation of the assets. Included in the relator’s investments are shares of stock of foreign corporations. Dividends from shares of stock are included in the income; the shares themselves do not enter into the terms of the proportion.</p> <p>Held, first, that article 9a of the Tax Law (Cons. Laws, ch. 60, amd. L. 1917, ch. 726; L. 1918, chs. 276, 417), imposing a tax upon foreign corporations for the privilege of doing business in this state, is unconstitutional in so far as it directs that, in the computation of the tax on foreign corporations therein provided for, interest arising from investments in bonds shall be included in the income on which the tax is computed but the principal thereof disregarded in the allocation of assets.</p> <p>Second, that the amendment to subdivisions 3 and 6 of section 214 of article 9a of the Tax Law (L. 1918, ch. 417) regulating the imposition of the tax upon foreign corporations for the privilege of doing business in this state is unconstitutional in so far as it directs that in the computation of the tax on foreign corporations therein provided for, dividends arising from investments in stocks of other corporations shall be included in the income on which the tax is computed but the principal thereof disregarded in the allocation of assets.</p> <p>Third, that the relator should be permitted to subtract from the income the item of interest on the bonds; that it should be permitted to add the value of its shares in other corporations to the value of its assets without the state; and that the order of the Appellate Division, in so far as it sets aside the whole tax, should be reversed.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 26,1920, unanimously affirming a judgment in favor of defendant entered upon an order of the court at Special Term sustaining a demurrer to the complaint.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 22, 1918, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>In May, 1913, the plaintiff was seated in a wagon drawn by one horse which she was driving westerly along Niagara Falls boulevard toward the city of Niagara Falls. When she arrived at the easterly line of the city she turned southerly over a so-called street referred to as Evershed street, and proceeded southerly thereon. When midway between the boulevard and a railroad crossing her horse stepped into a hole in the westerly half of said so-called street, and it resulted in the plaintiff being thrown from the wagon. She thereby received injuries to recover damages for which this action was brought. The plaintiff obtained a judgment at the Trial Term entered upon the verdict of a jury which judgment has been affirmed by the Appellate Division of the fourth department. Kruse, Presiding Justice, dissented “ upon the ground that the locus in quo is not a public highway so as to charge the defendant with the duty of maintenance thereof.” (,Johnson v. City of Niagara Falls, 184 App. Div. 923.) On the appeal to this court the appellant asserts and correctly, that the only question presented is whether the place where the plaintiff was traveling at the time of the accident had been accepted as a highway by the city of Niagara Falls. Other facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1920, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus and denied said motion.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 14, 1920, which reversed, on certiorari, an order of the public service commission (second district) requiring the relator to extend credit to the Postal Telegraph-Cable Company for messages transferred to it by the latter, and directed a dismissal of the proceeding.</p>

<p>Tax — satisfaction of old mortgage and execution of new one for larger amount and for longer term — recording tax measured by total debt secured.</p> <p>Where a mortgage contains a covenant that “ upon the request of the mortgagor ” the mortgagee may “ at its option ” satisfy the mortgage, and make a larger loan, to be secured by a new mortgage, in lieu of the one discharged, and thereafter the bond is canceled, the mortgage satisfied of record, and a new mortgage, securing a new loan for an increased amount, and running for a longer term is delivered to the lender, the new mortgage is not a “ supplemental ” one within the meaning of section 255 of the Tax Law (Cons. Laws, ch. 60) and the recording tax is to be measured by the total debt secured. (People ex rel. Home Mortgage Investment Co. v. State Board of Tax Commissioners, 182 App. Div. 699, distinguished.)</p>

<p>Master and servant — negligence — collision between truck loaded with coal and wagon in which plaintiff was riding caused by negligence of truck driver — when evidence insufficient to show that relation of master and servant existed between owners of coal yard and truck driver — erroneous charge — issue not raised by pleadings cannot be considered on appeal.</p> <p>1. Where a firm of coal dealers did not own or maintain trucks, horses or wagons for delivering coal to their customers, but gave such deliveries to truckmen and had no relation to or authority over such truckmen, merely gave them written slips indicating the place of delivery, and paid them by the ton when coal was delivered, the truck-man was not a servant or employee of the coal dealers, but was a carrier for hire. The relation of master and servant did not exist, either as matter of law or fact, between the dealers and the truckman, hence the dealers are not liable for injuries to plaintiff caused by a collision between one of such trucks loaded with defendants’ coal and the wagon in which plaintiff was riding and it was reversible error for the trial court to charge as matter of law that the truckman was the employee of the coal dealers, and if he was guilty of negligence and the plaintiff free from contributory negligence, the coal dealers as well as the truckman would be responsible.</p> <p>2. The jury reported a verdict against the dealers, thus exonerating the plaintiff and the truckman from negligence and holding the dealers guilty of negligence. The effect of such verdict under the law of the case as charged by the trial justice would be to relieve not only the truckman but also the dealers from liability. (Pangburn v. Buick Motor Co., 211 N. Y. 228, followed.)</p> <p>3. The judgment against the coal dealers cannot be sustained upon the ground that the driveway from the coal yard to the street was so steep and in such a condition that when horses, with a loaded truck, once started down the grade they would collide with any vehicle which was then in the street and that this was negligence for which the coal dealers are accountable and in fact was the maintenance of a nuisance. Held, that such contention is untenable because the complaint contains no allegation tendering any issue except the one that the injury of plaintiff was due to the negligence of the truck-man for which the coal dealers were responsible.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court, in the second judicial department, entered January 28, 1920, which unanimously affirmed an order of Special Term sustaining a writ of habeas corpus. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1920, affirming a judgment in favor of defendant entered upon an order of Special Term granting defendant’s motion for judgment upon the pleadings and directing a dismissal of the complaint.</p>

<p>1. Where an action by an employee against an employer alleging negligence in failing to provide a safe place for plaintiff to work is defended by an insurance company under the terms of its policy of liability insurance, and a judgment obtained by the plaintiff in such action is paid by the insurance company, the latter is subrogated to the rights of the insured. The insured retains no interest in the cause of action and should not be joined as a plaintiff in an action' to recover over against a third party. The action should be brought in the name of the insurance company alone, and, hence, a motion to dismiss the complaint, as to the insured, should be granted.</p> <p>2. Where it appears from the judgment roll in the employee’s action which was read in evidence in this action brought by insurer and insured to recover over against the manufacturer of apparatus alleged to be defective, that the faulty installation, if any, of such apparatus was not litigated and no proof of faulty installation was offered, but only proof of the negligence of the employer in failing properly to inspect an appliance which was subjected to heavy and constant use, it must be held that the primary wrong, if any, of the manufacturer was not litigated in that action, and it was neither bound nor exonerated by the judgment therein, and hence the right of the insurance company to recover against the manufacturer in this action was not affected thereby, although the employer gave notice to the manufacturer to come in and defend the employee’s action. When the defendant in the original suit defends its own negligence only, the plaintiff may maintain its action based on the negligence of the defendant herein.</p> <p>3. Upon the trial of this action against the builder of the apparatus, the court excluded, as improper upon rebuttal, the testimony of an expert to the effect that even if a track, upon which a coal carrier was suspended and ran, was bolted to the hanger in the way claimed by the plaintiff as proper, yet such method of construction was unsafe and improper by reason of lack of lock nuts or cotter pins. This ruling was too close á restriction of plaintiff’s right and the exclusion of this proof was substantial error. Plaintiff was not bound to anticipate upon its direct evidence that the defendant would attempt to show that in one of several particulars alleged by plaintiff to be improper, the construction was safely made.</p>

<p>1. Under the full faith and credit clause of the Federal Constitution (Art. 4, § 1) a foreign decree of divorce establishes the status of the parties as to the future. So far, and so far only, as the issues involved in such an action brought and tried in another state, and in an action brought by the wife here to recover sums expended out of her separate estate for necessaries of life are practically the same, it is a bar to an assertion by the wife that her living apart from her husband in this state prior to the decree was through no fault of hers and was not due to any acts or conduct on her part that justified a separation at the suit of her husband in this state.</p> <p>2. If a husband for the misconduct of his wife lawfully separates himself from her, he is not chargeable for necessaries furnished to her.</p> <p>3. The strictness of the ancient rule which limits cruelty as a ground for legal separation to violence or threats of violence has been relaxed. The terms “ extreme cruelty ” and “ cruel and inhuman conduct ” are equivalent and are broad enough to include such behavior of one party as may be reasonably said so to affect the other physically or mentally as seriously to impair health. Cruelty is not limited to bodily hazard and hardship.</p> <p>4. Where in an action brought by wife against husband to recover from the latter the sums which the former claims to have expended out of her separate estate in discharge of his obligation to provide her with the necessaries of life suitable to her condition, the husband set up as a defense a foreign decree of divorce in his favor, on the ground of extreme cruelty, in which action the wife had appeared and defended by denying the allegations of cruelty and setting up abandonment and non-support as a defense, and the husband, in the divorce suit, alleged and the court found that accusations by the wife of unehastity and the use by her of insulting and angry words had seriously affected the husband’s health and threatened permanently to impair it, it may not be said as matter of law that the facts pleaded and proved in the foreign action would not justify a decree of separation in this state even though no physical violence or threats thereof was shown. The parties had an opportunity therein to litigate and did litigate the very question in issue in this action, viz.: Was the husband justified in leaving his wife? The plaintiff is, therefore, bound by the foreign decree.</p>

<p>Railroads — Federal Control Act — state authority and regulations as to intrastate commerce merely suspended thereby — when suspension ceased, on return of roads, charter limitations of fare revived with all of original force — direction of public service commission to railroad to restore limited rate of fare a change “ by state authority ” within meaning of act of congress directing restoration of railroads to their owners and that tariffs should continue until “ changed by state authority.” • - ... ^ ,</p> <p>1- Under the Federal Control Act, by authority of which the president entered into “ possession, use, control and operation " of railroads within this state, any regulations the state might have made as to the operation of the roads; any powers it possessed over ilitra^ state trafile; any contract obligations vested in it, Were merely suspended while the general government was in possession. ’ ’ • _</p> <p>2. Congress was well within, its rights when it provided thsh the? tariffs in force on February 29, 1920, should continue until thereafter changed by state or federal authority, respectively, or pursuant to authority of law, and in no case Should be reduced before September 1, 1920, without the approval of the interstate Commerce commission.</p> <p>3. By its charter and by section 57 of the Saifroad Law (Cons. Laws, ch. 49), the rate for way passengers on the defendant's railroad, between Albany and Buffalo is limited to two cents a mild. That limitation has not been destroyed by the federal control. It temporarily suspended but when the suspension ceased, it revived with all of its original force. The suspension ceased when the rate fixed by the president was “ changed by state authority.” That authority over intrastate rates is the public service commission and when that commission, after a hearing, directed the defendant to restore the two-cent rate on and after September 1, 1920, the war powers of the United States ceased.</p> <p>4. No opinion is intimated in regard to any questions that may arise by reason of an order made by the interstate commerce commission, while the appeal herein was pending, directing the defendant; and other railroads to desist from practicing undue discrimination against interstate and foreign commerce,, found to exist, and to exact, fares for intrastate traffic equal to fares established by the commission for interstate traffic; but the proceeding is remitted to the Special Term, with the right to any of the parties to apply thereto for the purpose of opening the proceeding and, if such application be granted, then to offer in evidence the proceedings before the interstate commerce commission, the order made therein, the findings and evidence upon which the same were based, and any other evidence bearing upon the order of' the interstate commerce commission which the parties or any of them may see fit to offer, subject to any objection that may be made.</p>

<p>Stock corporations — railroads — acquisition and ownership of stock of one railroad company by another — bonds of first company —■ when company owning stock of such company not liable for payment of such bonds upon default of first company thereon—foreclosure of mortgage securing such bonds — when holding company may lawfully buy at foreclosure sale property of first company covered by such mortgage.</p> <p>1. The mere purpose of the stockholders of one railroad, or of the railroad company itself, to "acquire another does not make the company which does acquire the other hable to its creditors and stockholders. While it is true that no scheme of reorganization which contemplates the transfer to the original stockholders of stock in the new corporation unburdened by the old debts can be upheld, this principle does not apply where title to the property of the original company was acquired by purchase on a foreclosure sale, with no agreement or understanding that those interested in the original company were to be benefited directly or indirectly by the reorganization.</p> <p>2. A company organized to build a railroad from the terminus of another to the Pacific coast owned a right of way on which it had built' a few miles of track and then became insolvent. Most of the stock of the projected railroad was owned by the defendant railroad company and another. These companies, and the company owning the-projected railroad made a contract by which the new railroad was to be constructed from the proceeds of bonds of the projected railroad and none of these proceeds were diverted to either of the other companies, but were received by the projected railroad company. Held, that under such circumstances the holders of these bonds were not' creditors of the other railroad companies; that no contractual relation existed between them; that these companies were separate and inde-. pendent corporations and the fact that they owned a majority of the stock of the projected road is immaterial unless they fraudulently misused their power.</p> <p>3. On examination of the allegations of the complaint as to .transactions between the projected road and defendant, resulting in a foreclosure and sale of the former, which transactions plaintiff claims give a right of action against defendant, the property being claimed to be worth much more than it brought on the sale, held, that that fact is, in the absence of allegations of fraud and conspiracy, immaterial in a collateral action like the present brought by a holder of the income bonds against the defendant. (Northern P. By. Co. v. Boyd, 228 TJ. S. 482; Kansas City So. By. Co. v. Guardian Trust Co., 240 TJ. S. 166, and Louisville Trust Co. v. L., N. A. & C. By. Co., 174 TJ. S. 674, distinguished.)</p>

<p>Appeal from a judgment entered January 29, 1919, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 3, 1920, which modified and affirmed as modified a decree of the Chemung County Surrogate’s Court directing an accounting of the proceedings of Henry L. Armstrong as trustee under the will of Mary E. Armstrong, deceased.. The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 30, 1919, 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>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 17, 1919, affirming a judgment in favor of defendant 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>Appeal from a judgment, entered June 30, 1919, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>The trustees of defendant entered into a contract with plaintiff, a certified public accountant, to perform certain services with reference to an audit of its receipts from assessment and taxation at a stipulated price. When the work was near completion, a taxpayer’s action was brought restraining payment to plaintiff on the ground of waste of public funds. Judgment in that action went against plaintiff on the grounds that there had been no money appropriated for the purpose, as required by the Village Law, and that under the charter of the village the trustees had no power to make such a contract. Thereafter the legislature passed an act (L. 1911, ch. 513), the purport of which was to legalize the action of the village trustees and authorize payment of plaintiff’s claim, whereupon this action was brought to enforce such claim. The defense is that judgment in the former action is res adjudicata upon the proposition that plaintiff’s work was not á village purpose, and that, therefore, the act referred to was unconstitutional under section 10 of article 8 of the State Constitution. Held, first, that the courts did not intend to determine that the work was not a village purpose or such as the legislature could not authorize; second, that the work was for a village purpose within the meaning of the Constitution. The village has received the benefit of it. Plaintiff has fully performed his contract and the legislature has now authorized and directed the village to pay him for the work done. The situation created a moral obligation which the legislature has power to meet. Third, that the legislative act is not violative of section 20, article 3 of the Constitution, as no public moneys of the state are appropriated within the meaning of that section.</p>

<p>Murder — conviction of defendant for murder committed by an accomplice while attempting to rob the deceased — when evidence insufficient to show that defendant abandoned the conspiracy to rob the deceased before the fatal shot was fired by his accomplice — refusal of court to charge that defendant might be convicted of burglary or robbery not error—• sufficiency of indictment.</p> <p>1. Defendant has been convicted of murder in the first degree under an indictment which charged that he and two others “ willfully, feloniously and of malice aforethought shot and killed ” the deceased “ with a revolver.” The evidence shows that defendant and one of his accomplices, in accordance with their conspiracy to rob the deceased, entered his store, while the other accomplice remained outside; that ihe accomplice in the store attempted to secure the money from the cash register from which deceased was making change; that deceased in the attempt to protect his property grabbed such accomplice and in the course of the struggle which ensued the deceased was shot and killed by such accomplice. Defendant testified that before the shooting of deceased, he fired a shot to scare the deceased and his accomplice and called to the latter to get out of the store, and then ran out, leaving his accomplice in the store. After running out defendant and his two accomplices went back to the room from which they had started, where defendant changed his clothes and received a dollar, unaccounted for except as part of the proceeds of the robbery, and returned to the navy from which he was a deserter. Held, that the facts constituting defendant’s alleged abandonment of the conspiracy to rob deceased would not, under the most favorable aspect of the evidence, permit a jury to say that he had effected any such retirement from the criminal plan, to which he was a party, before the shot was fired which killed the deceased.</p> <p>2. It was not error for the trial court to refuse to instruct the jury that defendant might be convicted of burglary or robbery, since the commission of the crime of burglary or. robbery was not “ necessarily included ” in the crime of murder with which defendant was charged. (Code Grim. Pro. § 445.) {People v. Hüter, 184 N. Y. 237,244, followed.)</p> <p>3. The indictment was sufficient in form when it simply accused defendant of having killed the deceased “ willfully, feloniously and with malice aforethought.” While it was necessary, under this indictment, to prove such malice and willful and felonious conduct, this necessity was satisfied in accordance with the provision of the statute (Penal Law, § 1044) by evidence showing that the homicide occurred while the defendant was engaged in the commission of another felony. {People v. Giblin, 115 N. Y. 196, 198; People v. Schermerhorn, 203 N. Y. 57, 72; People v. Conroy, 97 N. Y. 62, 68, 69; People v. Enoch, 13 Wend. 159, 174, followed.)</p>

<p>Appeal from a judgment entered January 15, 1919, upon an order of the Appellate Division of the Supreme Court in the third judicial department reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p>

<p>Building contract — failure to fully perform — damages — when omission is trivial, measure of damages is the difference in value — improper exclusion of evidence to show that pipe was of same quality though not of the brand called for by specifications.</p> <p>1. The courts never say that one who makes a contract fills the measure of Ms duty by less than full performance. An omission, however, both trivial and innocent, will sometimes be atoned for by allowance of the resulting, damage, and will not always be the breach of a condition to be followed by a forfeiture.</p> <p>2. In most cases of failure to perform the cost of replacement is the measure of damages. The owner is entitled to the money wMch will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value.</p> <p>3. In an action to recover a balance unpaid on a building contract, defended on the ground that the contractor had not fully performed, it appeared that in the plumbing a different brand of pipe had been used in some instances than that called for by the specifications; that the omission of the prescribed brand was neither fraudulent nor willful but was the result of the oversight and inattention of the plaintiff’s subcontractor. Plaintiff offered to show that the brands installed, though made by other manufacturers, were the same in quality, in appearance, in market value and in cost as the brand stated in the contract — that they were, indeed, the same thing, though manufactured in another place. The evidence was excMded. Held, error; that if admitted it would have supplied some basis for the inference that the defect was insignificant in its relation to the project. Held, further, that in the circumstances of tMs case the measure of the allowance is not the cost of ■ replacement, wMch would be great, but the difference in value, wMch would be either nominal or notMng.</p>

Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 6, 1920, which reversed an order of the Court of Claims denying a motion to open a default and to set aside a dismissal of the claim thereon and granted said motion. In each action the following questions were certified: “ 1.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 27, 1920, which reversed an order of Special Term dismissing a writ of habeas corpus, sustained said writ and directed the discharge of the relator from imprisonment.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Arbitration Law — statute applicable to pre-existing contracts but not to pending actions —• contract to arbitrate entered into before enactment of Arbitration Law may be enforced before other remedy has been invoked, not after — statute violative neither of State nor of Federal Constitution.</p> <p>1. The Arbitration Law (L. 1920, eh. 275) is applicable to preexisting contracts but not to pending actions, and there is no departure therein from constitutional restrictions.</p> <p>2. A provision in a contract for the sale of goods made in November, 1919, that claims “ shall be settled amicably or by arbitration,” will be enforced, the statute having been enacted after the contract had been made, but before a remedy was invoked, since changes in the form of remedies are applicable to proceedings thereafter instituted for the redress of wrongs already done.</p> <p>3. A contention that the promise to arbitrate when made was illegal and a nullity cannot be sustained. (Jacobus v. Colgate, 217 N. Y. 235, distinguished.)</p> <p>4. A motion, however, in an action upon a contract, for a stay of proceedings until the matters in difference were arbitrated pursuant to a provision therein, is properly denied where the action was begun in 1916. To hold that the Arbitration Law of 1920 applies in such conditions is to nullify a cause of action by relation, and by relation again to establish a defense. Full effect is given to the provision of section 5 of the statute that “ if any suit or proceeding be brought ” its progress shall be stayed, when it is limited to suits or proceedings brought thereafter.</p> <p>5. The statute is not violative of section 2 of article 1 of the State Constitution securing the right of trial by jury. The right is one that may be waived and it was waived by the consent to arbitrate. The consent of the parties is binding, however deficient may once have been the remedy to enforce it.</p> <p>6. Nor may the statute be successfully assailed as abridging the general jurisdiction of the Supreme Court which section 1 of article 6 of the Constitution of the State continues unimpaired.</p> <p>7. A contention that the statute violates section 1 of article 10 of the Federal Constitution on the ground that it impairs the obligation of a contract cannot be maintained. The obligation of the contract is strengthened, not impaired.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 30, 1920, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the corporation counsel of the city of New York to institute proceedings to determine the compensation due to the petitioner for damages to his property caused by the closing of a street, and denied said motion.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>1. As a general rule a tenant is liable under Ms contract of lease until he is evicted. Neither the beginning of an action to foreclose a mortgage superior to Ms lease in which he is made a defendant, nor the entry of a judgment of foreclosure and sale constitute such an eviction. Until the sale actually takes place he remains liable to his landlord on Ms contract. If, on the contrary, he is not á party to the action Ms rights are not affected. There is never an eviction. Until the sale he must pay his landlord, Afterwards, the purchaser.</p> <p>2. Plaintiff, the holder of a mortgage on real property, commenced an action to foreclose and made the subsequent lessee thereof a party defendant, the complaint demanding that its rights under the lease be ended. To avoid the expense of a receivership the owners of the property assigned to the mortgagee the rents to accrue with full power to enforce their payment. Notice of an assignment was given to the lessee and it paid its rents to the mortgagee until there was served upon it a judgment of foreclosure and sale providing that the premises be sold and the lessee “ be forever barred and foreclosed of all right, title, interest and equity of redemption in the said premises so sold,” whereupon, acting in good faith, it sold its fixtures and quit and vacated the premises. A few days later the plaintiff in the foreclosure sale made a motion to discontinue the action against the lessee and to cancel the lis pendens and vacate the judgment against it, which motion, though opposed by the lessee, was subsequently granted. On the sale, about ten months later, the property was bid in by the mortgagee and it received a referee’s deed subject to defendant’s lease. Thereafter it conveyed the premises also subject to the lease, and now seeks in this action to recover rent from the time defendant vacated the premises to the time of said transfer. Held, that the mortgagors or their assignee were entitled to recover rent from the lessee from the date it ceased to pay rent to the date of the sale, and that thereafter the purchaser might recover.</p> <p>3. A contention that plaintiff in the foreclosure action had an election of remedies in that by making the tenant a party it might assert its superior rights in the property and by omitting it, it might sell with the tenancy outstanding, and that having made its election it was bound, cannot be sustained.</p> <p>4. Nor may the principle of estoppel be applied on the ground that defendant as mortgagee and as assignee of the rents notified the tenant that it intended to enforce its superior rights and formally asserted its intention by entering judgment. By that judgment the plaintiff announced that when the sale occurred the tenant would be evicted. Until such a sale there was no eviction.</p> <p>5. Nor can it be successfully contended that plaintiff having represented that when the sale occurred, if ever, the defendant would be evicted and the defendant in reliance on this statement having vacated the premises before it was notified of the plaintiff’s change of heart, and a sale in fact having taken place, the defendant should be relieved of the obligation to pay rent from the date of sale onwards. The intention was subject to change and was changed.</p>

<p>Workmen’s Compensation Law — officer of corporation who does ordinary work of employee and is injured entitled to compensation — findings should state in what capacity wages were paid.</p> <p>1. The. amendment to section 54 of the Workmen’s Compensation Law (Cons. Laws, eh. 67), which permits the insurance of “ employers who perform labor incidental to their occupations,” was intended to cover the ease of an employer who maintained his status as such but who nevertheless did some work of the character usually performed by an employee.</p> <p>2. A corporation is a complete entity separate and distinguishable from its stockholders and officers and if it sees fit may have one of them serve it in the capacity of an ordinary employee. In such a case he comes within the benefits of the general provisions of the Workmen's Compensation Law.</p> <p>3. Where, therefore, a corporation employs a “ general manager,” but requires him to perform ordinary detail and manual work such as would be required of a typical employee and he is injured in so doing, he is entitled to secure compensation under the general provisions of the Compensation Law and his case is not governed by or dependent upon the amendment of 1916. (Matter of Bowne v. Bowne Co., 221 N. Y. 28, distinguished.)</p> <p>4. Findings should state whether the average weekly wage was all received in his capacity as employee or whether part was apportioned to his official position.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 20, 1920, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 20, 1920, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 9, 1920, reversing an award of the state industrial commission made under the Workmen’s Compensation Law and directing a dismissal of the complaint.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Workmen’s Compensation Law — relief can be given only when injuries arise both out of and in the course of employment — employee killed while driving employer’s automobile from his own home to place of employment before time for commencing work — erroneous award.</p> <p>1. The words in the Workmen’s Compensation Law “ arising out of and in the course of the employment ” have a clear and definite meaning, and relief under the statute can only be given when the injuries arise both out of and in the course of the employment. (Matter of Heitz v. Buppert, 218 3ST. Y. 148; Matter of Daly v. Bates & Roberts, 224 N. Y. 126, followed.)</p> <p>2. A foreman who, in going to take charge of an outside job, used an automobile belonging to his employer and after finishing his day’s work drove it to his own home, it being left entirely to him whether to take it there or back to his employer’s garage, and who, in the morning, while driving the car on a public highway to his employer’s place of business before the time when he was to go to work, collided with another car and received injuries from which he died, cannot be properly held to have sustained injuries arising out of and in the course of his employment and an award for his death is erroneous. (Matter of Kowalek v. N. Y. Cons. R. R. Co., 229 N. Y. 489; Pierson v. Interborough R. T. Co., 184 App. Div. 678; 227 N. Y. 666, followed.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 16, 1920, which unanimously affirmed an order of Special Term reducing an assessment for taxation upon real property of the relator. 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 second judicial department, entered March 5, 1919, unanimously affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an unanimous judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 7, 1919, in favor of defendant upon the submission of a controversy under section 1279 of the Code of Civil Procedure.

<p>Tax — petition for review of assessments — when overvaluation and inequality of assessment sufficiently charged.</p> <p>1. A petition for the review of assessments upon real property which states that the overvaluation of two parcels is $62,800, and also states, in effect, that the assessments have been made at the rate of 133 per cent of full market value sufficiently alleges overvaluation within the meaning of section 290 of the Tax Law (Cons. Laws, ch. 60) and is adequate, liberally construed, to require that opportunity be granted for a hearing and a trial.</p> <p>2. A further allegation that the average assessment of other property is at the rate of 80 per cent of the full market value; that the property in question is assessed at the rate of 133 per cent; that such inequality exists not only in specific instances, but generally throughout the city; “ and your petitioners specify as the instances in which such inequality exists all other real estate in said city * * * assessed upon the said assessment roll ” is a substantial compliance with the statutory mandate that the petition is to specify “ the instances in which such inequality exists and the extent thereof.” (Tax Law, § 290.)</p>

<p>Specific performance — equity — when contract, under seal for the sale of real estate, modified by an oral contract, has been fully carried out by vendor, he is entitled to judgment for specific performance by vendee — rule that contract under seal cannot be modified by oral contract, considered and questioned.</p> <p>1. The court does not arbitrarily refuse specific performance of an agreement for the sale of real estate when equity seems to demand that the parties be compelled to carry out such agreement, even though one party may not be instantly ready with complete performance on his part. Especially is this the rule, almost of right, where time is not the essence of the contract and where one of the parties has partly performed or changed his position in reliance on the contract, and common justice forbids that the other party should, on some technicality which may be obviated without prejudice to any substantial interest, refuse to comply with its provisions.</p> <p>2. In this action, brought by the vendor to enforce specific performance of defendant’s agreement, the trial court found that a contract under seal for the purchase of real estate had been modified by an oral contract between the parties, and as thus modified had been acted upon and fully performed by the vendor, the Statute of Frauds was not pleaded, nor any allegation made that the modified agreement was not under seal. Under these circumstances it would be inequitable to refuse specific performance of the contract.</p> <p>3. When a modified contract is wholly executed on both sides the plea that the modification is not under seal will not avail the parties. The rule that a contract or covenant under seal cannot be modified by a parol unexecuted contract considered and questioned.</p>

<p>Appeal,' by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 4, 1919, which unanimously affirmed a judgment of the Court of Claims dismissing the plaintiff’s claim.</p> <p>The facts, so far as material, are stated in the opinion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 10, 1919, 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>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 14, 1919, which modified and affirmed as modified a decree of the Onondaga County Surrogate’s Court settling the accounts of surviving executors and trustees under the will of James J. Belden, deceased, and remitted the matter to said surrogate. The following questions were certified: “1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 17, 1920, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus. ‘ The facts, so far as material, are stated in the opinion.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 5, 1919, 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>Public officers — when public officer who has received public moneys without right may be charged with restitution though he received them without fraud — Rockland county — audit by board of supervisors of bills for services rendered by a supervisor — such audits examined and some found erroneous and without jurisdiction —■ others allowed.</p> <p>1. A public officer receiving public moneys without right may be charged with the duty of restitution at the instance of a taxpayer though he received them without fraud.</p> <p>2. There is nothing in the statute permitting the supervisor of a town to receive payment for attending meetings of the board of county canvassers and inspectors, for reporting, correcting and recapitulating the assessment and tax rolls, and for preparing the annual town statement, a separate statement to the board of supervisors, and a list of incorporated companies; and an audit and allowance of such charges by the board of supervisors of Rockland county exceeded the jurisdiction of the auditors, and the payments made thereunder must be returned.</p> <p>3. A supervisor of Rockland county is not entitled to per diem compensation for services rendered in connection with county highways when he has received from his town the compensation fixed by the town board under and in conformity with the statute (Highway Law [Cons. Laws, ch. 25], § 110), which provides that the supervisors “ shall receive annually, as compensation for services under this chapter in lieu of all other compensation, an amount to be fixed by the town board.”</p> <p>4. Under the statute (County Law [Cons. Laws, ch. 11], § 23, amd., L. 1911, ch. 554) a supervisor may receive compensation from the county at the rate of four dollars per day for any duty lawfully committed to him by the board, except for services rendered when the board is in session. This provision cannot be construed to mean that payment is to be made upon a graduated basis, four dollars for a full day’s work, and a proportionate sum for less. It means that a supervisor acting in good faith shall be paid for every day upon which service is rendered in the performance of delegated duties, and while the statute means that some substantial services must be rendered, yet the determination of their value and amount is within the jurisdiction of the board of supervisors which knew or had the means of knowing the facts, except where the bills presented by the supervisor himself disproves his claim as being too trivial or having no relation to official business. The omission of the clerk to enter on the minutes a resolution committing matters to a member of the board does not prevent allowance to him for services rendered. (Wallace v. Jones, 122 App. Div. 497, 501, distinguished.)</p> <p>5. Where the County Law (Cons. Laws, eh. 11) at the beginning of a supervisor’s term gave him a per diem fee and mileage for attending sessions of the board, but was changed by amendment during his term (L. 1910, eh. 279), which substituted an annual salary for the per diem compensation previously established, the supervisor is not entitled to compensation upon the per diem basis. Such amendment was not unconstitutional, if applied to supervisors then in office, as violative of the provision of the State Constitution (Art. 3, § 18, subd. 10) prohibiting the passage of any local bill decreasing the fees or allowance of a public officer during the continuance of his term, since by section 23 of the same article of the Constitution, sections 17 and 18 do not apply to any bill or amendments to any bill reported to the legislature by commissioners of revision, and the statute changing the compensation was an amendment to the County Law, which forms a chapter of the Consolidated Laws adopted by the commissioners of statutory revision.</p> <p>6. Where an amendment to section 23 of the County Law (L. 1910, ch. 279) made provision for extra compensation to supervisors for committee work at the rate of four dollars per day, except in certain enumerated counties, of which Rockland county was one, and it was not until the statute of June, 1911 (L. 1911, eh. 554), that Rockland county was omitted from the excepted class, the board of supervisors of that county had no jurisdiction to allow to a supervisor charges for committee work done between May 13,1910, and June 30, 1911.</p> <p>7. Where a supervisor of Rockland county rendered bills for extra services after June 30, 1911, which are said to include services on days when the board of supervisors was in session, though for such services on those days he was limited to his annual salary, such bills cannot be allowed upon the ground that the statute does not exclude payment for services rendered on a day when there was a session, if rendered at some other hour or hours. The substitution, by the amendment of 1910, of a salary for the per diem fee, as compensation for attendance at the sessions, does not justify an audit and allowance for double compensation. If, however, the board, intending to exclude payment for the days when the board was in session, made an honest mistake in dates, its award though erroneous is not void, and hence is not subject to collateral attack. But if it proceeded upon an erroneous construction of the statute, and with knowledge of the facts gave compensation which should have been withheld, it went beyond its jurisdiction. There is evidence in this ease which permits the latter inference.</p> <p>8. Where an allowance by a board of supervisors for extending liens upon the tax rolls and for incidental computation appears to be void for want of jurisdiction rather than merely an erroneous audit, the allowance must be set aside.</p> <p>9. Where some of the bills presented by a supervisor for audit and allowance are criticised as inadequately itemized, others as imperfectly verified or based upon an error in dates, such defects are insufficient of themselves to make out a case for restitution of the payments made under the allowance of such bills.</p>

<p>Banks and banking — sale of credit by drafts drawn upon, or by cable or wireless messages sent to, correspondents in foreign countries — such a transaction is one of purchase and sale and no trust relationship is established.</p> <p>1. Where a bank having a credit with a correspondent in a foreign country sells its draft or chock, drawn upon such correspondent, to a purchaser who desires to make a foreign payment, the draft is not the credit but represents the credit, or in other words, it is a notification to the correspondent to pay the money as directed. The draft is a direction to pay. It is not, itself, money or credit but is used as such. The money paid the bank by the purchaser of the draft becomes the bank’s money. The transaction is that of purchase and sale and no trust relationship is established.</p> <p>2. Where a purchaser does not receive a cheek or draft, which is to be transmitted by mail, but pays for a credit which will be given him in the foreign country by an immediate cable or wireless message from the bank or seller to his correspondent at the foreign point, the thing sold is the same as in the case of the draft or check; it is the credit of the bank or seller, and such transactions are matters of purchase and sale and create no trust relationships.</p> <p>3. Plaintiff desired to transfer at once money to a party in Naples, Italy, and he made an arrangement with a firm in New York to do so, saying, “ I give you the order to cable this money for me to Italy, on condition that you send the cable immediately.” He delivered to them the amount in a certified check, which the firm deposited the next day to its credit in a bank. The cable credit was never transmitted by the firm and shortly afterwards it went into bankruptcy. At the time the deposit was made with the bank the firm owed it a large sum for moneys advanced secured by discounts and notes, and it also had a cash balance at the bank, which was increased by the proceeds of the plaintiff’s cheek. Plaintiff claimed that the money, which went into the bank instead of being sent to Naples, still belonged to him and that the bank held it in trust for him. The bank claimed that it had the right to offset it under the Bankruptcy Law as against the firm’s indebtedness to the bank. The bill presented to the plaintiff by the firm, whereby he had parted with his money, stated that he bought of it a certain number of lire to be transferred by cable to Italy. Held, that the transaction on the part of the plaintiff was a purchase of credit, not the transfer of specific money, and that no trust attached to the proceeds of the check in the hands of the bank.</p>

<p>Plaintiff, a merchant, had a’deposit in defendant’s bank. His wife, claiming the ownership of one-half of the account, joined the bank as a defendant in a suit to establish title and served a summons and unverified complaint. Pour checks previously drawn by plaintiff, and aggregating about one-half of the account, were outstanding. When presented for payment they were dishonored by the bank without warning to plaintiff and returned to the holders with a notice that the account was closed. Plaintiff protested against this slur upon his credit and insisted that the checks be paid. Defendant’s cashier promised that they would be paid if presented again. Some of the cheeks were presented a second time and a second time dishonored. Upon the subsequent withdrawal of her claim by his wife, plaintiff sued the bank for injury to his credit. Held, that the plaintiff may recover; that he is not limited to nominal damages but should have damages to be determined by a jury. There was nothing of accident or mistake in defendant’s dishonor of the checks. It dishonored them deliberately and willfully with full knowledge of the account, setting one risk against another, the risk of adverse claims against the risk of broken contracts. Held, further, that defendant cannot minimize plaintiff’s- damages by the excuse that the notice that the account was closed would not have been given if a clerk had returned the checks marked “ account held ” as directed by defendant’s cashier. It was defendant’s duty to see that such instructions were obeyed. .</p>

Appeal, in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1920, which affirmed an order of Special Term denying a motion for a premptory writ of mandamus to compel the defendant to issue a precept for the eviction from the relator’s premises of a holdover tenant. The facts, so far as material, are stated in the opinion.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1920, which affirmed in part and reversed in part an order of Special Term granting a motion for a peremptory writ of mandamus to compel the comptroller of the city of New York to pay to the relator additional interest on an award made for the change in the grade of a street.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 2, 1919, modifying and affirming as modified a judgment in favor of defendant Richmond Hose Company, 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>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 22, 1920, which modified and affirmed as modified a judgment entered upon the report of a referee stating and settling the accounts of the executrices of Sophia R. C. Furniss, who was surviving trustee under the will of William P. Furniss of a trust created for the benefit of Margaret E. Zimmerman.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 21, 1921, which reversed an order of Special Term granting a motion to continue an injunction pendente lite and vacated and set aside the same. The facts, so far as material, and the question certified 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 16, 1920, which reversed a decree of the New York County Surrogate’s Court holding invalid a codicil to the will of Percival J. Werlich, deceased, and remitted the matter to said Surrogate’s Court for entry of a decree in accordance with the opinion of said Appellate Division.

<p>Workmen’s Compensation Law.—■ hernia an accidental injury —• award for failure to find work — when refusal to accept work bar to award.</p> <p>1. A hernia resulting from strain in lifting a heavy box is an accidental injury within the meaning of subdivision 7 of section 3 of the Workmen’s Compensation Law (Cons. Laws, eh. 67). (Matter of Veneroni v. Bausch & Bomb Optical Co., 229 N. Y. 628, followed; Matter of Alpert v. Powers, 223 N. Y. 97, distinguished.)</p> <p>2. Compensation, if due at all, is to be measured by a prescribed percentage of “ the difference between his average weekly wages and his wage earning capacity thereafter in the same employment or otherwise.” (Workmen’s Com. Law, § 15, subds. 3, 4.) Failure to find work because the labor is unmarketable owing to the condition of the laborer will justify the inference of diminished earning power and an award based thereon, but where it appears from the record that claimant was offered work that he could do, paying the same wages that he received before the accident, but that he refused it, in the absence of a denial or explanation, there is no basis for an award for disability during the period that such work, might have been obtained.</p>

Plaintiff received personal injuries through being struck by an automobile. The driver of the automobile held a policy of liability insurance issued by the defendant. Shortly after the accident a representative of the attorneys for the defendant called upon plaintiff and agreed to “ settle with you any time you are ready.” No terms of settlement were named and no amount to be paid was agreed upon.

Relator contended that the commission had erred in its interpretation of the meaning of. section 214 of the Tax Law. In the report filed by the relator the total bills and accounts receivable everywhere were stated at $562,087.60 and the total accounts and bills receivable within the state at $446,371.91.

Upon the facts the trial court found that the insured had disappeared more than seven years before the institution of suit; that a diligent search, to locate him had been made; that the plaintiff had not heard from him, and that his death was presumed to have occurred before the commencement of the action, and directed judgment for plaintiff.

Richmond. Defendant operated its trolley cars in this street upon two tracks. At about seven o’clock in the evening of December 30, 1918, the plaintiff in company with three others attempted to go across the street from the hotel in which he resided, and as he reached the first rail of the defendant’s first track, and before he had gone upon it, he was hit by the side of the car and sustained the injury for which he has recovered.

Decedent, while insolvent, assigned to his sister, this appellant, four life insurance policies which he held payable to his estate. This assignment was without consideration. It is conceded in the case that he had at the time of the assignment borrowed from the several companies in which such policies were held an amount equal to the full surrender value of the policies.

The Court of Appeals has jurisdiction to review the propriety of an unanimous reversal by the Appellate Division of a judgment entéred upon an order of the court at a Trial Term setting aside a… Held: that there is nothing therein to justify the conclusion that there was an assumption by the defendant of personal liability in excess of payments already made.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1920, which modified and affirmed as modified a decree of the Chemung County Surrogate’s Court settling the accounts of the trustees under the will of Robert M. McDowell, deceased, and surcharging them with $62,970, the amount invested by them in certain securities, which have since defaulted and were not at the time of purchase seasoned and proper…

The action was brought to enjoin and restrain defendants from draining a spring on plaintiff’s lands close to the boundary line between their properties, defendants having dug a reservoir on their land close to plaintiff’s spring and deeper than the spring thereby diverting into that reservoir the subterranean water supply that fed the spring, wholly appropriating that supply and thereby destroying the spring; and to enjoin and restrain defendants from discharging upon…

The action was to recover rent alleged to be due under a lease.

The property in question, a farm entirely within the limits of the city of New Rochelle, was assessed in two parcels, the total assessment amounting to the sum of $463,860. After application to the local authorities for a reduction the writ herein was prayed for on the ground of overvaluation and inequality of assessment.

Appeal, by permission, from a judgment of the Appellate Division, of the Supreme Court in the second judicial department, entered December 3, 1918, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1920, which affirmed an order of Special Term denying a motion by plaintiff for judgment upon the pleadings in an action for rent.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1920, which affirmed an order of Special Term denying a motion by plaintiff for judgment on the pleadings. The action was for rent. The answer set up as a defense that the rent was unjust and unreasonable and the lease oppressive. The following questions were certified: 1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1920, which reversed an order of Special Term denying a motion by plaintiff for judgment on the pleadings and granted said motion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1920, which reversed an order of Special Term denying a motion by plaintiff for judgment on the pleadings and granted said motion. The action was in ejectment, the complaint alleging that defendant was in possession of and refused to vacate an apartment in a building belonging to plaintiff, the lease of • which had expired.

The relator acquired premises subject to a lease to one Reines which expired on April 30, 1920. The relator instituted a summary proceeding in the Municipal Court against Reines as a holdover. The proceeding was heard on May 7, 1920, and a final order was made for possession but staying the warrant to August 1, 1920. That order was amended on August second by stipulation extending the stay until October 1, 1920, on condition of no further stay.

The petition showed that in a proceeding in the Municipal Court a final order had been made awarding possession of the premises to the landlord on the ground that the tenant’s term had expired. Defendant contended that the dispossess proceeding was pending on the day chapter 942 of the Laws of 1920 was passed and that that statute forbade issuance of a warrant under the circumstances of this case.

The petition showed that, in a proceeding in the Municipal Court, a final order had been made awarding possession of the premises to the landlord on the ground that the tenant’s term had expired. Defendant contended that the dispossess proceeding was pending on the day chapter 942 of the Laws of 1920 was passed and that that statute forbade the issuance of a warrant under the circumstances of this case.

<p>Motion for re-argument. (See 230 N. Y. 239.)</p>