Volume 231 — New York Reports

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 9, 1919, which dismissed a writ of certiorari to review an order of the public service commission directing relator to repair the roadway and the approaches to a bridge over its railroad yards in the town of West Seneca.

On undisputed testimony the driver “ Mesick ” was at the time of the accident in the employ of and under the sole control of the defendant hospital and the denial of the motion of defendant Allen and Arnink Auto Renting Company for a nonsuit as to it wa's error. (Hartwell v. Simonson & Son Co., 218 N. Y. 345; Schmedes v. Deffaa, 153 App. Div. 822; 214 N. Y. 675; Muldoon v. City Fireproofing Co., 134 App.

The practice by the commission in this case, of incorporating the opinion of Commissioner Henry D. Sayer and the opinion of the state industrial commission as part of the findings in this case, was erroneous, irregular and contrary to the meaning and the provisions of the Workmen’s Compensation Law of the state of New York.

Defendant’s covenant against incumbrances has been violated. (Matter of City of New York [39th Street Ferry], 76 Misc. Rep. 358; 150 App. Div. 908; 206 N. Y. 655.) A corporartion may not voluntarily dissolve until ■ it has paid or adequately provided for the payment of its debts and obligations.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 16, 1920, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>Even in the absence of formal classification by the civil service commission, the position of assistant ch'ief examiner was created and duly existed pursuant to section 123 of the charter and was deemed to be in the competitive class. (L. 1899, ch. 370, § 13; L. 1911, ch. 547; People ex rel. Boyd v. Hertle, 46 App. Div. 505; People ex rel. Langdon v. Dalton, 49 App. Div. 71; 163 N. Y. 556; People ex rel. Martin v. Scully, 56 App. Div. 302.) The mere absence of official classification by the commission of a position legally existing and classified by statute does not prevent an appointment to such position. (L. 1899, ch. 370, § 13; L. 1911, ch. 547; People ex rel. Boyd v. Hertle, 46 App. Div. 505.) For many years, by practical construction, the positions of first assistant chief examiner and assistant chief examiner have been recognized as independent positions or titles. (People ex rel. Snyder v. Hylan, 212 N. Y. 236; Matter of Becker v. Boyle, 179 App. Div. 789; 221 N. Y. 681; Wintersteen v. City of New York, 220 N. Y. 57; People ex rel. Werner v. Prendergast, 206 N. Y. 405; People ex rel. Sears v. Tobey, 153 N. Y. 381.)</p> <p>The classification controls, and, since the positions of first assistant chief examiner and assistant chief examiner were not placed in that classification until December 7, 1917, a long time after defendants’ appointments to these positions, their examinations and appointments were irregular, illegal and void. They were de facto incumbents of those positions. (People ex rel. Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Schau v. McWilliams, 185 N. Y. 92.; People ex rel. Terry v. Kellar, 158 N. Y. 187; People ex rel. Simons v. McGuire, 204 N. Y. 253; People ex rel. Fowler v. Moskowitz, 175 App. Div. 710; People ex rel. Leet v. Kellar, 157 N. Y. 98; People ex rel. Steves v. Kraft, 135 N. Y. Supp. 1136; 151 App. Div. 913.) If the examination and appointment of the incumbent of the position of first assistant chief examiner as assistant chief examiner was not regular in form and not in accordance with every requirement of the letter of the law essential to its validity, his subsequent appointment as first assistant chief examiner, accomplished as it must have been upon the presumption that he held the position of assistant chief examiner lawfully, was not regular in form, and was not in accordance with every requirement of the letter of the law essential to its validity. (People ex rel. Fowler v. Moshowitz, 175 App. Div. 710.) If the appointment of these incumbents to the positions of first assistant chief examiner and assistant chief examiner respectively were not regular in form and not in compliance with every requirement of the letter of the law essential to their validity, then they have no legal tenure, and the municipal civil service commission cannot certify their payrolls, and the comptroller cannot audit these payrolls and pay these incumbents the salaries appropriated for these positions by the board of estimate and the board of aldermen. (People ex rel. Terry v. Kellar, 158 N. Y. 187; People ex rel. Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Fowler v. Moshowitz, 175 App. Div. 710.)</p>

Durant, deceased. The direction to the trustee contained in the 9th paragraph of the will of Mr. Durant that “ upon the death ” of the testator’s daughter Estelle “ leaving lawful issue her surviving to pay over to such issue the principal of such share so devised in trust to be equally divided between them,” should be construed as directing a division among such issue per stirpes and not per capita.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1920, which affirmed an order of Special Term .overruling a demurrer to a defense in the answer. The following question was certified: “ Is the defense contained in- the defendant’s second amended answer herein insufficient in law upon the face thereof? ” The defense is insufficient in law upon the face thereof.

The jury has found that the defendant condemned the cows for tuberculosis, and inflicted the penalty for failure to report them. Whether the cows were in fact so diseased is immaterial. (Cons. Laws, ch. 1, §§ 93, 98, 101, 102.) A verdict that is clearly against the instructions should be set aside. (Cavin v. O’Rourke Eng. Co., 116 N. Y. Supp. 652; Feidman v. Levy, 56 Misc. Rep. 564; White v. Robinson, 153 App.

There was no evidence in the case which would warrant the court* or a jury to find as a fact that the contract of January was modified and amended by the sale alleged to have been made in May. (Kingsland Land Co. v. Newman, 36 N. Y. Supp. 960; Hirch v. Am. D. Tel. Co., 90 N. Y. Supp. 2104.) Defendants’ testator by Approving the sale under the contract of May twenty-second, became obligated to pay the commission specified in the contract of January seventeenth.

<p>Negligence — railroads — Federal Employers’ Liability Act — when conductor of switching crew killed on terminal tracks on returning from transferring cars to another railroad for foreign shipment is engaged in interstate commerce — preliminary movement a part of foreign commerce —- lack of knowledge of destination no defense — federal statute does not touch liability of other parties to wrong — when railroads maintaining terminal presumptively responsible for condition of switch — fellow-servants.</p> <p>1. The defendant railroads maintain and jointly operate a terminal road and switching yard. Plaintiff’s intestate, a conductor of a switching crew in the employ of defendant Lehigh Valley Railroad Company, was killed by reason of the derailment of his engine while it was moving along the terminal ■ tracks. He had been engaged in transferring three Lehigh Valley ears, in course of transit from Buffalo to Montreal, to the New York Central tracks. It was not shown that the Lehigh Valley had been notified in advance of the point of ultimate destination, but it knew that its cars were to be surrendered to another carrier, to be hauled to any point which that carrier might name. Held, that the intestate was engaged in foreign commerce when his engine was derailed.</p> <p>2. A contention that the preliminary movement, if part of a larger movement and thus part of foreign commerce as between shipper and consignee, is to be considered by itself and thus viewed as merely local in determining the relation between shipper and carrier, or between carrier and servant, cannot be upheld. It shares, in these relations also, the character and quality of the movement that succeeds it. A terminal road, which switches indiscriminately for foreign and 'domestic cars, is itself an instrumentality of interstate or foreign commerce.</p> <p>3. Lack of knowledge, on the part of a railroad which interchanges or switches cars, of their interstate character constitutes no limitation upon the rights of injured workmen under the Federal Employers’ Liability Law. The only knowledge to be proved is knowledge that the facilities of the terminal are to be utilized indiscr'minately by foreign and domestic cars in foreign and domestic commerce. (Gulf, Colorado & Santa FeRy. Co. v. Texas, 204 U. S. 403, distinguished.)</p> <p>4. The federal statute in giving a remedy against the employer does not cut off nor prohibit a remedy against another. The statutory remedy, in so far as it fixes the liability of the employer, is exclusive as to him. It does not touch the liability of other parties to the wrong.</p> <p>5. No error can be found in the charge that the defendants “ are presumptively responsible for the condition of the switch unless it affirmatively appears to the contrary.” The switch was in their joint control. The settled practice of the terminal required it to be closed unless presently in use. By some one’s blunder it was left open without light or other warning. The situation charged the defendants with a duty to explain.</p> <p>6. A suggestion that the duty does not arise where the act to be explained is the act of fellow-servants cannot be sustained. Employees of the Erie were not fellow-servants, for the Erie was not the master. Employees of the Lehigh Valley, if fellow-servants, might still involve their master in liability for negligence, for the fellow-servant rule has been abolished in eases subject to the federal statute.</p>

November 19, 1920, reversing an award of the state industrial commission made under the Workmen’s Compensation Law and dismissing the claim for compensation. This is a case which comes within the rule in which the courts have allowed compensation. (Carbone v. Loft, 219 N. Y. 579; Heitz v. Ruppert Brewing Co., 218 N. Y. 148; Verschleiser v. Stern & Sons, 188 App. Div. 937; 229 N. Y. 192; McIntyre v. Rodger, 41 Scot.

Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 17, 1920, as affirmed an order of Special Term denying a motion to vacate and set aside the service of the summons upon the defendant by publication. The defendant is, and at all the times herein mentioned was, a resident of the county of Livingston in this state.

A railroad corporation is under no obligation to fence at common law, and section 52 of the Railroad Law, imposing the obligation, equally as in the case of other statutes which are in derogation thereof, should properly be strictly construed.

A constitutional question has been raised as to the validity of section 41 of the Agricultural Law, as applied in this case. The People failed to prove a cause of action. (People v. Ginton, 210 N. Y. 1; People v. Arensberg, 105 N. Y. 123.)

The use of the phrase “ workmen or operatives ” in second group 45 is squarely in line with the purpose of this law as interpreted by this court, and such words are not synonyms of “ employees ” but of a Emited meaning. (Matter of Petrie, 215 N. Y. 335, 338; Post v. Burger & Goelke, 216 N. Y. 544, 553; Bowne v. Bowne Co., 221 N. Y. 28; Hubbs v. Addison Electric Light & Power Co., 191 App. Div. 765; Kolpien v. O’Donnell Lumber Co., 191 App.

<p>Appeal from a judgment of the Bronx County Court, rendered May 26, 1920, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

The appellant’s conditional bill of sale of the steam heating apparatus, not having been filed until after delivery and installation, was void. (McMillan v. Seaman, 101 App. Div. 436; Jermyn v. Hunter, 93 App. Div. 175; McFadden v. Allen, 134 N. Y. 489; Kirk v. Crystal, 118 App. Div. 32; 193 N. Y. 622; Kline v. Cohen, 142 App. Div. 500; Cohoes I. F. & M. Co. v. damn, 190 App.

<p>Insurance — death from septic poisoning arising from use of hypodermic needle — action on policy of accident insurance — nonsuit, on ground that possession of needle was unlawful and without unlawful possession result could not have followed, erroneous — insured not guilty of negligence as matter of law.</p> <p>1. Plaintiff’s intestate died as a result of septic poisoning following the use of a hypodermic needle. In an action to recover upon a policy insuring him against death, “ the direct and approximate result of and which is caused solely and exclusively by external, violent and accidental means,” the trial court granted a motion for a nonsuit on the ground that possession by intestate of the hypodermic needle without a certificate of a physician was a misdemeanor under article 11a of the Public Health Law, as it then existed, and without the unlawful possession of the instrument the result could not have followed. Held, error; that the death of the insured was not due to an unlawful possession of the hypodermic needle; that under the facts the conclusion is inevitable that had the insured been lawfully in possession of the needle his death would have resulted from septic poison due to unsterile condition of the needle or of his sldn or body. The absence of a certificate was not the cause of the accident. The injury would have resulted had a certificate or license been in possession of the insured.</p> <p>2. Proof that the death of the insured was caused by his possession and use of the hypodermic needle does not establish negligence as matter of law and prevent a recovery by reason of a provision of the policy that it does not extend to or cover injuries or death caused by negligence of the insured. The Health Law was not intended to provide protection to insurance companies, but to prevent the constant use of any habit-forming drug and to protect “ habitual drug users.” It does not provide that the use of a hypodermic needle is a crime; therefore, it cannot be said as matter of law that the insured was guilty of negligence. (Amberg v. Kinley, 214 N. Y. 531, distinguished.)</p>

<p>Negligence —• railroads — Federal Boiler Inspection Act — hook near bottom of tender on which to hang pail when drawing water not a dangerous contrivance within the meaning of Federal Boiler Inspection Act.</p> <p>1. In determining a question of proper conditions and safety under the Federal Boiler Inspection Act (36 Stat. at Large, 913, amd. 38 Stat. at Large, 1192), that mechanism which has been in constant use for years without causing injury must be considered proper and safe until some notice or occasion indicates its danger and insufficiency.</p> <p>• 2. Plaintiff’s intestate, -the head brakeman on a train, stepped therefrom as it was slowing down and, after it had stopped, was found alongside with injuries from which he died. After the accident a small piece of cloth similar to the overalls worn by intestate was found upon a small hook near the bottom of the tender placed there for the purpose of hanging a pail when water was to be drawn from the tank. The theory of the plaintiff was that intestate stepped off the engine, was caught by this hook, dragged against the gussets of a bridge and thrown under the wheels. It was contended that the hook was a dangerous contrivance rendering the engine and tender unsafe within the meaning of the Federal Boiler Inspection Act as amended. Held, error; that where the locomotive maker was a reputable concern, the device one which it had planned as giving the best service for the purpose and one which had been in use for years without accident and which in connection with the engine and tender had been inspected by Federal inspectors and passed as complying with the law, the plaintiff failed to make out a cause of action; that the placing of the water opening at the side of the tender was a matter of engineering judgment and that there was no evidence to show that the engine or tender was imperfect, unsafe or improper within the meaning of the act of congress.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 3, 1919, which affirmed a judgment of the Court of Claims dismissing four claims for legal services and two for expert testimony in the Allds investigation of 1910.</p> <p>The Board of Claims erred in finding and deciding that -the Appropriation Act of 1910, chapter 513 of the laws of that year, commonly called the Supply Bill, was not intended to and did not cover the claims of the claimants, and the passage of that act was not intended to and did not create any liability on the part of the state of New York, and in refusing to find, as requested by the claimants, that their claims were considered by the legislature and were included in the $175,000 appropriated in that act, and that they were certified and approved by the officials designated therein and made payable from "such appropriation, to which findings and refusals to find they duly excepted. (Conger v. State, 2 State Dept. Rep. 349.) The legislature, at the close of the investigation under the senate resolution of January 20, 1910, had the power and right to recognize and assume an obligation on the part of the state within a limit to be fixed by it to compensate the counsel employed and the witnesses produced in that investigation for their services and expenses, and to apportion the amount appropriated for that purpose to those representing the two senators personally interested therein. (Town of Guilford v. Supervisors, 13 N. Y. 143; Lehigh Valley R. R. Co. v. Canal Board, 204 N. Y. 471; Cayuga Co. v. State, 159 N. Y. 279; Munroe v. State, 223 N. Y. 208; Cole v. State, 102 N. Y. 48; O’Hara v. State, 112 N. Y. 146; Wheeler v. State, 97 App. Div. 276; People ex rel. Williams v. Dayton, 55 N. Y. 367; O. & S. R. R. Co. v. State, 226 N. Y. 351; United States v. Realty Co., 163 U. S. 427.) Chapter 274 of the Laws of 1912, which conferred upon the Board of Claims jurisdiction to hear, audit and determine the claims presented, certified and approved under the appropriation made in 1910, did not vest in that body jurisdiction to determine whether or not the legislature ought to have recognized the claims for the services and expenses of counsel and witnesses employed and produced in the investigation conducted ■under the senate resolution of January 20, 1910, and whether or not it had power so to do. (Lewis v. State, 112 Misc. Rep. 667; Babcock v. State, 190 App. Div. 147.)</p> <p>The appellants’ conclusion that the appropriation in the Supply Bill of 1910 constituted an assumption of liability on the part of' the state for the payment of the claims in question is without .support of law. (Munro v. State, 223 N. Y. 208.) While the legislature may recognize claims founded in equity and justice,.it is powerless to audit or allow any private claim against the state. (Munro v. State, 223 N. Y. 208; Cole v. State of New York, 102 N. Y. 48; O’Hara v. State of New York, 112 N. Y. 146; Wheeler v. State of New York, 190 N. Y. 406; People ex rel. Grannis v. Roberts, 163 N. Y. 70, 74; Cayuga Co. v. State, 153 N. Y. 279; Quayle v. State, 192 N. Y. 47.) The provisions of chapter 274 of the Laws of 1912, conferring jurisdiction upon the .Board of Claims to hear, audit and determine the claims in question, vested that body with authority to judicially examine, allow or reject the same in whole or in part; (People ex rel. Myers v. Barnes, 114 N. Y. 317; People ex rel. McCabe v. Matthies, 179 N. Y. 242; Munro v. State, 223 N. Y. 208; Cole v. State of New York, 102 N. Y. 48; O’Hara v. State, 112 N. Y. 146.) The proofs submitted were insufficient to establish the claims presented by the appellants and the same were properly dismissed by the trial court. (Matter of Straus, 44 App. Div. 425; Roberts v. State, 160 N. Y. 217.)</p>

fourth judicial department, entered December 23, 1920, which dismissed a writ of certiorari and confirmed a determination of the board of police of the city of Lackawanna in removing the relator from the position of chief of police.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 14,1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The appellant was entitled to assume that the defendant steamship company had performed the duty of inspecting the ring-bolt which broke, and was not required to make further inspection in the absence of anything to excite suspicion or apprehension.

A peremptory writ of mandamus should not issue in this case. (People ex rel. Gaffigan v. Rickerson, 56 App. Div. 588; People ex rel. Gordon v. Pres., etc., 8 Wkly. Dig. 243; People ex rel. Wogan v. Rafferty, 208 N. Y. 451; People ex rel. Olmstead v. Meahl, 219 N. Y. 270; Stubbe v. Adamson, 173 App. Div. 305; Matter of McNeile, 107 App. Div. 338; People ex rel. O’Brien v. Butler, 120 App. Div. 751; People ex rel. Mott v. Supervisors, 64 N. Y. 600; People ex rel.

The plaintiff’s intestate was guilty of contributory negligence as a matter of law and a nonsuit was properly granted. (Krintzman v. I. S. Ry. Co., 84 N. Y. Supp. 243; Brickell v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 290; Schron v. S. I. L. R. Co., 16 App. Div. 111; McAuliffe v. N. Y. C. & H. R. R. R. Co., 88 App. Div. 356; Fiddler v. N. Y. C. & H. R. R. R. Co., 64 App. Div. 95; Fogassi v. N. Y. C. & H. R. R. R. Co., 19 Misc. Rep. 108; 17 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1919, affirming a determination of the Appellate Term, which reversed a judgment in favor of defendant entered upon an order of the trial justice in the City Court of the city of New York setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint and reinstated said verdict.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 1920, dismissing the appeal of defendants from so much of a judgment in their favor entered upon a verdict as was amended by a subsequent order of the court permitting the insertion of recitals as to certain special findings therein. The Appellate Division erred in affirming the order amending the judgment.

<p>Appeal — reversal by Appellate Division on facts — when question of law is presented for this court — life insurance — lapse for non-payment of premium — policy not reinstated by simple payment of amount due where contract provides that proof of insurability must also be provided — keeping of premiums not a waiver.</p> <p>1. A question of fact is not necessarily raised by the statement that the Appellate Division reverses upon the facts. If there be no conflict in the evidence or in the inferences to be drawn therefrom, a question of law is presented for this court to pass upon.</p> <p>2. Where a policy of life insurance provided that upon non-payment of the premium within thirty-one days after it was due said .policy should lapse and that it might be reinstated only by payment of the premium with interest and production of evidence of insurability satisfactory to the insürer, and the insured failed to pay the premium when due or at the expiration of an extension period which he procured, but eight months thereafter sent a check for the amount due, but upon being requested to supply evidence of his insurability failed to comply, it must be held that the policy has lapsed and has never been restored.</p> <p>3. The fact that the insurer kept the premium did not constitute a waiver of the provision requiring proof of insurability.</p>

<p>Attorney-general — counties — special deputy attorney-general designated under section 62 of Executive Law to attend Supreme Court and supersede local prosecutor — authority of attorney-general to fix compensation — right of county officers to audit same.</p> <p>Section 61 of-the'Executive Law, as amended (L. 1919, ch. 165), empowers the attorney-general to “ appoint such deputies as he may deem necessary and fix their compensation within amounts appropriated therefor by the legislature,” and subdivision 2 of section 62 of the same law directs him, upon the order of the governor, to attend the Supreme Court, and supersede the local prosecutor, and provides that “ in all such cases, all expenses incurred by the attorney-general, including the salary or other compensation of all deputies employed, shall be a county charge.” The scheme of the statute is payment by the county of the expenses of state officers in the discharge of county functions. If expenses of special deputies assigned to such duties are covered by appropriations their allowance by the attorney-general is final and the duty of the county is absolute to make restitution of the quota incurred or expended for its benefit, but if the expenses of special deputies are not covered by appropriations, allowance by the attorney-general is not within the authority conferred by section 61 and is ineffective to impose, without restraint or limitation, a charge upon the county. The charge is subject in such circumstances, like other county charges, to audit by the county officers, and rejection if excessive.</p>

Cross-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered August 30, 1920, which modified and affirmed as modified an order of Special Term in a certiorari proceeding to review an assessment upon special franchises of the relator in the boroughs of- Kings and Queens in the city of New York for the year 1908. The assessments for prior occupation crossings should have been canceled. (People ex rel.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 12, 1920, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The doctrine that “ the oWñer--a£-^F'wharf, pier or like projection, even if it run out beyond the proper exterior line, has a good right against all private intruders or trespassers ” applies only where the projection is an integral part of the wharf or pier, and has never been applied, even then, when such projection is an unlawful interference with navigation. (Wetmore v. Atlantic White Lead Co., 37 Barb. 70; Wetmore v. Brooklyn Gas Light Co., 42 N. Y. 384; C. L. Navigation Co. v. K. Navigation Co., 26 Wkly. Dig. 145.) The decedent was not a trespasser, in any sense, upon the defendant’s property. (Wittleder v. Citizens’ Illuminating Co., 47 App. Div. 410; Wilson v. American Bridge Co., 75 App. Div. 596; Greenshow v. Lake Shore & M. S. R. Co., 140 App. Div. 687; 205 N. Y. 317.) While the decedent was not in the fairway, in a vessel, or swimming, he was nevertheless in the fairway, when he was in a place which was out over the waters of the ship canal, and beyond the defendant’s property line. (The Oliver, 22 Fed. Rep. 848; Butler v. Frontier Tel. Co., 186 N. Y. 486; Weitzman v. Barber Asphalt Co., 120 App. Div. 891; 190 N. Y. 452.) The Harlem river is a public highway; and the plaintiff’s decedent was entitled to bathe therein, subject only to the rights of the public and to the duties owed to the public. (People v. Lambier, 5 Denio, 2; Angell on Tidewaters [2d ed.], 112; Leverich v. City of Mobile, 110 Fed. Rep. 170; S. P. & P. R. R. R. Co. v. Schurmier, 7 Wall. 272.) The owner or occupier of land is bound to exercise reasonable care in its use, and to take reasonable precautions to avoid injuring persons on adjoining j premises. (Weitzman v. Barber Asphalt Co., 120 App. Div. 891; 190 N. Y. 452; 129 App. Div. 443.)</p> <p>Thfe decedent here was a trespasser and the railroad company owed him no duty other than not to intentionally, wantonly or recklessly injure him. (Nicholson v. Erie R. R. Co., 41 N. Y. 525; Chrystal v. Troy R. R. Co., 105 N. Y. 164; Albrecht v. Rochester, S. & E. R. R. Co., 205 N. Y. 230; Wetmore v. B. G. L. Co., 42 N. Y. 384.)</p>

<p>Transfer tax — decedent’s estate — non-resident having capital invested within state must concurrently have been doing business therein to warrant tax — business of a corporation not that of individual stockholders — when finding that decedent having capital invested in a corporation within the state was doing business within state not supported by evidence — deposit of money in savings bank and allowance of interest does not constitute doing business within state — rehearing under Tax Law.</p> <p>1. Under the provisions of the Tax Law (Cons. Laws, eh. 60), imposing a tax upon property of a decedent “ where the transfer is by will or intestate law of capital invested in business in the state by a non-resident of the state doing business in the state either as principal or partner,” a non-resident decedent at the time of his death must not only have capital invested in business within the state but concurrently therewith must have been doing business within this state, otherwise the tax may not be imposed. (People ex rel. C. J. R. & S. Y. Co. v. Roberts, 154 N. Y. 1; People ex rel. M. E. R. R. & L. Co. v. Knapp, 229 N. Y. 502, followed.)</p> <p>2. The business carried on by a corporation cannot be held to be that of its individual stockholders. Property unqualifiedly held by a corporation is owned alone by the corporate body. Stockholders have an interest therein but the business carried on is solely that of the corporation.</p> <p>3. The fact that a decedent, when a corporation was organized, contributed the capital and took shares of stock therefor and by-transfer or gift disposed of all but a controlling interest in the capital stock thereof, is immaterial in a transfer tax proceeding where the ividenee does not disclose or admit of inference that the corporation i making investments was dealing with the property of decedent s agent and turning over to her the entire profit realized from the me, but rather that it was dealing in securities to which it had title d any profits arising therefrom belonged to and were the property the corporation, and a finding in such a proceeding that decedent had capital invested in the corporation and thereby was doing business in this state at the time of her death cannot be sustained.</p> <p>4. Evidence that decedent, who was the owner of certain mortgages on real estate in this state, at various times prior to her death transferred by assignment to a corporation, the capital stock of which Was held in her interest and of which her son was president, mortgages of a large face value, some of which were thereafter foreclosed and the property bid in by the company, some of which were foreclosed and the property sold to outsiders, and some- of which were held at decedent’s death, and that the account of decedent disclosed a net credit for cash advanced by her to said corporation, does not support a finding that decedent was doing business in this state.</p> <p>5. The deposit of money in a savings bank or trust company and allowances and credit by the depository of interest thereon does not constitute the depositor as one engaged in doing business within this state, within the meaning of the Tax Law. (Matter of Romaine, 127 N. Y. 80, distinguished.)</p> <p>6. Where the Court, of Appeals reverses an order of the Appellate Division, the effect of" which is an affirmance of the order of the surrogate in a transfer tax proceeding, thereby precluding the remittance of the proceeding to that officer for further hearing or more complete investigation, the remedy of the state, if any, in the way of a rehearing is to be found under the provisions of section 232 of the Tax Law,</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 17, 1920, which reversed an order of Special Term overruling a demurrer to a counterclaim and sustained said demurrer.

<p>Appeal from a judgment entered March 25, 1920, 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 pf the complaint.</p> <p>After the sureties have received the benefit for which their bond or undertaking was given, they are estopped from questioning its recitals or from setting up defenses to the judgment to defeat their liability. (Am. Exch. Bank v. Goubert, 135 App. Div. 371; Wing v. Rogers, 138 N. Y. 361; Kelly v. McCormick, 28 N. Y. 318; Dodge v. St. John, 96 N. Y. 260; Harrison v. Wilkin,. 69 N. Y. 412; Dye v. Dye, 12 Colo. 206; Harding v. Kuessner, 172 Ill. 125; Sache v. Am. Surety Co., 72 App. Div. 60; 177 N. Y. 551; Mexico v. Ochershauser, 37 Hun, 533; People v. Wilson, 169 Ill. App. 452.) The defendants cannot set up defenses against the judgment which are lost to their principal. The judgment of November 19, 1917, estops them from denying good title now. (Kmetz v. DeRonde, 186 App. Div. 909; Granger v. Parker, 142 Mass. 186; McVey v. Peddie, 69 Neb. 525; Schwamann v. Truax, 179 N. Y. 35, 44; Kelly v. McCormick, 28 N. Y. 318; Brownell v. Snyder, 122 App. Div. 246; Elliott v. Brady, 192 N. Y. 221; Seymour v. Smith, 114 N. Y. 481; Keithsburg R. R. Co. v. Henry, 90 Ill. 255; Rosenberg v. Stover, 67 N. J. L. 506.)</p> <p>The real nature of the undertaking, so far as the figures $9,000 are concerned, was an agreement that George H. DeRonde would pay all costs and damages awarded against, him on the appeal, not exceeding $9,000. (Bennett v. Am. Surety Co., 73 App. Div. 468; Erdle v. Bassett, 94 Misc. Rep. 666; Post v. Doremus, 60 N. Y. 371; Burdett v. Lowe, 85 N. Y. 241; J. H. Mut. Life Ins. Co. v. Lowenberg, 120 N. Y. 44; Nat. M. B. Assn. v. Conkling, 90 N. Y. 116; McCluskey v. Cromwell, 11 N. Y. 593; Ward v. Stahl, 81 N. Y. 406.) The trial court erred in holding that the undertaking was a bond in the penal sum of $9,000 and upon breach of condition, plaintiff was entitled to recover such penalty in full, without any proof of damages whatever. (Beil v. Supreme Council, 42 App. Div. 168; Kuntz v. Schnugg, 99 App. Div. 191.) If by any possible interpretation the expression “ damages on the appeal ” could be construed “ as damages in case of aiiy breach of the undertaking, though not awarded on appeal,” nevertheless in that view damages must be ascertained to compensate the particular breach according to the usual rules of law. (Kuntz v. Schnugg, 99 App. Div. 191; Bensinger v. Erhardt, 74 App. Div. 169.) Defendants complied with their undertaking or tendered compliance therewith. But plaintiff did not accept such compliance and tender on the part of defendants because plaintiff could not deliver the deed conveying the title directed by the judgment. (Kuntz v. Schnugg, 99 App. Div. 191; Eddy v. Davis, 116 N. Y. 247.)</p>

<p>Negligence — railroads — when driver of automobile, killed as a result of being struck by a train at a railroad crossing, guilty of contributory negligence.</p> <p>Where in an action to recover for the death of plaintiff’s intestate, who was Mlled as a result of a collision between one of defendant’s trains and an automobile which he was driving, it appeared that when intestate came within one hundred and fifty feet of the track he could see along it over one thousand feet in the direction from which the train was approaching at a speed of forty-five miles an hour making all the noise incident to its movement and continuously sounding its bell and showing its headlight; that the crossing bell was ringing; that gates with lights upon them were being lowered into position which indicated danger and that the gatemen shouted at intestate and swung their lanterns across the highway,- the jury should not be permitted to say that intestate was free from contributory negligence.</p>

There was evidence which required the question of what errand the car was on to be submitted to the jury. (Ferris v. Sterling, 214 N. Y. 249; Morris v. Kohler, 41 N. Y. 42; Rose v. Balfe, 223 N. Y. 481; Ellwood v. Western Union Tel. Co., 45 N. Y. 549; Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Schuster v. Erie R. R. Co., 145 App. Div. 71; 205 N. Y. 569; Quick v. Am.

The trial court erroneously excluded the testimony of the defendant Myrna Schiller of conversations between Addie N. Schiller and Calvin Forbes, when the plaintiff executed the deed of the farm, dated January 19, 1909, to Addie N. Schiller. (Ten Eyck v. Whitbeck, 156 N. Y. 341; Whitehead v. Smith, 81 N. Y. 151; Carpenter v. Soule, 88 N. Y. 251; Albany County Sav. Bank v. McCarty, 149 N. Y. 71, 84; Matter of Potter, 161 N. Y. 84; Matter of Hedges, 57 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 18, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The order as originally placed invoked the National Defense Act, required precedence, and excused delay in the performance of plaintiff’s contract. (National Defense Act, § 120; 39 Stat. 213; Comp.

' Appeal from a judgment, entered April 24, 1920, 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 injury to the infant plaintiff was sustained while the defendant’s servant was acting within the scope of his employment and in the course of his master’s business. (Jones v. Wiegand, 134 App.

Plaintiff had a right to assume that defendant would continue north around the center of the intersection before turning left into the driveway, thus passing to the rear of plaintiff’s motorcycle. (Duryee v. Mayor of New York, 96 N. Y. 477 ; 2 McQuillin on Mun. Corp. 1748; People ex rel. Heiner v. Keeper, etc., 55 Misc.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 7, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The plaintiff’s exclusive remedy was a proceeding for compensation under the Workmen’s Compensation Law. An award was made under that statute and that award has been paid.

Where a landlord undertakes to repair leased premises at the request of the tenant, although under no obligations to do so, he is answerable for injuries resulting in the defective performance of the work. (Thorne v. Deas, 4 Johns. 84; Levine v. Baldwin, 87 App. Div. 150; Zelser v. Cook, 62 Misc. Rep. 471; Blumenthal v. Prescott, 70 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 30,1920, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 8, 1916, unanimously affirming a judgment in favor of defendant entered upon a verdict.

<p>Tax — Income Tax Law — constitutionality of provision requiring non-residents to pay tax on net income of business carried on in this state (Tax Law, Oons. Laws, ch. 60, amd. L. 1919, ch. 627, and L. 1920, ch. 191) •— provision for exemptions in certain case not invalid as amended by Laws 1920, ch. 191 — tax imposed, under this statute, not invalid as being imposed upon interstate commerce, upon imports, or upon imposts and duties (U. S. Const, art. 1, § 8, subd. 3; art. 1, § 9, subd. 6; art. 1, § 10, subd. 10), nor is such tax retroactive.</p> <p>1. While a state may not prohibit the citizens of other states from carrying on legitimate business within its boundaries it may require such non-residents to contribute in taxes for the support of its government. Subdivision 1 of section 2 of article 4 of the Constitution of the United States provides: “ The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Non-residents are thereby protected from discrimination in favor of residents but are not exempt from the burdens of taxation.</p> <p>2. Where the question is whether a state taxing law contravenes rights secured by that instrument, the decision must depend not upon any mere question of form, construction or definition, but upon the practical operation and effect of the tax imposed. The practical burden of a tax imposed upon the net income derived by a nonresident from a business carried on within the state is no greater than that of a tax upon the conduct of the business, and this the state has the lawful power to impose. (Shaffer v. Carter, 252 U. S. 37, followed.)</p> <p>3. The tax imposed by the Tax Law, as amended by chapter 627, Laws of 1919, upon and with respect to the net income from every business carried on in this state by persons not residents of the state, is not for the privilege of carrying on a legitimate business within the boundaries of the state, for that is a privilege granted by the Federal Constitution. It is the imposition of a tax upon business done by a non-resident in this state no greater in any respect than the tax imposed upon the conduct of such a business by a resident of the state. It is measured by a percentage on the net income from the business. Such a tax is just and constitutional.-</p> <p>4. Section 362 of article 16 of the Tax Law (L. 1919. oh. 627), relating to exemptions, improperly discriminated against non-residents, but it was a separable part of the act which in no way affected its general purpose, and although so long as the discrimination continued in the act it resulted in making the tax as against a nonresident uncollectible, when the act was amended by chapter 191 of the Laws of 1920, so as to eliminate the discrimination, the act as expressly provided therein remained in full force and effect, and the tax against the relator, a non-resident, should be sustained as if the unconstitutional distinction therein as between resident and nonresident in the matter of exemption had never been in the act.</p> <p>5. Even if the legislature had not expressly stated in the act, as it did (§ 385, subd. 2), that if any part thereof was adjudged invalid it should not impair or invalidate the remainder of the act, it cannot reasonably be contended that the legislature would have failed to pass the act had it not contained the provision in regard to exemptions discriminating against non-residents contained therein.</p> <p>6. The objections that the tax is invalid because it is imposed upon interstate .commerce in violation of the United States Constitution (Art. 1, § 8, subd. 3) and upon exports in violation of the United States Constitution (Art. 1, § 9, subd. 5) and upon imposts or duties laid by the state on exports without the consent of congress in violation of the United States Constitution (Art. 1, § 10, subd. 2), and that it is retroactive, are without merit.</p> <p>7. Orders for goods were taken by the relator in foreign countries by traveling salesmen, which there became consummated agreements of purchase and sale between the relator and such customers. As to these transactions, the proceedings are remanded to the comptroller for further hearing as to that part of the tax based upon the sales, if any, consummated by the traveling salesmen of the relator, and if he finds that such sales were consummated outside of the. state of New York then to adjust the amount of the net income of the relator from such sales according to the proportionate amount of business done in making the purchase of the goods and forwarding the same in the city of New York and the sales thereof made as asserted outside of the state of New York.</p>

The appeal is taken by the executors and trustees and by each and every person interested in the construction of the will and the accounting of the said executors and trustees.

Appeal, by permission, from- a judgment, entered May 5, 1920, upon an order of the Appellate Division of the Supreme Court in the first judicial department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division and directing judgment in favor of defendant upon the verdict at the trial court. Defendant on the pleadings and proof was a common carrier and insurer of the goods and liable whether negligent or not.

The trial court erroneously awarded the respondent Halladay $850 for expenses and $2,000 as an additional allowance out of the deposited fund, which money should have been awarded to McGraw. (Willard v. White, 55 Hun, 581.) The trial court erroneously awarded the respondent Halladay $31,868.41 of the deposited fund which should have been awarded to the appellant McGraw.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 7, 1921, which affirmed an order of Special Term granting a motion for a temporary injunction. The following questions were certified: “1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 7, 1921, which affirmed an order of Special Term granting a motion by the city of New York for leave to intervene as a party plaintiff. The following questions were certified: “ 1. Had the city of New York any interest in this cause of action? “ 2.

Hallenbeck, deceased. The decision made by the Appellate Division and the order appealed from is founded upon an erroneous conception of the law of pledge. (Wood v. Fisk, 215 N. Y. 233; Goelet v. Bank of America, 160 N. Y. 549; Smith v. Savin, 141 N. Y. 315; Fairbanks v. Sargent, 117 N. Y. 320; Warner v. Fourth Nat. Bank, 115 N. Y. 251; Simpson v. Jersey City Contracting Co., 165 N. Y. 193; Farwell v. Importers, etc., Nat. Bank, 90 N. Y. 483; Matter of Mills, 125 App.

<p>Equity — unfair competition — when courts will restrain use in cartoons, prepared for publication and sale as a business, of imaginary and fictitious characters, and names applied to them, originated and used by the plaintiff in connection with his work as a cartoonist.</p> <p>1. A person who uses an unregistered name or mark can prevent others from using the same so as to deceive the public into thinking that the business carried on by such persons and the goods sold by them are his. Such conduct as is calculated to deceive the public into believing that the business of the wrongdoer is the business of him whose name, sign or mark is simulated or appropriated can be restrained in equity. The courts are not confined in the exercise of their equitable powers to preventing unfair competition among the manufacturers of and dealers in goods. The controlling question in all cases where the equitable power of the courts is invoked is, whether the acts complained of are fair or unfair.</p> <p>2. The principle which interdicts unfair competition in trade will protect a publisher who has imparted to his books peculiar characteristics, which enable the public to distinguish them from books published by others and containing the same literary matter, against the copying of the characteristics though .the copyright on the literary matter jas expired.</p> <p>3. Where in an action to enjoin alleged unfair competition in making and publishing cartoons it appears from the findings of fact that the grotesque figures in plaintiff’s cartoons, as well as the names applied to them have in consequence of the way in which they have been exploited by the plaintiff and the appearance and assumed characters of the imaginary figures have been maintained, acquired a meaning apart from their primary meaning, which is that plaintiff originated them and that his genius pervades all that they appear to do or say and it further appears that plaintiff is the owner of the proprietary right existing in the characters represented in such figures and names and that they are of his creation, defendant may properly be restrained from using in a cartoon, or in cartoons prepared by others for publication and sale as a business, the same imaginary and fictitious characters and the names applied to them. (New York Herald Co. v. Star Co., 146 Fed, Rep. 204; Outcalt v. New York Herald, 146 Fed. Rep, 205; New York Herald Co. v. Ottawa Citizens Co., 41 Canada Sup. Ct. 229, distinguished.)</p>

Article 5,. section 9, of the Constitution prohibits any preference in the matter of appointment or promotion in the civil service as the result of. competitive examination other than the specific preference given by this section of the Constitution to veterans of the Civil War. (Matter of Sweeley, 12 Misc. Rep. 174; 146 N. Y. 401; Matter of Keymer, 148 N. Y. 219; People ex rel.

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court, entered July 27, 1920, which reversed an order of Special Term denying a motion to continue a temporary injunction to restrain defendant from increasing rates charged for gas furnished to private consumers over the sum fixed therefor in the town’s consent, ■ pending a hearing before the public service commission and continued the injunction.</p> <p>The written consent containing the condition that appellant furnish gas for fifty years to the inhabitants of the respondent at a fixed rate, at the time of its making, by operation of law, had read into it the provisions of all statutes of the state then existing giving rights to the parties or limiting their rights. (People ex rel. City of New York v. Nixon, 229 N. Y. 356.) The rates specified in the consent were to endure for fifty years according to the written words, but the written words must be modified by the' provisions of existing statutes. (Armour Packing Co. v. United States, 209 U. S. 56; Louisville & Nashville R. R. v. Motley, 219 U. S. 467; Mun. Gas Co. v. P. S. Comm., 225 N. Y. 89.) The filing of the new schedule of rates strictly in accord with the method set forth in the provisions of the statute by the appellant in order to earn its actual expenses of operation so that it might live was not the exercise of a delegated power from the legislature to the appellant to modify its contract with the respondent. (P. S. Comm. v. I. N. Gas Co., 184 App. Div. 285; People ex rel. City of New York v. Nixon, 229 N. Y. 356; Mun. Gas Co. v. P. S. Comm., 225 N. Y. 89; P. S. Comm. v. P. N. Gas Co., 111 Misc. Rep. 692.)</p> <p>The franchise agreement is a binding contract between plaintiff and defendant and neither party has power to abrogate its own obligations thereunder. Such a contract may only be modified by mutual consent or by the public service commission by the due process provided by law. (Pond v. New Rochelle Water Co., 183 N. Y. 330; Farnsworth v. Boro. Oil & Gas Co., 216 N. Y. 40; Matter of International Ry. Co. v. Rann, 224 N. Y. 83; P. S. Comm. v. I. N. Gas Co., 184 App. Div. 285; People ex rel. Mun. Gas Co. v. P. S. Comm., 224 N. Y. 156; Municipal Gas Co. v. P. S. Comm., 225 N. Y. 89; People ex rel. Vil. of South Glens Falls v. P. S. Comm., 225 N. Y. 216; Vil. of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123.)</p>

The special act in so far as it attempts to authorize any recovery upon the second and third causes of action is unconstitutional. (State Const, art. 3, § 16.) “ No private or local bill shall embrace more than one subject and that shall be expressed in the title.” (Matter of Mayor, etc., of City of New York, 99 N. Y. 577.)

It was error for the court to refuse to charge the jury the other degrees of homicide under section 610 of the Penal Law. (People v. Spohr, 206 N. Y. 516; People v. Marendi, 213 N. Y. 600; People v. Marwig, 227 N. Y. 382.) The court correctly charged the jury as to the degree of crime. (People v. Schleiman, 197 N. Y. 383; People v. Patini, 208 N. Y. 176; People v. Miles, 143 N. Y. 383.)

<p>Contract — alleged contract consisting solely of letter written by defendant to plaintiff ■— such contract void and invalid for lack of mutuality and consideration.</p> <p>Where an alleged contract consisted solely of a letter written by the sales manager of the defendant company to the plaintiff company stating in substance that defendant had entered plaintiff’s contract for its requirements of glue for a designated year at a specified price, deliveries to be made during the year as ordered, at the bottom of which letter the president of the plaintiff wrote, “Accepted, Oscar Schlegel Manufacturing Company,” and returned it to the defendant, there was no contract for a breach of which a recovery can be had. Such alleged contract was invalid because it lacked mutuality and had no express consideration nor any mutual promises from which such consideration might be inferred. The plaintiff did not agree to do or refrain from doing anything. The only obligation assumed by it was to pay a certain price per pound for glue if any should be ordered. The agreement was not under seal, and, therefore, fell within the rule that a promise not under seal by one party, with none by the other, is void. Unless both parties to a contract are bound, so that either can sue the other for a breach, neither is bound.</p>

Í' Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 20, 1921, in favor of plaintiff upon the submission of a controversy under section 1279 of the Code of Civil Procedure. If this legislation is violative of the Constitution in any of the particulars mentioned, then the bonds would be void and non-enforcible against the state.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16, 1920, affirming a judgment in favor of defendants, entered upon a dismissal of the complaint by the court on trial at Special Term.</p> <p>The court erred in dismissing plaintiff’s complaint. Its interpretation of the Stamp Tax Law was erroneous. (Travis v. Knox Terpezone Company, 215 N. Y. 259; Cushman v. Thayer, 76 N. Y. 365; Matter of Paul, 165 N. Y. Supp. 413; People ex rel. Hatch v. Reardon, 184 N. Y. 431; Smyth v. Pure Ice Co., 193 App. Div. 479; Bean v. Flint, 204 N. Y. 153; Lyon v. Farmers’ L. & T. Co., 184 N. Y. Supp. 380; U. S. Radiator Co. v. New York, 208 N. Y. 144; Holmes v. Camp, 219 N. Y. 359)</p> <p>The dismissal of the complaint because of the failure to comply with the provisions of sections 270 and 278 of the Tax Law was proper. (Thrall v. Cuba Village, 88 App. Div. 410; Abbott’s Trial Brief on Pleadings, § 1010; Parmalee Company v. Haas, 171 N. Y. 579; Millbank v. Jones, 127 N. Y. 376.)</p> <p>Upon such a delivery of certificates as that involved in this case, the stamps must be attached to the certificate and this must be done at the time of delivery. (Waddle v. Cabana, 220 N. Y. 18; Phelps-Stokes Estates v. Nixon, 222 N. Y. 93; Sheridan v. Tucker, 145 App. Div. 145; Matter of Ball, 161 App. Div. 79; Matter of Raleigh, 75 Misc. Rep. 55; M. L. Ins. Co. v. Nicholas, 144 App. Div. 95; Dinnean v. Dinnean, 90 Misc. Rep. 121.)</p> <p>The payment of the tax and the affixing and cancellation of stamps was a condition precedent to the commencement of any action or legal proceeding based on the transfer of the certificates from Adelaide B. Luitwieler to Samuel W. Luitwieler. (Phelps-Stokes Estates v. Nixon, 222 N. Y. 93; Phillips v. Crossman, 76 Misc. Rep. 496; Dinnean v. Dinnean, 90 Misc. Rep. 121; M. L. Ins. Co. v. Nicholas, 144 App. Div. 95.) Failure to affix stamps on certificates of stock at the time of the transfer of the same is not only highly penal but criminal. The crime can be charged to the party liable for the tax or to any agent or broker who acts-for him, or to any officer of a corporation who makes transfer upon the books of the corporation. No court will render judgment directing a defendant to perform an act which will expose him to criminal and civil liability. (Cons. Laws, ch. 60, § 272.)</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 17, 1920, which reversed an order of Special Term denying a motion by plaintiff for judgment on the pleadings and sustaining a demurrer by defendant to the amended complaint and granted said motion.</p> <p>The following question was certified: “ Does the amended complaint herein state facts sufficient to constitute a cause of action? ”</p> <p>The plaintiff should not recover on the amended complaint herein because there is no connection between the defendant’s refusal to carry out his contract with the Sweet’s Steel Company and the refusal of the Sweet’s Steel Company to pay to the plaintiff the commission which he was entitled to recover from it as a consideration for assigning his contract to the Sweet’s Steel Company. (Hevia v. Wheelock, 162 App. Div. 759; Reis v. Zimmerli, 224 N. Y. 351.)</p> <p>The allegations in the complaint clearly show that this is an action for breach of contract and the remedy sought is damages for such breach. (Darling v. Moskowitz, 159 N. Y. Supp. 672; Newman v. Pierson, 182 N. Y. Supp. 227; Amory v. Washington Steamboat Co., 120 App. Div. 818; Livermore v. Crane, 26 Wash. 529; Cavender v. Addingham, 2 Mo. App. 551; Atkinson v. Pack, 114 N. C. 597; Sells v. Parsons, 132 Iowa, 543.)</p>

<p>Motion for re-argument. (See 230 N. Y. 48.)</p>

Plaintiff was struck and run over by an automobile truck owned by defendants and being operated in their business by one of their servants.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department entered December 1, 1919, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court upon a special verdict answering certain questions submitted to the jury.

<p>Motion to amend remittitur. (See 230 N, Y. 343.)</p>

<p>Motion for order requiring that undertaking be-furnished by appellants.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1920, which reversed an order of Special Term overruling a demurrer to the complaint and sustained such demurrer. The action was for breach of a written contract by which defendant agreed to deliver “ as soon as possible ” certain linens. The complaint alleged failure to deliver within a reasonable time.

<p>Motion to amend remittitur. (See 230 N..Y. 495.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 15, 1919, unanimously affirming a judgment of the Chautauqua County Court which affirmed a judgment in favor of plaintiffs entered upon a decision of the Municipal Court of Dunkirk on trial without a jury. The action was to recover damages arising from failure by defendant to send and deliver a telegram.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 6, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was a pipe fitter and was employed by the H. G. Vogel Automatic Sprinkler Company at the time of the accident.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered August 30, 1920, which modified and affirmed as modified an order of Special Term in a certiorari proceeding to review an assessment for taxation of special franchises of the relator in the boroughs of Kings and Queens in the city of New York for the year 1909.

an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 27, 1920, which unanimously affirmed an order of Special Term reducing an assessment for taxation of special franchises of the relator in the boroughs of Kings and Queens, city of New York, for the year 1917.

The claim was approved by the attorney-general. Defendant contended that the charge for services was subject to audit, while relator claimed that the city was required to pay any sum fixed by the attorney-general, irrespective of the value of the services rendered.

The claim was approved by the Attorney-General. Defendant contended that the charge for services was subject to audit, while relator claimed that the city was required to pay any sum fixed by the attorney-general, irrespective of the value of the services rendered.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 11, 1921, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the comptroller of the city of Schenectady to pay the premium on a policy of group insurance taken out by the city for the benefit of its employees.'</p>

Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1919, unanimously affirming a judgment in favor of defendants entered, upon a dismissal of the complaint by 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 October 17, 1919, which affirmed an order of Special Term . denying a motion to vacate and set aside a requisition in replevin, to direct the sheriff to return the replevied chattels to the defendants and to dismiss the complaint.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 21, 1921, which denied a motion to resettle a prior order; also appeal from order of said court, entered December 23, 1920, denying a motion to strike out ‘defendant’s memorandum; also appeal from order of said court, entered December 10, 1920, denying motion for re-argument, and appeal from order of said court entered November 5, 1920, denying a motion for final judgment.</p>

Appeal, by perlnission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 29, 1921, which reversed an order of Special Term denying a motion to vacate an attachment and granted said motion.

Appeal, by permission, from an order of the Appellate • Division of the Supreme Court in the second judicial department, entered January 7, 1921, which affirmed an order of Special Term overruling a demurrer to the complaint. The action sought to restrain the defendant from charging plaintiff or collecting or receiving from him the sum of one dollar and forty cents per 1,000 cubic, feet of gas used by him on the grounds that such rate was unlawful and unreasonable.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 24, 1920, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law. Claimant was an electrician, and while grinding on an emery wheel in the course of his employment, some pieces of emery and steel flew into his eye.

<p>Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York, rendered December 7, 1920, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

The relator in this proceeding attacks the constitutionality of chapter 670 of the Laws of 1921 upon ground that the legislature repassed the act before the expiration of the fifteen days allowed to the mayor of the city of New York to consider and return the same under section 2 of article 12 of the State Constitution.

<p>Motion for re-argument. (See 231 N. Y. 255).</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 15, 1921, which unanimously disbarred the appellant herein from practice as an attorney and counselor at law. The charges were as follows: That the appellant, contrary to the Appellate Division’s admonition in a former proceeding against him (175 App.

<p>Evidence — witness not disqualified under section 829 of Code of Civil Procedure where it appears she will not be benefited by her testimony — re-argument will not be granted on ground that minor point was not called to court’s attention on original argument.</p> <p>1. In order to escape the disqualifications imposed by section 829 of the Code of Civil Procedure upon a person from, through or under whom a party or interested person derives his interest or title, it is not necessary that the proposed witness should be injured by the testimony which she offers; it is only necessary that she should not be benefited thereby.</p> <p>2. A re-argument will not be granted because on a minor point counsel failed to call to this court’s attention in the first instance some argument or evidence which they now think might have changed our views.</p>

<p>Motion for re-argument. (See 231 N. Y. 639.)</p>