Volume 232 — New York Reports

Appeal, by permission, but without certification of questions, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1921, which unanimously dismissed an appeal from an order of Special Term denying a motion to set aside or modify the report of appraisers appointed under section 17 of the Stock Corporation Law to appraise the value of certain shares of the capital stock of the appellant herein, held by the respondents.

order of the Appellate Division of the Supreme Court in the third judicial department, entered July 13, 1921, which reversed an order of Special Term increasing, on certiorari, an award made by respondent to the relator for the value of sheep killed by dogs, and dismissed the proceeding. The council acting in a judicial capacity, its decision can be reviewed by a writ of certiorari. (People ex rel. Martin v. Westchester County, 57 App. Div. 135; People ex rel.

The defendant, if liable at all, is liable only as a joint tort feasor with John L. Mullen. (McNamara v. Eastman Kodak Co., 220 N. Y. 180; Brogan v. Hanan, 55 App. Div. 92.) A release of one of two or more joint tort feasors releases all. (Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Gilbert v. Finch, 173 N. Y. 455; Brogan v. Hanan, 55 App.

Newham was engaged in the performance of a maritime contract when injured, and, therefore, the state industrial commission was without jurisdiction to make an award in his favor.

<p>Tax—■ franchise tax on foreign corporations for privilege of doing business in this state — validity of provision of statute authorizing comparison of total assets of corporation with assets within the state as a basis for the computation of the sum on which the tax is to be computed.</p> <p>1. The annual tax imposed upon foreign business corporations (Tax Law [Cons. Laws, eh. 60], § 209) authorized to do business in the state of New York which makes a portion of its net income earned wholly outside the state the basis of the taxable net income in New York, is, although in practical operation an income tax, primarily a tax levied for the privilege of doing business within the state. (People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48, followed.)</p> <p>2. Where a year’s business of a foreign corporation, transacted within the state, produces no net income, and a basis for the tax is found under that part of the statute that provides for a comparison of the total assets with the assets in the state of New York as a basis for the computation of the sum on which the tax is to be computed, such a method of levying the tax is not inherently arbitrary, and, therefore, unconstitutional, as a tax on property outside the state because the income out of which the tax is paid is property outside of the state of New York and as such beyond the jurisdiction of the state. The statute attaches a value to the privilege of doing business in this state based not on the net income produced in this state merely, but on the proportion of its capital employed here.</p>

The court below committed reversible error in holding that a plaintiff in the Supreme Court of this state must allege jurisdiction facts. (N. Y. Const, art. 6, § 1; Hart v. Hatch, 3 Hun, 375; Alexander v. Bennett, 60 N. Y. 204; People ex rel. Ryan v. Green, 58 N. Y. 295; People v. Nichols, 79 N. Y. 582; People ex rel. Swift v. Luce, 204 N. Y. 478; Matter of P. S. Com. v. Bklyn. H. R. Co., 105 Misc.

The exceptions to the charge and to the refusal to charge call for reversal. (Potter v. Warner, 91 Penn. St. 263; Jones v. Vroom, 45 Pac. Rep. 234.) No negligence was shown on the part of defendant. The .defendant is not responsible for any neglect on the part of Dr. Kasper. There was no evidence to go to the jury. The complaint should have been dismissed. (Pike v. Honsinger, 155 N. Y. 201; Mackenzie v. Carman, 103 App. Div. 246; Warner v. Packer, 139 App.

The certificates nominating Gitlow and Winitsky comply with the requirements of the Election Law. (People v. Cady, 143 N. Y. 100; Matter of McGrath, 189 App. Div. 140.) The petitioner has a clear legal right to the relief sought. (People ex rel. Sherwood v. Bd. of Canvassers, 129 N. Y. 360; Matter of Independent Nomination, 186 N. Y. 266.) The certificate of October 4, 1921, was not only irregular on its face, but was, in substance, wholly void.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 6, 1921, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The assessments, notices of tax sale and tax sale deeds which are the subject of this action comply with the requirements of law relating thereto and are absolutely valid.

individually and as executrix, et al., appellants. Colorado’s right to impose (and collect) its inheritance taxes is restricted to persons and property within its territorial limits.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 1, 1921, which reversed an order of Special Term granting a motion for an injunction pendente lite. The following questions were certified: “1. Does the complaint herein state facts sufficient to constitute a cause of action? 2.

<p>Mount Vernon (city of) — public streets — city ordinance prohibiting public meetings on street without permit of mayor — constitutional law — ordinance prohibiting public meetings on streets not unconstitutional as abridging liberty of speech — when a valid exercise of police power regulating the use of public streets — habeas corpus —if mandate directing arrest of person disobeying such ordinance is within jurisdiction of court writ of habeas corpus must be dismissed.</p> <p>1. The charter of the city of Mount Vernon, as amended (L. 1896, ch. 182, § 166, subds. 5, 60) provides that the common council shall have full power to prohibit the gathering or assembling of persons upon the public streets of said city, or congregating upon the corners of the streets thereof, and to make such general ordinances, by-laws and regulations not repugnant to the general .laws of this state, as they shall deem expedient for the good government of the city. In pursuance of the power thus given the following ordinance was passed: “ Section 21. The gathering or assembling of persons upon the public streets of the city, the holding of public meetings upon the public streets of the city, the congregating of persons in groups or crowds upon the public streets of the city, without special permit of the Mayor, to be granted in writing, under his hand and seal, is hereby prohibited.” The relators were arrested by the police of the city while addressing a meeting in the public streets without a permit from the mayor, in violation of this ordinance. After their arrest they were taken before a magistrate, and pending trial each -obtained a writ of habeas corpus. Held, that the legislature had the constitutional right to confer upon the common council of the city the power to enact ordinances regulating the use of public streets and the gathering or assembling of persons thereon; that the ordinance passed clearly came within the provisions of the charter and had the force and effect, within the corporate limits of the city, of a statute passed by the legislature itself, and is valid since it is a reasonable exercise of the police power over the public streets.</p> <p>2. A contention that an ordinance prohibiting public speaking in the public streets abridges liberty of speech, and is, therefore, unconstitutional, is not sustained either by reason or authority.</p> <p>3. A writ of habeas corpus cannot take the place or perform the functions of an appeal from a judgment of conviction. The court before which a person is brought under such writ simply inquires whether the court rendering the judgment had jurisdiction to do so. If that fact appears, and the mandate under which the defendant is held be regular upon its face, the writ must be dismissed. (State of Connecticut v. Coleman, 113 Atl. Rep. 385, overruled.)</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 16, 1921, which unanimously affirmed a decree of the Monroe County Surrogate’s Court construing the will and settling the accounts of the executors of James G. Ardrey, deceased.</p>

<p>Appeal from á judgment, entered July 8, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and granted said motion.</p> <p>The judgment on demurrer touching as it did a defect in pleading is not res adjudicata. (Hughes v. Blake, 1 Mason, 519; Greeley v. Smith, 1 Woost. & M. 181; Carmony v. Hooker, 5 Penn. St. 305; Wilbur v. Gilmore, 21 Pick. 253; Vanlandingham v. Ryan, 17 Ill. 26; Harding v. Hale, 2 Gray, 399; Cromwell v. County of Sac, 94 U. S. 551; Gilman v. Rives, 10 Pet. 298; Richardson v. Barton, 24 How. 188; Aurora City v. West, 7 Wall. 90.) The complaint states a cause of action. (Staples v. O’Neal, 64 Minn. 27; Pittsburgh Plate Co. v. Neuer Glass Co., 253 Fed. Rep. 161; Rainey Lumber Co. v. Schroeder Lumber Co., 237 Fed. Rep. 39; Becher v. Nat. Cloak Co., 128 App. Div. 423.)</p> <p>The former judgment recovered by the defendant in this action against the plaintiff herein is a bar to the maintenance of this action and judgment was properly rendered dismissing its complaint in this action upon the merits. (Bell v. Merrifield, 109 N. Y. 202; Dawley v. Brown, 79 N. Y. 390; Stowell v. Chamberlain, 60 N. Y. 272; Ship v. Friedenberg, 65 Misc. Rep. 308; Hirschbach v. Ketchum, 84 App. Div. 258; Royal Fish Co. v. Central Fish Co., 159 App. Div. 151; City of N. Y. v. N. Y. Railways Co., 193 N. Y. 543; United States v. C. & O. Land Co., 192 U. S. 358; Boyd v. Boyd, 53 App. Div. 160; Gould v. Evansville, 91 U. S. 533; Oklahoma v. Texas, 65 L. Ed. [U. S. S. C.] 475.) The pleadings show that the plaintiff has no cause of action owing to the indefiniteness of the alleged contract. (Cupples v. Lachner, 99 App. Div. 231; Hamilton Trust Co. v. Shevlin, 156 App. Div. 307; 215 N. Y. 735; Jackson v. Alpha, 122 App. Div. 345; United Press v. New York Press, 164 N. Y. 406; Lambert v. Hays, 136 App. Div. 574; Booth v. Milliken, 127 App. Div. 525; 194 N. Y. 553.)</p>

The claimant was, at the time of .the accident, engaged in a maritime employment, under a maritime contract, upon navigable waters; jurisdiction over all claims in such cases is reserved by the Constitution of the United States to the federal courts. (Stewart v. Knickerbocker Ice Company, 253 U. S. 149; Jensen v. Southern Pacific Company, 244 U. S. 205; The C. Vanderbilt, 86 Fed. Rep. 785; The Seguranca, 58 Fed. Rep. 908; The Gilbert Knapp, 37 Fed.

8, 1921, affirming an award of the state industrial commission made under the Workmen’s Compensation Law. The state industrial commission and the industrial commissioner were without jurisdiction to make the award appealed from. (Wozneak v. Buffalo Gas Co., 175 App. Div. 268.) It was proper to award compensation to the estate of George H. Terry, deceased, which was actually due to him in his lifetime. (Lindfors v. Wheeler, 187 App.

This is a proper case for the issue of a peremptory writ of mandamus if the relator is entitled to payment. (Matter of Freel, 148 N. Y. 165; People ex rel. Beck v. Coler, 34 App. Div. 167; People ex rel. Kings Co. Gas Co. v. Schieren, 89 Hun, 220; People ex rel. Rodgers v. Coler, 56 App. Div. 98, 102; 166 N. Y. 1; People ex rel. N. Y., N. H. & H. R. R. Co. v. Havemeyer, 16 Abb. Pr. [N. S.] 219; Snyder v. City of New York, ,74 App.

<p>Gas and electricity—under Public Service Commissions Law, as amended, a gas company has legal right to increase its rates and make same effective thirty days after filing new schedule with public service commission ■—■ rule applies equally to franchises and agreements made prior to or after enactment of statute — fact that proceeding for increase of rate is pending does not affect right.</p> <p>1. Under the statute as it now stands (Pub. Serv. Comm. Law, § 66, subd. 12) a gas company has the legal right to increase its rates and make the increase effective thirty days after filing with the commission its schedule of new rates. If complaint be filed with the</p> <p>' commission against the proposed increase, or if the commission itself sees fit to act without a complaint, then a hearing may be had before the public service commission as to the propriety of the proposed increase. At the conclusion of such proceeding the commission is clothed with power, if the new rate be found excessive, to annul or modify it according as the facts developed justify.</p> <p>2. The language of the statute is broad and comprehensive enough to cover all agreements or franchises, whether made or granted before or after its amendment, and the fact that a proceeding is pending, on application of the company for permission to increase its rates, does not in any way limit the application of the statute or prohibit a new rate being fixed by the company itself.</p>

The relator is a foreign corporation doing business in the state of New York. On or about March 5th, 1917, it executed a mortgage to the Central Trust Company of New York and one James N. Wallace as trustees, to secure the payment of certain bonds in the amount of $97,252,900. At the time of the execution of the mortgage there was advanced thereon the sum of $60,000,000.

It was an implied condition of the policy that the automobile should be operated only by persons legally competent to operate it. (Shipman v. Protected Home Circle, 174 N. Y. 398; Grand Legion v. Beaty, 8 L. R. [N. S.] 1124.) A contract which would permit the indemnification of a party for the consequence of committing a crime would be void as against public policy. (Wills v. N. E. Mut. Ins. Co., 191 Penn.

The moneys deposited with the warden were not public funds. (People ex rel. Nash v. Faulkner, 107 N. Y. 477; Obendorfer v. City of New York, 198 N. Y. 583.) A public officer who, as such, receives the money of private individuals, is not absolutely responsible therefor. He is responsible only for good faith and reasonable diligence. (People ex rel.

<p>Contract — master and servant — agreement delivered subject to approval, becomes effective when approved according to its terms — when agreement was that insurance company would pay agent for renewals up to certain date agent cannot recover for renewals after said date but before date of approval — evidence — when letters of general agent protesting against dismissal of subagent improperly received in action by sub-agent to recover on his contract.</p> <p>1. A contract entered into between the general agent and a sub-agent of an insurance company delivered subject to the condition that it should not take effect until approved by the company, when so approved becomes effective according to its terms, and where one of its terms was that the company would assume an obligation in respect of policies written before a certain date the subagent cannot recover thereon for policies written after the date mentioned but before the date of approval.</p> <p>2. Where by its terms the agreement was to continue “ so long as the said agent shall continue to work satisfactorily and exclusively for the company,” and thereafter the company notified the subagent that his services were not satisfactory and that the arrangement under the contract would be discontinued and in an action to recover on said contract the issue was whether the company’s dissatisfaction was genuine or feigned, letters written by the general agent, who was charged with no duty in the premises, protesting against the cancellation of the subagent’s contract were improperly received in evidence.</p>

The .court erred in holding as a matter of law that the first accident which resulted in the fall of Herbert Wagner was not the proximate cause of the plaintiff’s accident, and in refusing to submit to the jury the question of the defendant’s negligence in causing the first accident. (Gatin v. M. S. R. Co., 89 App. Div. 311; 181 N. Y. 515; Lehr v. Ry.

<p>Master and servant — negligence — injury to seaman on steamship caused by fall — when company owning ship liable to plaintiff for refusal of ship’s master to have injury examined and treated in hospital at first port entered by ship — unjustifiable assumption by ship’s master that plaintiff was feigning injury.</p> <p>Plaintiff while engaged in his work as a seaman upon a steamship owned by defendant fell from a mast, dislocated his shoulder and fractured a part of the humerus of his arm. The ship’s physician discovered and reduced the dislocation but failed to find the fracture although he suspected one. He told plaintiff that at the first port of call he would take him to a hospital and examine him by means of an X-ray. A few days later the ship reached a port where there was a hospital, at which it must be assumed that there was an X-ray instrument. Plaintiff requested to be sent ashore and the physician also desired it, but the ship’s master refused. The ship then sailed to various South American ports but nothing further was done except that the master personally made some tests of plaintiff’s arm and decided that there was no fracture and compelled plaintiff to work, some of a kind unsuited to his condition, notwithstanding his protests. Two months later the ship returned to New York and plaintiff was taken to a hospital where the fracture of his arm was discovered, and the injury largely relieved although the arm will never recover its strength. Held, that the ship’s master did more than rely upon the advice of the physician; that for reasons of his own he personally prevented plaintiff from receiving treatment in the hospital at the first port of call; that because of his personal inspection he reached the conclusion that plaintiff was feigning and compelled him to work; that he failed to exercise the reasonable prudence required of him and that there is evidence to sustain the decision of the jury that the interference of the ship’s master resulted in injury to plaintiff for which defendant is hable.</p>

Appeal irom a judgment entered February 18, 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 judgment in favor of defendants. The learned trial judge properly construed the agreement of November 25, 1914, and did not err in dismissing defendants’ counterclaim. (Eiseman & Co. v. Kugelman, 188 App.

<p>Appeal from a judgment, entered January 6, 1920, upon an order of the Appellate Division of the Supreme 'Pourt in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.</p> <p>The Appellate Division erred in reversing the judgment entered on the verdict. This was a case for the jury. (Newson v. N. Y. C. R. R. Co., 29 N. Y. 383; Eastland v. Clarke, 165 N. Y. 426; Baker v. Close, 204 N. Y. 92; Buhrens v. R. R. Co., 53 Hun, 571; 125 N. Y. 702; Van Ingen v. Jewish Hospital, 182 App. Div. 10; 227 N. Y. 665; Conway v. Naylor, 222 N. Y. 437; Edelstein v. C. I. & B. R. R. Co., 226 N. Y. 168; Knapp v. Barrett, 216 N. Y. 226.) The General Highway Traffic Law has not changed the rule of reasonable care. (Mark v. Fritsch, 195 N. Y. 282; Adolph v. C. P., N. & E. R. R. Co., 76 N. Y. 530; Kalb v. Redwood, 147 App. Div. 77; 207 N. Y. 739; Cox v. Paul, 175 N. Y. 328; Huntington v. Attrill, 146 U: S. 667; People v. Weinstock, 193 N. Y. 481; People v. Briggs, 193 N. Y. 457; Blanchard v. New Jersey Steamboat Co., 59 N. Y. 292; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Kelly v. New York State Rys., 207 N. Y. 342.)</p> <p>Plaintiff was guilty of contributory negligence. (Brillinger v. Ozias, 186 App. Div. 221; Woodward v. N. Y. R. R. Co., 164 N. Y. 658; 221 N. Y. 539; Maguire v. N. Y. R. R. Co., 186 App. Div. 66.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The burden is upon the plaintiff to show that the judgment in the case of Cimino v. McAleenan would have been reversed on appeal before he can recover against defendant herein.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 11, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The goods were legally sold and, therefore, not converted by defendants. (Webb v. Downs, 93 Minn. 457; Dayton v. Tillon, 1 Robt. 21; Baldinger v. Levine, 83 App. Div. 130, 132; Inden v. Sommers, 61 N. Y. Super. Ct. 177; Kirby v. Clapp, 15 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1921, which reversed an order of Special Term granting a motion by plaintiff for judgment on the pleadings and denied said motion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1921, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings. The following question was certified: Does the complaint herein state facts sufficient to constitute a cause of action.

The separation agreement here in question was void in that it was made while the parties were living together and in that they separated after and because of it. (Gilbert v. Gilbert, 26 N. Y. Supp. 30; Sunderlein v. Sunderlein, 123 App. Div. 421; Poillon v. Poillon, 49 App. Div. 341; Boyd v. Boyd, 130 App. Div. 161; Whitney v. Whitney, 4 App. Div. 597; France v. France, 38 Misc. Rep. 460; Winton v. Winton, 161 N. Y. Supp. 405; Maney v. Maney, 119 App.

The trial court erred in admitting evidence as to the commission of other alleged crimes and as to other immaterial transactions to the great prejudice and injury of the defendant in the minds of the jury. (People v. Van Aken, 217 N. Y. 532; People v. Follette, 164 App. Div. 272.) The court did not err in admitting evidence as to the commission of other crimes of similar nature, as they-were a part of a common scheme or plan embracing the commission of two or more crimes.

<p>(1) Murder in the first degree — When presence upon premises not CONCLUSIVE EVIDENCE OF CONTINUANCE IN COMMISSION OF CRIME OF BURGLARY.</p> <p>In cases of homicide committed in connection with crimes such as burglary, larceny or robbery, presence at the time of the homicide upon the premises, which were the scene of the original crime, or prior departure therefrom, has been regarded as an important circumstance in determining whether the original crime was still in process of commission. Presence upon the premises, however, is not conclusive evidence of a continuance in commission of the crime of burglary if it appears that as matter of fact such crime has been terminated before the homicide was committed.</p> <p>(2) Same — Whether commission of crime had been terminated question FOR THE JURY.</p> <p>Where, upon trial of an indictment for murder in the first degree, alleged to have been committed by defendant while attempting to escape from a store which he had broken into under circumstances which constituted the crime of burglary in the third degree, the evidence warrants the view that acts performed by the proprietor and his son in apprehending, searching and handcuffing the defendant were sufficient to constitute an arrest and that thereafter defendant performed no further acts in continuance of his original crime of burglary, it should not have been held, as matter of law, that the defendant was still engaged in the crime of burglary when the homicide occurred, but it should have been submitted to the jury to decide whether the commission of this crime had been terminated.</p> <p>(3) Same — Conviction secured on erroneous theory not sustained on CONJECTURE THAT IT WOULD HAVE FOLLOWED IE CORRECT THEORY HAD BEEN APPLIED.</p> <p>In a case involving a charge of murder in the first degree a conviction erroneously secured on one theory will not be sustained on the conjecture that it would have followed just the same if the correct theory had been applied, where the jury has not considered any such issue.</p> <p>(4) Same — Misconduct oe sheriff with jury.</p> <p>The taking by the sheriff to the jury, while in their deliberations, of the handcuffs defendant wore when the gun was discharged which caused the homicide, constituted serious and reprehensible misconduct.</p>

<p>(1) Mubder — Premeditation and intent. •</p> <p>Upon an appeal from a judgment of murder in the first degree the Court of Appeals must review all of the evidence and determine whether it is of such weight and sufficiency as to justify the judgment. It is not enough that there is some evidence of premeditation or of intent to kill, but it must be determined whether or not there is evidence of such weight as to justify the jury in determining that there was a premeditated design and intent to cause death.</p> <p>(2) Same — When evidence insufficient to prove premeditated design TO KIEL.</p> <p>Where defendant, a vicious and brutal man of quick temper, accustomed to punish severely a six-year-old child of himself and his wife, born before their marriage, made the child get up in the morning and when she refused to tell him why she had not obeyed him when he first called her, struck her, shook her and caught and held her by the throat until she had a spasm in which she died a short time thereafter, and the only evidence of defendant’s premeditation or intent to kill is to be gathered from the expert testimony' that the defendant’s hand must have been upon the child’s throat for some minutes and the statement of the defendant’s wife that at one time she heard him say to the deceased that, “If you don’t mind I will kill you yet,” the judgment must be reversed. While these bits of testimony may be some evidence to indicate premeditation and intent to kill, yet in view of all the circumstances they are not of sufficient weight to justify a finding of murder in the first degree, that is, a premeditated design to kill.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1920, which reversed a judgment of the Albany County Court, rendered upon a verdict convicting the defendants of the crime of robbery in the first degree and granting a new trial.</p>

<p>Appeal from a judgment, entered December 31, 1918, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint.</p> <p>The Appellate Division erred in reversing the judgment and order of the Trial Term and dismissing the complaint.. (Ubart v. B. & O. R. R. Co., 117 App. Div. 831; Persick v. Phila. & Reading Co., 182 App. Div. 291; Crowley v. Royal Exchange Shipping Co., 10 Daly, 409; 89 N. Y. 607; Johnson v. Adams Tobacco Co., 14 Hun, 89; Phila. & Reading Railway Co. v. Sherman, 230 Fed. Rep. 814; Borckman v. Terry Construction Co., 216 N. Y. 139; Faber v. City of New York, 213 N. Y. 411; Clancy v. N. Y., N. H. & Hart. R. R. Co., 201 N. Y. 235; Middleton v. Whitridge, 213 N. Y. 499; Junkerman v. Tilyou Realty Co., 213 N. Y. 404.) The evidence as to defendant’s negligence presented a question of fact for the jury. (Volkmar v. Manhattan Ry. Co., 134 N. Y. 418; Irish v. Union B. & P. Co., 103 App. Div. 45, 52; 183 N. Y. 508; Dean v. T. A. R. R. Co., 34 App. Div. 220; Faith v. N. Y., etc., R. R. Co., 109 App. Div. 222; 185 N. Y. 556; Barrett v. L. O., etc., Co., 174 N. Y. 310; Jenks v. Thompson, 179 N. Y. 20; Welle v. Celluloid Co., 175 N. Y. 401.)</p> <p>The Appellate Division was justified in finding that the plaintiff was not a bona fide resident of this state. This court cannot review its conclusion. (Meyer v. Clark, 45 N. Y. 288; Chapman v. Erie Ry. Co., 55 N. Y. 587; Matter of Newcomb, 192 N. Y. 238; Bagdon v. P. & R. Coal & Iron Co., 178 App. Div. 662; U. S. Trust Co. v. Hart, 150 App. Div. 413; 208 N. Y. 617; Matter of Lydig, 191 App. Div. 117; Matter of Nichols, 54 N. Y. 62; Phillips v. Lindley, 112 App. Div. 283; 188 N. Y. 606; Hislop v. Taafe, 141 App. Div. 40; Dupuy v. Wurtz, 53 N. Y. 556; Barker v. Cunard S. S. Co., 91 Hun, 496, 497; 157 N. Y. 693.) The case should not have been submitted to the jury on the question of liability, as the plaintiff failed to establish negligence on the part of the defendant. (O’Donnell v. P. & R. Coal & Iron Co., 249 Penn. St. 497.)</p>

<p>(1) MURDER m .THE FIRST DEGREE.</p> <p>Upon examination of the record on this appeal, held, that the facts show beyond reasonable doubt that defendant was guilty of murder in the first degree.</p> <p>-(2) Same — Sufficiency of evidence.</p> <p>It is the duty of this court in death cases to uphold the rights of the accused even in the absence of an exception, but we are also required to disregard errors which do not affect the substantial rights of the defendant. (Code Crim. Pro., §§ 528, 542.)</p> <p>(3) Same — Duty of district attorney to retain from overzealous ADVOCACY.</p> <p>While freedom of advocacy must not be held too strictly in check it must not exceed the bounds of ordinary decency and decorum. Even, in cases of clearest guilt, in death cases emphatically, it is the duty of the district attorney to refrain from overzealous advocacy.</p> <p>(4) Same — Unseemly and unsafe appeals to prejudices of jurors.</p> <p>Upon examination of the record in this case, held, that unseemly and unsafe appeals to the prejudices of the jurors were made by the district attorney, and if it were not for the convincing probability that the result was not affected we would enforce the rule against the improper examination of witnesses and abusive arguments resorted to only for the purpose of producing a conviction at all hazards.</p> <p>(5) Same — Improper evidence that deceased had seven children.</p> <p>Proof that decedent was the father of seven children, the youngest being a little girl of ten, was no proper part of the People’s case.</p> <p>(6) Same — Improper cross-examination as to criminal acts of DEFENDANT.</p> <p>Within proper bounds, cross-examination as to criminal acts of a witness is not objectionable, but a limit must be placed on the range of such questions. They may not be asked for the improper purpose of planting in the minds of the jury suspicion and distrust by insinuations that the defendant has falsely denied his guilt as to collateral matters. The district attorney may not in fairness multiply questions as to acts of collateral misconduct when no purpose is served except to prejudice the jurors. The discretion which courts possess to permit questions as to collateral acts to be put to a defendant in a criminal case for the purpose of impairing his credibility should be exercised with caution.</p> <p>(7) Same.</p> <p>The question, “How about a brooch that you stole up there and gave to Mrs. Gass?’’ is objectionable as being in the form of assertion rather than interrogation.</p> <p>(8) Same — Improper suggestion on trial that defendant should have CALLED A PREVIOUSLY CONVICTED ACCOMPLICE.</p> <p>A suggestion on the trial, by the prosecuting attorney, that defendant should have called, as a witness on the question of intent, an accomplice who had previously been convicted for murder in the first degree on the same charge as defendant, is fantastic. The proposed witness would be conclusively 'impeached by the record of his own conviction.</p> <p>(9) Same — Exception to remarks of counsel.</p> <p>An exception to remarks of counsel where no ruling was asked for or direction made by the court presents no question of law for review.</p> <p>(10) Same: — Improper statement by district attorney that he was NOT ALLOWED TO ACCEPT PLEA OF GUILTY IN SECOND DEGREE.</p> <p>A statement by the district attorney to the jury that he was not allowed to take from the defendant a plea of guilty in the second degree was improper.</p> <p>(11) Same — When ends of justice require affirmance despite error on TRIAL.</p> <p>Upon examination of the record, held, that no error which substantially affected the rights of defendant appears thereon and that it is inconceivable that the calmest and most dispassionate conduct on the part of the district attorney would have changed the result. The ends of justice, therefore, require an affirmance under section 542 of the Code of Criminal Procedure.</p>

Inconsistent findings must be resolved in appellants’ favor. (Whalen v. Stuart, 194 N. Y. 495.) The facts do not support the interlocutory judgment that plaintiffs are entitled to assert a trust. (Matter of Holland, 110 App. Div. 799.) The burden of proving that there was no fraud, influence or mistake, that the transaction was perfectly understood by plaintiffs and that a third and disinterested person advised plaintiffs of all their rights is upon defendants.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 21, 1921, which modified an order of Special Term by striking therefrom a provision awarding relator a peremptory writ of mandamus and substituting in place thereof a provision awarding relator an alternative writ of mandamus. The following questions were certified: “ 1.

-Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 24, 1920, which affirmed, on certiorari, the proceedings of the defendant in removing the relator from the office of chief of police of the city of Amsterdam.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 1921, which affirmed an order of Special Term overruling a demurrer to the first separate defense set up in the answer.

<p>Appeal from a judgment, entered April 12, 1920, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a verdict and directing judgment in favor of plaintiff.</p>

<p>Appeal from a judgment, entered April 13,1920, 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 the report of a referee and directing a dismissal of the complaint.</p>

<p>Appeal from a judgment, entered April 10,1918, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint.</p> <p>The commissioners of highways did not have authority to permit and- continue this very serious encroachment. (St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 113; Bliss v. Johnson, 94 N. Y. 241; Driggs v. Phillips, 103 N. Y. 77; Hughes v. M. E. R. Co., 130 N. Y. 26; Village of Olean, v. Steyner, 135 N. Y. 346; City of Cohoes v. D. & H. Canal Co., 134 N. Y. 397; Hughes v. Bingham, 135 N. Y. 354; People ex rel. Wooster v. Maher, 141 N. Y. 336; Wakeman v. Wilbur, 147 N. Y. 661; City of Buffalo v. D., L. & W. R. R. Co., 68 App. Div. 488; Knickerbocker Ice Company v. 42d St. R. R. Co., 85 App. Div. 540; Slattery v. McCaw, 44 Misc. Rep. 428; City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 96; City of N. Y. v. De Peyster, 120 App. Div. 765; Town of Brookhaven v. Dyett Sand-Lime Brick Co., 75 Misc. Rep. 314.)</p> <p>The legal conclusions drawn by the Appellate Division are proper. (Jorgensen v. Squires, 144 N. Y. 280; Babbage v. Powers, 130 N. Y. 281; People v. N. Y., N. H. & H. R. R. Co., 89 N. Y. 266; Weiss v. City of Mount Vernon, 157 App. Div. 383.) The subject-matter of this suit, viz., the regulation of public rights at an intersection of a railroad and a public highway is fully covered by statute, and the plaintiff should be left to that remedy. (Allen v. B., R. & P. R. Co., 151 N. Y. 434; Bryant v. Town of Randolph, 133 N. Y. 70; People v. N. Y., N. H. & H. R. R. Co., 89 N. Y. 266; Danner v. N. Y. & Harlem R. R. Co., 213 N. Y. 117.)</p>

The rule against splitting causes of action has no application to the case of a counterclaim interposed in a court of limited jurisdiction. (Gordon v. Van Cott, 38 App. Div. 564; Webster v. Armstrong, 1 C. & El. N. P. 471.) Not only the common law but also the statute supports plaintiffs’ contention.

The ladder which broke was supplied or furnished to, or provided for the use of, the plaintiff by the defendant. (Quigley v. Thatcher, 207 N. Y. 66; Connors v. Great Northern El. Co., 180 N. Y. 509; Hordern v. Salvation Army, 199 N. Y. 233; Dougherty v. Weeks, 126 App. Div. 786; Bill v. Expanded Metal Co., 60 App. Div. 470; Winterberg v. Seitz, 8 App. Div. 439; Hannigan v. Union Warehouse Co., 3 App.

The power to sell contained in the will of William Roberts upon a contingency which occurred, was directory; hence the deed made by his executors and his widow to the plaintiff conveyed a title free from the lien of the defendant’s judgment upon the shares of his sons, Charles and George. (McReady v. Mel. L. Ins. Co., 83 Hun, 526; 148 N. Y. 761; Walter v. Tompkins, 71 App. Div. 21; Van Colt v. Van Cott, 177 App. Div. 694; Comrie v. Kleman, 162 App.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 29, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The lienors had notice of the building loan mortgage. (Packard v. Sugerman, 31 Misc.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 27, 1920, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granted a new trial.</p> <p>Defendant cannot be held upon the theory of estoppel based upon negligence. (Knox v. Eden Musee Co., 148 N. Y. 441, 460; Peoples Trust Co. v. Smith, 215 N. Y. 492; Swan v. N. B. A. Co., 2 H. & C. 181; Bigelow on Estoppel, 713-715, § 10; F. & D. Co. v. Queens Co. Trust Co., 226 N. Y. 225.)</p> <p>Defendant conducted its business in respect to the issuing of the certificate of stock and as to keeping check upon its outstanding stock in a negligent and unskillful manner, and without due care and diligence, and is, therefore, answerable for the damage done to plaintiff. (Am. Ex. Nat. Bank v. Woodlawn Cemetery, 120 App. Div. 119; Titus v. R. R. Co., 61 N. Y. 237; Allen v. S. B. R. R. Co., 150 Mass. 200; Tomes v. P. B. R. R. Co., 39 Md. 36.) Defendant failed in its duty to exercise reasonable supervision over its employees. (Bruff v. Mali, 36 N. Y. 199; N. Y., N. H. & H. R. R. Co. v. Schuyler, 34 N. Y. 30; Ouderkirk v. Central Nat. Bank, 119 N. Y. 253; Cutting v. Marlor, 78 N. Y. 454.) Defendant’s neglect was in the transaction itself and was the proximate cause of the damage that resulted to plaintiff. (Allen v. S. B. R. R. Co., 150 Mass. 200; Havens v. Bank of Tarboro, 132 N. C. 214; N. Y., N. H. & H. R. R. Co. v. Schuyler, 34 N. Y. 30; Rockville Nat. Bank v. Citizens Gaslight Co., 72 Conn. 576; Cutting v. Marlor, 78 N. Y. 454.) Where the certificate contains apparently all the essentials of genuineness and is in fact signed with the genuine signatures of the corporation’s officers, it is an affirmation upon which the public has a right to rely that everything previously done in the issuance of such certificate has been rightly done, and defendant is estopped from denying the truth of these recitals. (Fifth Ave. Bank v. F. S. St. R. R. Co., 137 N. Y. 231; Holbrook v. N. J. Zinc Co., 57 N. Y. 616; W. M. R. R. Co. v. Franklin Bank, 60 Md. 36.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 6, 1921, which reversed an order of the Nassau County Surrogate’s Court assessing a transfer tax upon the estate of Gerard Beekman, deceased.</p> <p>The Beekman Family Association does not come within any of the provisions of section 221 of the Tax Law. (Matter of De Peyster, 210 N. Y. 216; People ex rel. Wall & H. St. R. Co. v. Miller, 181 N. Y. 328; Matter of McCormick, 216 N. Y. 100; Matter of Mergentime, 129 App. Div. 367; Matter of Loeb, 169 App. Div. 588; Matter of Shattuck, 193 N. Y. 446.)</p> <p>The Beekman Family Association is charitable, benevolent and public; it is not personal, private or selfish. Therefore, it is exempt from the transfer tax; and what is far more important, it cannot be dissolved and its property distributed among its members. (Ould v. Washington Hospital, 95 U. S. 303; Matter of De Peyster, 210 N. Y. 216; Matter of Rockefeller, 223 N. Y. 563; 177 App. Div. 786; Butterworth v. Keeler, 219 N. Y. 446; Matter of Cunningham, 206 N. Y. 601; Matter of Robinson, 203 N. Y. 380; Matter of Groot, 173 App. Div. 436; 226 N. Y. 576; Matter of MacDowell, 217 N. Y. 454; Dexter v. Harvard College, 176 Mass. 192; Darcy v. Kelley, 153 Mass. 433.)</p>

Appeals from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1921, directing the board of estimate and apportionment of the city of New York to make certain appropriations pursuant to the requisition of the transit commission for the salaries' and expenses of said commission. The applications for orders directing and requiring the board of estimate and apportionment to make the appropriations should have been denied.

Appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 15, 1919, which modified and affirmed as modified a judgment of Special Term determining the rights, in a sum due on a contract for highway construction, of several mechanics’ lienors and an assignee of moneys due and to become due on said contract.

The Workmen’s Compensation Law does not apply, for the reason that the injury which resulted in Tallon’s death did not arise “ out of and in the course of ” his employment. (Matter of Kowalek v. N. Y. Cons. Ry., 229 N. Y. 489; Pierson v. Interborough R. T. Co., 102 Misc. Rep. 130; 184 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court ■ in the third judicial department, entered July 8, 1921, unanimously affirming an award of the State Industrial Commission, made under the Workmen’s Compensation Law. The claimant’s injury did not arise out of his employment. (Heidemann v. American District Telegraph Co., 230 N. Y. 305; 193 App. Div. 402; Matter of Kowalek v. N. Y. Cons. Ry.

<p>(1) Penalties — Workmen’s Compensation Law — Intent op legislature in prescribing penalties for violation.</p> <p>Where the statute creates a new offense hy making that unlawful which was lawful before, and prescribes a particular penalty and mode of proceeding, that penalty alone can be enforced. This rule, however, is deemed to be expressive of legislative intent and gives way to words and provisions indicating that other or additional penalties may also be enforced. It is always a question of legislative intent.</p> <p>(2) Same.</p> <p>The legislature by the enactments and provisions of the Workmen’s Compensation Law (Cons. Laws, ch. 67) prescribed three consequences as the effect of a failure to secure payment of compensation as required by section 50 thereof. 1. The recovery of a penalty to be sued for by the commission. 2. The striking out of certain defenses known to the common law in an action to be brought by the injured employee. 3. Prosecution as for a misdemeanor, and upon conviction the punishment of a fine or imprisonment, as provided in section 1937 of the Penal Law.</p> <p>(3) Same — Prosecution por misdemeanor on charge op failure to SECURE COMPENSATION TO EMPLOYEE PROPER.</p> <p>The provision of section 52 reading, "and have the effect of enabling the injured employee, * * * to maintain an action for damages in the courts, as prescribed by section 11 of this chapter,” is not the sole punishment, penalty or penal discipline for the misdemeanor created by that section, but such misdemeanor is punishable under the provisions of section 1937 of the Penal Law.</p> <p>(4) Same — On conviction motion in arrest op judgment on ground THAT DEPENDANT WAS NOT AMENABLE TO CRIMINAL PROSECUTION IMPROPERLY GRANTED.</p> <p>Where a defendant charged with the crime of failure to secure compensation to an employee, in violation of the statute, is found guilty as charged, a motion in arrest of judgment upon the ground that the defendant was not amenable to prosecution in the courts of criminal jurisdiction is improperly granted.</p>

<p>Negligence — railroad — injury to person attempting to cross street ahead of railroad train running through street — contributory negligence of injured person.</p> <p>1. A traveler before crossing a. railroad track on a public highway is bound to look and listen for the approach of trains and if he omits to do so and suffers injury there can be no recovery therefor.</p> <p>2. Where plaintiff’s intestate was struck and killed by a train moving upon the tracks of a railroad running through a public street while he was attempting to cross the street and the evidence shows that he could have seen the approaching train, as he came out of a building, for a distance of several hundred feet if he had then looked with any care or if he had looked again before crossing the railroad tracks, but that he did not look after leaving the building, going from seventeen to thirty-one feet before reaching the track, his act was not that of a careful and prudent man and he was guilty of such negligence and carelessness as constitute at law contributory negligence and bar a recovery.</p>

<p>Benefit association — labor unions —• provision in constitution that benefit shall be paid only to designated beneficiary,a widow, minor children or dependent relative upon application within one year of death of member, valid — when administratrix of deceased member without authority to make application.</p> <p>Where the constitution of a labor union provides for a death benefit, but requires that the benefit be paid only to a designated beneficiary, a widow, minor child or dependent relative, and that application in writing shall be made by such an applicant within one year after the death of such member, if there is no designated beneficiary and no relative to make the application it follows that it cannot be made within one year next after the death of the member and that all claim and right to such benefit shall, as further provided in said constitution, thereupon wholly cease and determine. The parties had a right to make this agreement and thus to construe the constitution of the union does not shock the conscience nor call upon the courts to enlarge simple language to make a more .advantageous contract for the members. An administratrix, therefore, of a member who designated no beneficiary and died unmarried and childless, without leaving a dependent relative, had no authority under the contract to make application for the benefit.</p>

The findings of fact, namely: “ The notes in suit were given, not as- evidence of an indebtedness of a fixed amount, but were given with the distinct understanding that the amount was to be fixed after an investigation into the bona fides of the bills rendered and were subject to all the defenses and claims against the notes; ” “ the Thompson-Starrett Company negotiated the notes in suit in breach of faith; ” “ the negotiation of the notes in suit was a fraud on the rights…

<p>(1) Assault — When consent of child under sixteen no defense for assault on proof of lecherous handling by defendant.</p> <p>Acts consisting of indecent familiarities, not amounting to sexual intercourse, or an attempt to have sexual intercourse, upon the person of a girl in her fifteenth year with her consent constitute the crime of assault in the third degree.</p> <p>(2) Same — Impairment of morals of child a misdemeanor.</p> <p>An act tending to impair the morals of a child under the age of sixteen years is a misdemeanor and consent of the child is no defense thereto.</p> <p>(3) Same.</p> <p>Nor does the fact that the impairment of a child’s morals is an independent offense preclude a prosecution for an assault in the third degree where the child, a consenting party, is debauched by means of lecherous handling by the defendant.</p>

The city of New York is authorized by statute to operate a railroad on the Williamsburg bridge, and the connecting track, with the cross-over involved herein, is a mere incident thereto. (City of New York v. Brooklyn City R. R. Co., 115 Misc. Rep. 94; Schinzel v. Best, 45 Misc. Rep. 455; 109 App. Div. 917; People ex rel. McCarthy v. Shea, 51 App. Div. 227; 164 N. Y, 573; Gordon v. Strong, 3 App.

The defendant, under the terms of the covenant contained in the lease, was not obligated to pay and discharge those taxes which did not become due and payable, or a lien upon the premises, during the continuance of his lease. (Ward v. Union Trust Co., 224 N. Y. 73; Morris v. Suerken, 88 Misc. Rep. 262.) The lessee’s covenant was to pay when due and payable or sixty days thereafter every tax assessed or imposed upon the premises during the term.

Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the-first judicial department, entered November 7, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The trial court erred first, in admitting the testimony of the second accident and injury; second, in its charge to the jury on the question of damages.

<p>Appeal, in each of the above-entitled actions, from a judgment entered July 13, 1921, 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. The first action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second action, brought by the mother of the plaintiff in the first, was to recover for loss of services resulting from his injuries.</p> <p>The trial court properly submitted to the jury the questions of defendant’s duty to keep the areaway in a reasonably safe condition and whether he negligently failed to do so, and there was ample evidence to support the verdict of the jury in favor of plaintiff. (People v. Davis, 231 N. Y. 60; Boyles v. Blankenhorn, 220 N. Y. 624; Shaefer v. Houck, 183 App. Div. 283; 1 McAdam on Landlord & Tenant [4th ed.], 284, 291; Doyle v. Lord, 64 N. Y. 432; Stevens v. Taylor, 111 App. Div. 561; Canavan v. Stuyvesant, 7 Misc. Rep. 113; Berras v. Keane, 191 App. Div. 947; 231 N. Y. 566; Schmidt v. Cook, 12 Misc. Rep. 449; Mashkin v. Childs, 146 App. Div. 174; Clarke v. Welsh, 93 App. Div. 393; Loucks v. Dolan, 211 N. Y. 237.)</p> <p>The defendant was not in duty bound to keep in repair the areaway in the yard of premises such as are here presented. (Jaffe v. Harteau, 56 N. Y. 398; Frank v. Mandel, 76 App. Div. 416; Schick v. Fleischauer, 26 App. Div. 210; Rushes v. Ginsberg, 99 App. Div. 417; Tallman v. Murphy, 120 N. Y. 345; Dollard v. Roberts, 130 N. Y. 273; O’Dwyer v. O’Brien, 13 App. Div. 570; Walsh v. Frey, 116 App. Div. 527; Schroech v. Bliss, 46 App. Div. 502; Margolius v. Uldberg, 88 N. Y. Supp. 1048; Endig Co. v. Cook, 91 N. Y. Supp. 745; Finkelstein v. Shlanowsky, 76 Misc. Rep. 500.) The defendant was under no duty of any kind to the plaintiff with respect to the condition of the rear yard or the coping around the areaway other than to refrain from committing any intentional, willful or negligent affirmative act calculated to injure him. (Vaughan v. Transit Development Co., 222 N. Y. 79; Fox v. Warner-Quinlan A. Co., 204 N. Y. 240; Cusick v. Adams, 115 N. Y. 55; Nicholson v. Erie R. Co., 41 N. Y. 525; Birch v. City of New York, 190 N. Y. 397; Victory v. Baker, 67 N. Y. 366; Larmore v. C. P. I. Co., 101 N. Y. 391; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Steiger v. Van Sicklen, 132 N. Y. 499.) This yard was not provided for use by the children as a place for them to play and the defendant should not be held liable for an injury resulting from such unauthorized use. (Strobel v. Liebmann, 197 N. Y. 348; McAlpin v. Powell, 70 N. Y. 126; Miller v. Woodhead, 104 N. Y. 471; Mayer v. Laux, 18 Misc. Rep. 671.)</p>

Claimant’s son, a boy sixteen years of age, receiving a salary of eleven dollars weekly, while engaged in the duties of his employment received injuries from which he died. There was evidence that he also received three or four dollars a week in tips. It appeared that he turned over his earnings to his mother, she returning to him one dollar each week day and fifty cents on Sundays besides furnishing him with his board, lodging and clothing.

This action was brought by plaintiff to compel the determination of the claim made by the defendants to an easement of light, air and prospect over plaintiff’s land, which defendants claim by virtue of a certain restrictive covenant contained in a recorded instrument which purports to limit the use and enjoyment by the plaintiff of the land owned by it and described in the complaint.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 6, 1920, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial. Plaintiff deposited with defendants (stockbrokers) certain shares of stock as security for a margin account. Defendants repledged all of the stock for an amount largely in excess of plaintiff’s indebtedness, the stock was sold by the pledgees and defendants went into bankruptcy. Plaintiff contended and the Appellate Division held that the conversion of the stock by the unauthorized repledge was a willful and malicious injury to property which survived the discharge in bankruptcy.</p>

Plaintiffs contracted to guarantee payment for merchandise shipped by defendant upon orders of one Luneschloss, it being agreed, however, that should any of the customers of Luneschloss “ refuse, reject or return the merchandise,” the defendant should credit or repay to the plaintiffs the amount of said merchandise, or that the plaintiffs might deduct the amount from any succeeding settlement.

The complaint alleged that while plaintiff was employed as third assistant engineer on a boat owned or operated by the defendant and was performing his duties, without fault on his part, and while he was in the act of placing an iron bar in between the drive wheels of the engine, in order to pry it into position, the bar slipped due to its defective, worn out, blunt and unseaworthy condition, as a result of which it struck the plaintiff and caused the injuries complained of.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April . 8, 1921, which affirmed an order of Special Term granting a motion for an injunction pendente lite. The complaint alleged that prior to October 25, 1919, the plaintiff Murrin owned a lease of a coal property known as the Edgerton lease, the property comprising about 2,300 acres situated in the anthracite region of Pennsylvania.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1920, which reversed in part an order of Special Term and granted a motion by plaintiff substituting the administrators with the wills annexed of John W. Gates and Charles G. Gates, deceased, in place and stead of Dellora R. Gates, as executrix under the wills of said John W. and Charles G. Gates, deceased, said executrix having deceased.

<p>Crimes — murder — evidence — contradictions and uncertainties in narratives of witnesses — new trial.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1921, which affirmed an order of Special Term vacating a prior order appointing a temporary receiver of the defendant’s property, and directed him to restore to the defendant all of the assets and property of the defendant in his hands, but gave him permission to apply to the court for compensation to be paid by plaintiffs.

Court of Special Sessions of the city of New York rendered upon a verdict convicting the defendant of the crime of making and having in his possession burglar’s tools in violation of section 408 of the Penal Law.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1921, which reversed an order of Special Term disallowing the claim of the respondent herein. The claim of the government is_upon a recognizance for the appearance of a defendant for trial in a criminal prosecution in the federal court. The defendant did not appear.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1921, which affirmed an interlocutory judgment entered upon a decision of the court at Special Term construing a trust deed made as a marriage settlement and providing for the payment of the income to the intended wife of the maker during her lifetime.

The action was brought to recover for breach of an alleged contract of sale. The Appellate Division reversed a judgment in favor of plaintiff on the ground that the contract was entered into by defendant as agent for an undisclosed principal and that evidence bearing upon the election of plaintiff’s assignor to hold the defendant’s principal thereupon rather than defendant himself should have been admitted.

The action was by minority stockholders of the St. Joseph Lead Company, a domestic corporation, in the right of the corporation, against two of its directors, and the executors of a deceased director, for an accounting for property and funds of the corporation used ultra vires through their alleged neglect and failure to perform their duties as directors and through alleged violations of law by them as officers and directors of the company.

The action was to recover damages for breach of a contract under which plaintiff was to manufacture and deliver to the defendant 50,000 feet of ash lumber of a particular quality, cut in a special manner, in special sizes. The lumber was to be twenty-five per cent suitable for aeroplane work.

Plaintiff sued as trustee in bankruptcy of the corporation known as Joseph Meyer & Co., Inc. The complaint in effect alleged that one Joseph Meyer, the president and treasurer of the corporation, was authorized to sign checks against the funds of the corporation for the purpose of its business, but in violation of his trust and duty as trustee of the assets of the corporation and in derogation of the rights of the creditors of the said corporation, while said corporation was…

the single-track portion of what is known as defendant’s Tuckahoe line, and the other car being operated in • an easterly direction along the same line from Yonkers towards Tuckahoe by one Rutledge, who was also working in defendant’s employ as a motorman.

Supreme Court in the first judicial department, entered July 22, 1920, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial upon the ground that the verdict in favor of plaintiff was inadequate. The action was to recover commissions alleged to have been earned by plaintiff on the gross amount of contracts procured by the plaintiff for the defendant from the British government for the manufacture of shells.

Plaintiff.as the trustee in bankruptcy of the Edward G. Dann Corporation brought this suit against the defendant to recover upon a promissory note which is as follows: “ $3500.00 • New York, March 2, 1916. “ Three months after date I promise to pay to the order of Edward G. Dann Corporation Three Thousand Five Hundred Dollars at Coal & Iron National Bank, N. Y. City.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 8, 1921, 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 first judicial department, entered July 1, 1921, which affirmed an order of Special Term denying a motion for punishment of the respondent herein as and for a contempt in refusing to be sworn as a witness before a duly appointed subcommittee of a state legislative committee appointed to investigate the affairs of the city of New York. The subcommittee consisted of but one member.

Claimant was a seamstress who worked in the plant of her employer. While entering the lower hall of the building she stepped upon a piece of coal, slipped and fell to the floor, and sustained various injuries for which an award was made.

<p>Appeal" from a judgment of the Supreme Court, rendered June 16, 1921, at a Trial Term for the county of Chautauqua upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

Intestate, while crossing Central Park West at One Hundred and Ninth street in the city of New York at about eleven-thirty at night was struck by one of defendant’s cars and killed. Plaintiff alleged that the motorman gave no warning of the car’s approach nor did the car slow up at all up to the time it struck the intestate. Defendant contended that the intestate was guilty of contributory negligence.

This action was brought to recover railway charges made in accordance with tariff rates duly published, posted and filed, for services in handling out-bound and in-bound freight in less than carload lots, and for transporting the same in ferry cars between the freight yards of the plaintiff and the mill yard of the defendant, both situate in the village of Schuylerville.

The action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff while employed by defendant Franklin Simon’s firm, caused by her falling down a stairway in a building, parts of which were occupied by said firm in conducting their business and owned by the defendant J. J. Steindler Company.

This action was brought for and resulted in a determination that certain parcels of real estate are held in the names of the defendant Evangeline A. French, bankrupt’s wife, and the defendant Theodore L. French, bankrupt’s brother, in fraud of the creditors of said bankrupt and of his trustee in bankruptcy, and that said property in equity passes to plaintiff for the purpose of the payment of the debts of the bankrupt.