Volume 233 — New York Reports

<p>Constitutional law — State Constitution (Art.. 3, § 28) prohibiting legislature and other legislative bodies from granting extra compensation to public officers, servants, agents and contractors — invalidity of chapter 459 of Laws of 1919, authorising Court of Claims to hear and determine claims of highway contractors and make awards for increased costs of highways constructed since beginning of late war.</p> <p>1. By the State Constitution (Art. 3, § 28) which provides that “ The legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor,” the legislature is inhibited from appropriating any money based upon gratitude and charity so far as its officers, servants, agents and contractors are concerned. The legislature, thus prohibited from recognizing claims founded on gratitude and charity, is powerless to indirectly provide a means of determining such claims, provide for the entry of judgment thereon against the state and to subsequently appropriate moneys to pay the judgment.</p> <p>2. Chapter 459 of the Laws of 1919 which authorizes the termination of certain contracts for the construction of state highways, called “ war contracts,” entered into before April 6, 1917, the date of the declaration of war between the United States of America and the Imperial German Government, and confers jurisdiction upon the Court of Claims to hear and determine claims and make awards for increased costs incurred in the completion of such contracts, is invalid in its entirety for the reason that its purpose and effect is to grant to contractors extra compensation and is, therefore, within the prohibition of the Constitution (Art. 3, § 28). The fact that the Court of Claims is authorized to hear and determine such claims does not render the statute valid. Payment of judgments rendered by that court are provided for by appropriation of the funds of the state and a judgment in favor of a claimant for increased cost of labor and material in excess of the amount to be paid in such a contract would clearly fall within the term “ extra compensation.”</p>

■ Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 17, 1921, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law. The homicide did not arise out of the employment. The hazard of being murdered on account of either unrequited love or a refusal to “go out ” with a man cannot be recognized as a particular hazard of a waitress’ employment.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 27, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The complaint should have been dismissed because it failed to allege or establish facts sufficient to constitute a cause of action.(Brackett v. Griswold, 112 N. Y. 454; McNeil v. Cobb, 186 App. Div. 177; Kushes v. Ginsberg, 99 App. Div. 417; 188 N. Y. 630; Renard v. Grenthal, 81 Misc. Rep. 135; Fairchild v. Leo, 149 App. Div. 31; Pagnillo v. Mack Paving & Construction Co., 142 App. Div. 491; Golob v. Pasinsky, 178 N. Y. 458; Witty v. Matthews, 52 N. Y. 512; Bartzel v. Rhinelander, 179 App. Div. 735; Elefante v. Pizitz, 182 App. Div. 819, 821; 230 N. Y. 567.)</p> <p>The motion to dismiss the complaint was properly denied. (Queeney v. Willie, 225 N. Y. 374; Frank v. Simon, 109 App. Div. 38; Harris v. Boardman, 68 App. Div. 436; Pincus v. Schlecter, 167 App. Div. 361; Drucker v. Cohen, 159 N. Y. Supp. 693; Nutter v. Colyer, 180 Mich. 107; Fleischer v. Dworsky, 90 Misc. Rep. 628; Tauber v. Rochelsky, 90 Misc. Rep. 382; Rich v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 382; Burch v. Int. R. T. Co. 187 N. Y. 388; Barrett v. L. O. B. Imp. Co., 174 N. Y. 310; Athorf v. Wolfe, 22 N. Y. 355; Van Pelt v. De Graw, 4 N. Y. 100.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 1, 1921, which reversed an order of Special Term sustaining a demurrer to the complaint and overruled said demurrer. The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ” This action is not brought by the real party in interest. (Code Civ.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1921, which unanimously affirmed an order of Special Term granting a motion by plaintiff for judgment on the pleadings.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 24, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

The court’s charge was gravely prejudicial, in that in effect it instructed the jury that if they considered that the driver of the plaintiff’s taxicab would be liable to favor the plaintiff’s side, they might assume that had he been called his testimony would have been adverse to the plaintiff. (Stickney v. Ward, 21 Misc. Rep. 449; Neale v. Nassau El. R. R. Co., 161 App. Div. 95; Minch v. N. Y. & Q. C. R. R. Co., 80 App. Div. 324; Sugarman v. Brengel, 68 App.

The service charge is not rent of a gas meter within the meaning of section 66 of the Transportation Corporations Law. (People v. Briggs, 193 N. Y. 457; Jones v. Richmond Gas Co., 7 App. Div. 465; Matter of De Camp, 19 App. Div. 564.) The public service commission had authority and jurisdiction to order the service charge. (Texas P. R. Co. v. Abilene Cotton Oil Co., 204 U. S. 553; Pennsylvania R. Co. v. Puritan Coal Co., 237 U. S. 121, 131; Murray v. New York Tel.

. The right of action accrued when the breach occurred. No tender of performance was required, for defendants’ conduct waived such ténder.' (Nichols v. Scranton Steel Co., 137 N. Y. 471, 485; Stokes v. Mackay, 147 N. Y. 223; Riendeau v. Bullock, 147 N. Y. 269; Smith v. Wetmore, 167 N. Y. 234; Brinley v. Nevins, 162 App. Div. 744; Reid v. America Co., 136 N. Y. Supp. 75.) The alleged rescission was a breach. It was never recognized by plaintiff. (Powell v. Linde Co., 29 Misc.

<p>Appeal from a judgment of the Queens County Court, rendered May 27,1921, upon a verdict convicting the defendant of the crime of murder in the first degree.</p>

• Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1921, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The other lot owners have a right of action against the owner of the lot in question by reason of the violations of the restrictive agreement.

Appellants not only established their case by sufficient testimony, by the letter and telegrams concededly sent by defendant’s cashier, but their evidence was of such a character that it created an estoppel against respondent, since the jury found, by its verdict, that appellants relied upon said statements and acted upon them.

Title to the oil did not pass upon its production. Further acts of appropriation with the assent of both seller and purchaser were necessary to pass title to the respondent and these acts of appropriation are lacking.

■ Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 18, 1921, in favor of plaintiff upon the submission of a controversy' under section 1279 of the Code of Civil Procedure. The opinion of the Appellate Division discloses that the facts set forth in. the submitted case were regarded by the court as merely evidentiary.

Appeal, by permission, from an order of the Appellate Division of the. Supreme Court in the third judicial department, entered February 28, 1921, which dismissed a writ of certiorari and confirmed a determination of the public service commission directing the relator to extend its tracks to connect with the Lehigh Valley Railroad Company at Batavia.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 7,1921, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

<p>Negligence —■ master and servant — general and special employer — action to recover for death caused by motor truck hired by express company from owner who cared for truck and selected and paid driver — driver not special servant of express company and company not liable for his negligence.</p> <p>1. It is the rule that as long as an employee is furthering the business of bis general employer by service rendered to another, there will be no inference of a new relation unless command has been surrendered, and no inference of its surrender from the mere fact of its division.</p> <p>2. Where the owner of a trucking business supplied defendant, an express company, with a motor van and a chauffeur at a fixed rate per hour, the defendant loading the van at its station and unloading it at the railroad terminal, the van being sealed by the defendant at the point of departure and unsealed at the point of destination, and, between departure and destination, the truck remained without interference or supervision in charge of the chauffeur, and while so engaged the truck, through the undisputed negligence of the driver, struck and killed the plaintiff’s son, the defendant is not liable therefor. From the time the truck left the point of departure until it reached its destination the truck and driver were in the service of the owner thereof as the general employer, and the duty of going carefully for the safety of the van as well as for that of wayfarers remained a duty which the driver owed to the master at whose hands he had received possession of the van. Neither the contract nor its performance shows a change of control so radical as to disturb that duty or its incidence.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1922, which reversed an order of Special Term denying a motion for an order directing the property clerk of the police department of the city of New York to return forty-six barrels of wine and granted said motion.</p>

<p>Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 19, 1921, which unanimously affirmed an order of the Erie County Surrogate’s Couit assessing a transfer tax upon the estate of Frances B. Le Fevre, deceased.</p> <p>The bequest in Mrs. Le Fevre’s will to the Children’s Home, a charitable corporation which the will directs to be incorporated, is not subject to the transfer tax. (Matter of Graves, 171 N. Y. 40.) The portion of the investments bequeathed to the Children’s Home is exempt from the additional tax of five per cent. (People ex rel. Andrews v. Cameron, 140 App. Div. 76; 200 N. Y. 584; Matter of Watson, 226 N. Y. 384; Matter of Zimmerman, 110 Misc. Rep. 295; Matter of Kolb, 114 Misc. Rep. 361; Matter of Washbourne, 180 N. Y. Supp. 507; 190 App. Div. 940; 229 N. Y. 518.)</p> <p>The remainder bequeathed to the Children’s Home, to be incorporated at some future date, is taxable until such corporation, exempt from taxation under the Transfer Tax Law, is formed. (Matter of Rockefeller, 177 App. Div. 786; Matter of Cash’s Estate, 187 N. Y. 246.) No deduction should be made in the additional tax of five per cent on account of the bequest to the Children's Home (to be incorporated). (Matter of Watson, 226 N. Y. 384; Matter of Kean, 108 Misc. Rep. 538.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 25, 1921, affirming a judgment in favor of plaintiff entered upon a verdict. The verdict was joint and indivisible; the order setting it aside as to the defendants Warner set it aside also as to the appellant, and the judgment appealed from is unsupported by any verdict or finding of fact and is a nullity.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 16, 1920, unanimously affirming a judgment in favor of defendant entered upon a verdict. The incompetent evidence of the price obtained at private sale of the property converted by the defendant cannot be disregarded under section 1317 of the Code of Civil Procedure. The error was substantial.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 22, 1921, which unanimously affirmed an order of Special Term granting a motion by the purchaser at a judicial sale to be relieved from his purchase. Contingent remaindermen are not necessary parties defendant in an action for dower. (N. Y. Security Co. v. Schoenberg, 87 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 24, 1921, which unanimously affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the reinstatement of the relator in the position of engineering inspector in the department of street cleaning. There can be no doubt of the abolition of relator’s position.

The state furnished erroneous and misleading data upon which the claimant relied and under the particular circumstances in this case had a right to rely in making its bid.

Claimant is not entitled to recover as matter of law any sum for damages alleged to have been sustained by it prior to the execution of the contract by the state. (Cons. Laws, ch. 25, § 130.) Even had claimant possessed any valid demand against the state for damages in consequence of the delay in the execution of the contract, it waived such demand by accepting the contract after its execution and proceeding with the performance thereof. (Sandstrom v. State, 159 App.

The outer walls of the premises occupied by the plaintiff were not reserved to the landlord under the lease of May 14, 1915, and were, therefore, included in the premises let to plaintiff. (Baldwin v. Morgan, 43 Hun, 355; City of New York v. I. R. T. Co., 125 App.

The complaint alleges facts sufficient to constitute a cause of action for which the plaintiff has not any adequate remedy at law. (McManus v. Durant, 168 App. Div. 643; Strong v. Repide, 213 U. S. 419; Selwyn & Co. v. Waller, 212 N. Y. 507; Von Au v. Magenheimer, 126 App. Div. 257; 196 N. Y. 510; American Sugar Refining Co. v. Fancher, 145 N. Y. 552; Hammond v. Pennock, 61 N. Y. 145; Schafuss v. Betts, 94 Misc. Rep. 463; 175 App.

The legislature intended in enacting subdivision 7 (section 15 of the Compensation Law), that the insurance carrier shall pay to the state treasurer for every case of injury causing death in which there is no person of those enumerated in subdivisions 2, 3 and 4 of section 16 surviving the deceased the stun of $100.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 20, 1921, which reversed an order of the Monroe County Surrogate’s Court assessing a transfer tax upon the estate of Edmund Lyon, deceased, and remitted the matter to said Surrogate’s Court for further proceedings.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 19, 1921, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings. The following questions were certified: “ 1.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 20, 1921, which affirmed an order of Special Term denying a motion to vacate the service of a summons. The defendant in selling its cars at Detroit to dealers of New York state, who in turn sold the cars at their own terms and at their own risk, was not by reason of said facts doing business in New York state.

It was error for the court to deny defendant’s motion for a dismissal of the cause of action for false imprisonment, made at the close of plaintiff’s case, and also at the close of the evidence. (Swart v. Rickard, 148 N. Y. 264; Gardner v. Bain, 5 Lans. 256; Tobin v. Bell, 73 App. Div. 41; Gilbert v. Satterlee, 43 Misc.

<p>Negligence — contributory negligence — rule as to risks which may be taken to protect property without imputation of negligence — when owner of automobile, injured while attempting to prevent truck from colliding with his car, standing in street, not guilty of contributory negligence.</p> <p>1. While more risks may be taken to protect life than to protect property without involving the imputation of negligence, it is the rule that a reasonable effort may be made in the latter case, but each case must depend upon its own peculiar facts.</p> <p>2. Plaintiff’s automobile was parked at the side of a narrow street. A chauffeur driving a large truck owned by defendant tried to turn it around opposite plaintiff’s car but because the grade was steep he could not control the truck and a collision with plaintiff’s car seemed inevitable. Plaintiff, while trying with the help of an employee of defendant to help the chauffeur by seizing the bumper of the truck and attempting to guide it, was caught between the hub of the truck and his own car and was seriously injured. Held, that it was error for the Appellate Division to reverse a judgment against the owner of the truck in favor of plaintiff and dismiss the complaint upon the ground that he was guilty of contributory negligence. It was a question of fact for the jury whether, under all the circumstances, what was done by plaintiff was or was not reasonable.</p>

Division of the Supreme Court in the fourth judicial department, entered December 14, 1920, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The performance of services or any other act which have a money value ascertainable with reasonable exactness is not sufficient ground -for the enforcement in equity of any oral contract for the conveyance of an interest in lands, in the face of the Statute of Frauds. (Ludwig v. Baurgarten, 48 App.

Appeal, by permission, from a judgment entered January 21, 1921, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a determination of the Appellate Term, reversing a judgment of the City Court of the city of New York in favor of plaintiffs entered upon a verdict directed by the court and affirmed said City Court judgment.

<p>Negligence — action by executrix and sole legatee to recover for death caused by negligence of defendant, her attorney being employed on contingent basis — settlement with widow of decedent by defendant — when executrix may maintain action notwithstanding release by decedent’s widow and retain one-half of recovery for compensation for her attorney.</p> <p>Plaintiff’s testator was killed while working in the service of the defendant herein, leaving a wife but no children. His mother, his sole legatee and the executrix of his will, retained a lawyer to bring suit under the statute (Decedent Estate Law [Cons. Laws, eh. 13], § 120) against the railroad for causing her son’s death, the retainer being on a contingent basis, the lawyer to receive one-half of the proceeds in the event of a trial and one-third in the event of a settlement before trial. He served a complaint which the defendant answered. Thereafter the defendant paid a certain amount to decedent’s widow and obtained a release and in a supplemental answer pleaded the release in bar. Upon the trial, the judge instructed the jury, if they found the defendant negligent, to assess the damages as if no release had been given. The jury found a verdict for plaintiff. Thereafter, in an accounting in Surrogate’s Court a decree was made fixing the fees and expenses of the attorney at a certain amount and the funeral expenses at a designated sum. On proof of this decree an order was made reducing the verdict to the aggregate amounts allowed by the Surrogate’s Court for which judgment was entered, with costs. From that judgment and the decree of the surrogate an appeal was taken to the Appellate Division where both judgment and decree were modified, the ruling being that the limit of the attorney’s compensation was the taxable costs and one-half of the sum paid to the widow. Held, error; that the plaintiff may properly recover one-half of the damages found by the jury, as compensation to her attorney, but that the expenses of the funeral cannot be allowed. Held, further, that the better practice would have been to prove the extent of the attorney’s lien before the verdict, and not after, but this irregularity may be overlooked since it has not 'affected the result.</p>

<p>Appeal from a judgment entered September 1, 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 decision of an official referee and directing a dismissal of the complaint.</p> <p>The evidence, all of which is uncontradicted, is ample to sustain the findings. (Simons v. Cromwell, 262 Fed. Rep. 680; Cannon v. Saves, 177 App. Div. 588; Lerche v. Brasher, 104 N. Y. 157; Matter of Merchant, 6 N. Y. Supp. 675; Whitman v. Foley, 125 N. Y. 651; Griggs v. Renault Selling Branch, 179 App. Div. 845.)</p> <p>Hunt made no contractual promise. At most, his alleged statements were mere expressions of benevolent intent. (Hamlin v. Stevens, 177 N. Y. 39.) In cases of this kind the testimony must be not only clear and convincing, but of the clearest and most convincing character, and corroborated in all substantial particulars by disinterested witnesses. (Hamlin v. Stevens, 177 N. Y. 39; Winston v. Winston, 165 N. Y. 553; Winnie v. Winnie, 166 N. Y. 263; 174 N. Y. 53; Mahany v. Carr, 175 N. Y. 454; Ide v. Brown, 178 N. Y. 28; Rosseau v. Rouss, 180 N. Y. 116; Holt v. Tuite, 188 N. Y. 17; Toussey v. Hastings, 194 N. Y. 79; McKeon v. Van Slyck, 223 N. Y. 392; Ward v. N. Y. L. J. Co., 225 N. Y. 314; Matter of Sherman, 227 N. Y. 350; Schen v. Blum, 119 App. Div. 827; Butcher v. Geissenhiemer, 125 App. Div. 272; White v. Devendorf, 127 App. Div. 791; Dueser v. Meyer, 129 App. Div. 598.) The application of section 1338 of the Code of Civil Procedure, is an instrument in the hands of this court to conserve justice, and will not be permitted, as a mere technicality, to thwart justice. (Levy v. Louvre Realty Co., 222 N. Y. 14; Town of Queensbury v. Hudson Valley Ry. Co., 218 N. Y. 648; Livingston v. City of Albany, 161 N. Y. 602; Beatty v. Guggenheim Ex. Co., 223 N. Y. 294.)</p>

judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1920, affirming a judgment in favor of plaintiff entered upon a verdict. The court erred in declining to charge the jury that the plaintiff could not recover a verdict merely because of the failure to have railings on these stairs.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 15, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 6, 1921, which reversed a judgment of the Court of Special Sessions of the city of New York, convicting the defendant of a misdemeanor for failure to comply with an order of the fire commissioner of the city of New York and dismissed the information. (John F. O’Brien, Joseph I. Berry and Michael J. Kelly of counsel), for appellant.

The Trial Term was correct in holding that the place of delivery was Chicago and that, therefore, plaintiff’s measure of damage was the difference between the contract price and the market price at Chicago, the place of delivery, at the time of the breach. The' Appellate Division erred in holding that the measure of damages was the difference between the contract price and the market price at London, the point of destination. (T. & M. Ins.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 8, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 6, 1921, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The exception to the charge with relation to the alleged presumption of negligence presents reversible error. (Munzer v. Interurban St. Ry. Co., 45 Misc. Rep. 568; Blew v. Phila. R. T. Co., 227 Penn. St. 319; Black v. Boston El.

The express contract of the parties gives defendant no excuse. It affords a defense against causes “ beyond the control of the seller ” and no others. A taking which respondent induces is not a cause beyond its control. The parties’ express force majeure stipulation excludes the implication of the ordinary implied force majeure condition. (Schwier v. N. Y. C. R. R. Co., 90 N. Y. 558; Bleeker v. Johnston, 69 N. Y. 309; Met.

<p>Contract — insurance companies — ultra vires — when obligation to render services will be implied and read into contract between corporation and one of its officers — when failure to prove rendition of services bar to action on contract — seal on executory instrument only presumptive evidence of consideration •—• when contract whereby insurance corporation agreed to pay to wife of one of its officers an annuity in consideration of his past and future services illegal upon its face.</p> <p>1. Where a contract between an insurance society and one of its officers and directors provided: “ That in consideration of the services rendered and to be rendered by him outside of and in addition to the services required of him as incumbent of his office and as full compensation to him for all such extra services, said Society agrees in addition to said salary to pay,” to his wife an annuity for life, commencing at his death, it is obvious that the purpose of the contract was to pay and satisfy claims for past as well as future services, and where there is nothing in the contract by which the officer specifically obligated himself to render services in the future, that is fairly to be implied and should be read into it. A promise may be lacking', yet the whole writing indicates that he was thus obligating himself.</p> <p>2. The wife stands in no better position than would her husband and took the contract subject to all the burdens ho would have had if the promise had been to pay him, instead of her, an annuity during his life. The failure, therefore, in an action by the wife brought after the death of her husband to recover the annuity contracted to be paid, to prove the rendition of services to be rendered, or that her husband was ready and willing to render such services, was a bar to plaintiff’s recovery.</p> <p>3. Plaintiff was also required to prove, at least prima facie, that the past services were of a character and rendered under such conditions as imposed a legal obligation on the corporation to pay therefor. The general rule is' that, in the absence of an express contract, an officer or director of a corporation cannot recover for services rendered without proving they were outside of his duties as such officer or director, and in addition thereto that the same were rendered with the expectation by both parties that they should be paid for.</p> <p>4. A seal on an executory instrument is only presumptive evidence of consideration (Codo Civ. Pro. § 840; Civ. Pr. Act, § 342) and, in a contract of an extraordinary character, does not, of itself, import a sufficient consideration to justify the payment of a large sum of money.</p> <p>5. The contract in suit, when read in connection with the charter and by-laws of the defendant, is illegal upon its face. Part of the consideration for the contract was services to bo rendered in the future and whore their character and extent were not specified but wore indefinite and uncertain and might be of the most trivial character and value they do not afford a consideration sufficient, under the defendant’s charter and by-laws, to empower it to make such a contract.</p>

The plaintiff’s testimony established a complete cause of action — both the defendant’s negligence and the plaintiff’s freedom therefrom; at least the jury might have so found, and the nonsuit and judgment of affirmance are clearly erroneous. (Provoost v. International Ry. Co., 151 App. Div. 240; 208 N. Y. 611; Simons v. International Ry. Co., 152 App. Div. 953; 209 N. Y. 548; Knapp v. Barrett, 216 N. Y. 226; Pelletreau v. Metropolitan St. Ry. Co., 74 App.

<p>Libel — privileged communications — when statement made by officer of law enforcement society to a district attorney, charging person with a crime but based on unverified information not privileged — what is sufficient evidence of malice in such case.</p> <p>1. The rule of absolute privilege does not attach to a complaint made or information given to a district attorney of an alleged crime.</p> <p>2. Such a communication is subject, however, to the rule of qualified privilege. To justify a recovery in an action for libel based upon it the plaintiff must establish that it was made maliciously and without probable cause.</p> <p>3. Malice here means not merely personal ill will. It may mean a wanton and reckless disregard of the rights of another.</p> <p>4. Malice of this kind may be inferred by a jury in the case of a communication made to a district attorney where the charge is false; where it is made as of personal knowledge and where its sole basis is a statement received from an unknown correspondent as to information received by her from some unknown source.-</p>

<p>Negligence — collision between automobile driven by defendant’s chauffeur and taxicab of plaintiff whereby the latter was injured — defendant not liable when ."evidence sufficient to show that defendant’s chauffeur was driving car for his own purposes and in violation of order of defendant.</p> <p>Defendant’s automobile in charge of his chauffeur collided with plaintiff’s taxicab thereby inflicting injuries upon plaintiff for which this action is brought. The uncontradicted testimony of the defendant and the chauffeur, no longer in defendant’s employ, shows that when the chauffeur’s work was over, the evening of the accident, the chauffeur was told by defendant to take the car to the garage, that defendant would not need it until the next morning; instead the chauffeur took the car to get his supper and thereafter started away from the garage and thereafter collided with plaintiff’s taxicab. The only evidence in behalf of the plaintiff showing the employment by the defendant of the chauffeur at the time of the accident is the presumption arising out of the ownership of the car. No liability arises under such a state of fact, and there was nothing to submit to the jury. The story as told by defendant and by his chauffeur is not improbable on its face, it is not unreasonable, is not contradicted by facts, and has nothing about it to create suspicion and at the time of the trial the chauffeur was not in the employment of the defendant and was testifying against his own interest. It was error, therefore, to submit the case to the jury; the complaint should have been dismissed. (Ferris v. Sterling, 214 N. Y. 249, distinguished.)</p>

Plaintiff’s cause of action is clearly set forth in his complaint, and was clearly established. (Ayres v. D., L. & W. R. R. Co., 158 N. Y. 254.) The Appellate Division took an erroneous view of plaintiff’s cause of action and erred in its finding of the law. (Carpenter v. B. & A. R. R. Co., 97 N. Y. 494.) Actionable negligence on defendant’s part was not shown. (Carpenter v. B. & A. R. R. Co., 97 N. Y. 499; Streets v. Grand Trunk Ry. Co., 76 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 27, 1922, which unanimously affirmed an order of Special Term confirming the report of commissioners of appraisal appointed in a proceeding to acquire a right of way for a subway.

Plaintiff failed to establish any actionable negligence on the part of the defendant. (Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430; Griffith v. Long Island R. Co., 147 App. Div. 693; Bowden v. L. V. R. R. Co., 178 App. Div. 413; 226 N. Y. 648.) Plaintiff was guilty of contributory negligence as a matter of law. (Brooks v. B. & N. F. R. R. Co., 25 Barb. 600; Mackey v. N. Y. C. R. R. Co., 27 Barb. 528; S. B. A. L. Ry.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 19, 1921, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The unanimous affirmance at the Appellate Division carries with it the presumption that there is evidence to sustain the verdict.

The complaint states a cause of action in equity. (Crary v. Smith, 2 N. Y. 60; Rindge v. Baker, 57 N. Y. 209; Bauman v. Pinckney, 118 N. Y. 604; James v. Barnes, 105 App. Div. 287.) The affirmative defenses set up in the amended answer are insufficient and not supported by the evidence. (Sage v. Truslow, 88 N. Y. 240; Witbeck v. Wains, 16 N. Y. 532; Disbrow v. Harris, 122 N. Y. 362; Wynne v. Friedman, 49 Misc.

Plaintiff opened wide the door for the testimony of Dr. Whitney by giving her own testimony as to the examinations which he made and as to his treatment of her case. (Capron v. Douglass, 193 N. Y. 11; Dewey v. Cohoes & Lansingburgh Bridge Co., 170 App. Div. 117; Morris v. N. Y., O. & W. R. R. Co., 148 N. Y. 88.) The exclusion of Dr. Whitney’s testimony was not error.

November 28th, 1919, the petitioner, Red Cross Line, respondent, and the appellant, Atlantic Fruit Company, entered into a written agreement of charter party wherein appellant was described as “ chartered owners ” of the steamship Runa and referred -to as “ owners,” and the respondent “ Red Cross Line ” was designated as “ charterers.” By the terms of the charter party the owners let and the charterers hired the steamship Runa from the time of delivery at Philadelphia, Pa.,…

Gillespie, deceased. The residuary estate vested in the four children of Catherine Cossitt Dodge Rogers who were living at the time of the death of testatrix. (Campbell v. Rawdon, 18 N. Y. 412; Matter of Embree, 9 App.

Appeal, by permission, from 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 confirming a report of commissioners of estimate and assessment in street opening proceedings. Land owned by a railroad corporation, not part of its right of way, but used for its corporate purposes, may under the New York charter be assessed for opening a street.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 18,1921, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.</p> <p>The former action having been discontinued, the appellant is not concluded by the judgment entered therein. (Deen v. Milne, 113 N. Y. 309; Cahill v. Wissner, 183 App. Div. 663; P. C. & St. L. Ry. Co. v. Keokuk & H. Bridge Co., 107 Fed. Rep. 781; 109 Fed. Rep. 279; Smith v. McCluskey, 45 Barb. 617; City of Tampa v. Tampa Water Wks., 45 Fla. 600; 199 U. S. 241; Bedford-Bowling Green Stone Co. v. Oman, 134 Fed. Rep. 431.) In construing the trust agreement in evidence as a contract of absolute guaranty the court below committed reversible error. (M. & E. R. R. Co. v. Sussex R. R. Co., 20 N. J. Eq. 542.)</p> <p>The decision of the Appellate Division in the previous action between these parties, from which no appeal was taken by defendant, was a conclusive adjudication that the contract sued upon imposed on defendant an absolute obligation to make the stipulated payments to plaintiff in the event of Brown’s failure to make them. (Cummerford v. Paulus, 66 Mich. 648.) By the plain language of the agreement of June 2, 1899, defendant assumed an absolute obligation to pay plaintiff $200 a month during her life, if Brown failed to make such payments. (Reardon v. Werner, 111 App. Div. 259; Lord v. Lord, 68 Hun, 537; Dupre v. Rein, 7 Abb. [N. C.] 256.) The common intent in making the agreement of June 2, 1899, as shown by the surrounding circumstances and apparent object of the parties, was to insure absolutely the payment of $200 a month to plaintiff during her natural life. (Smith v. Kerr, 108 N. Y. 31.) The practical interpretation put upon the contract by the parties was that. the trust company had assumed an independent obligation, and that the contract did not constitute the trust company a mere trustee or stakeholder for Mrs. Brown. (B. Ins. Co. v. Dutcher, 95 U. S. 269; Nicoll v. Sands, 131 N.Y. 19; City of New York v. N. Y. C. R. R. Co., 193 N. Y. 548; Carthage T. P. Mills v. Vil. of Carthage, 200 N. Y. 1.)</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 17, 1921, unanimously affirming a judgment in favor of defendant, respondent, entered upon a decision of the court on trial at Special Term. The trial court was without power and jurisdiction to award a personal judgment for the alleged debt or for a deficiency in favor of the respondent and against the appellant.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 24, 1921, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. If the payment and inspection clause had' been omitted, the contract would have called for delivery at San Francisco, with a right of inspection in the buyer at the place of destination.

The defendant was not liable for constructing or maintaining a nuisance and the trial court erred in submitting the case to the jury. (Hickok v. Auburn L., H. & P. Co., 200 N. Y. 464; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Martin v. Pettit, 117 N. Y. 118; Melker v. City of New York, 190 N. Y. 481; Edwards v. N. Y. & H. R. R. Co., 98 N. Y. 245; Timlin v. Standard Oil Co., 126 N. Y. 514; Junkermann v. Tilyou Realty Co., 213 N. Y. 404; Uggla v. Brokaw, 117 App.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1921, affirming a judgment in favor of plaintiff entered upon a verdict.</p> <p>The sole proximate cause of the accident was the deliberate acts of third persons over whom the defendant had no control and the judgment against it has no foundation in law. (Lazarowitz v. Levy, 194 App. Div. 400; Frashella v. Taylor, 157 N. Y. Supp. 881; Berman v. Schultz, 40 Misc. Rep. 212; Sorrusco v. Hobson, 155 N. Y. Supp. 364; Keever v. Central Brewing Co., 150 N. Y. Supp. 986; Lee v. Van Buren & N. Y. Bill Posting Co., 190 App. Div. 742; Cunningham v. Castle, 127 App. Div. 580; S. & R. on Neg. § 26; Whart. on Neg. § 134; Hofnagle v. N. Y. C. & H. R. R. R. Co., 55 N. Y. 612; Sereles v. M. Ry. Co., 101 N. Y. 662; Ruppert v. B. H. R. R. Co., 154 N. Y. 90.)</p> <p>The question of proximate cause was properly submitted to the jury. (Lee v. Van Buren & N. Y. B. P. Co., 190 App. Div. 742; Lazarowitz v. Levy, 194 App. Div. 400; Donnelly v. Piercy Cont. Co., 222 N. Y. 210.)</p>

<p>Intoxicating liquors — National Prohibition Act —■ when whisky has been sold without either vendor or purchaser having the permits required by the act or the regulations made thereunder the sale is illegal — when holder of check given in payment for whisky cannot recover thereon.</p> <p>1. Where the denial of requests to find facts supported by uneontradicted evidence is duly excepted to and the requests are not inconsistent with any findings made by the trial justice, the refusals present questions of law reviewable by the Court of Appeals.</p> <p>2. No cause of action can arise out of a transaction made illegal by statute. Where a state prohibits altogether the sale of certain goods not only the agreement for such sale is invalid but if the sale is made in violation of law the agreed price cannot be recovered.</p> <p>3. By the terms of the National Prohibition Act and the regulations adopted thereunder, in order to make the sale of whisky legal, it is necessary for the seller to have a permit to sell and for purchasers to have a permit to sell, or use, so as to entitle them, to procure intoxicating liquor and also a permit to purchase, a copy of which should have been filed with the director of liquor sales, a copy with the vendor and a copy with the purchasers themselves.</p> <p>4. Where purchasers of whisky had a permit to sell, but no permit to purchase, and neither the vendor nor his agent had a permit to sell, tho sale was illegal, and where the broker of the vendor brings an action against the purchasers upon a check for part of the price of the whisky, the balance having been paid in cash, said check having been transferred to him by the vendor in payment of his services as broker in effecting the sale, and the defense is interposed that the vendor in said sale had no permit authorizing him, under the National Prohibition Act and the regulations made thereunder, to sell the whisky to defendants and that the defendants had no permit authorizing them to purchase the whisky, the plaintiff cannot recover. The check being part of the consideration for an illegal sale under the National Prohibition Act' and regulations, it is void in the hands of tho plaintiff who knew about the transaction and the purpose for which the check was given by defendants, and, therefore, he cannot maintain this action.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 11, 1921, which reversed a determination of the Appellate Term, reversing a judgment of the Municipal Court of the city of New York in favor of defendant and directing judgment in favor of plaintiff and affirmed said Municipal Court judgment.

The disposition made of the case by the Appellate Division was beyond any power possessed by that court and in violation of defendant’s constitutional right of trial by jury; and in any event the Court of Appeals now having jurisdiction by reason of the modification of the judgment will determine whether the trial was free from prejudicial error.

. The plaintiff’s motion for' the direction of a verdict in his favor at the conclusion .of the evidence should have been granted. (People v. Davis, 231 N. Y. 60; Tucker v. O’Brien, 117 N. Y. Supp. 1010; Candee v. Penn. R. R. Co., 147 N. Y. Supp. 529; Byrne v. B. C. R. R. Co., 56 N. Y. S. R. 127; 145 N. Y. 619; Lomer v. Meeker, 25 N. Y. 361; Kavanagh v. Wilson, 70 N. Y. 177; Kelly v. Burroughs, 102 N. Y. 93; Decker v. Sexton, 19 Misc.

Plaintiff is estopped from asserting that the transfer of assets and liabilities from defendant company to the Pennsylvania company was unlawful,, by its failure to object after notice and before the transfer; by its active assistance in the proceedings by which the transfer was effected; by its acceptance of benefits and enforcement against the Pennsylvania company of rights based on the novation which resulted from the transfer, and by its election to pursue its remedies…

The allowance of a commission to Panagoulopoulos at the rate of fifty-one cents per tent for 150,000 tents is erroneous as a matter of law upon the findings. (Bonnell v. Griswold, 89 N. Y. 122) Israel v. Manhattan Ry. Co., 158 N. Y. 624; Parsons v. Parker, 159 N. Y. 16; Johnson Service v. Hildebrand, 149 App.

There is no rule of law preventing an assignee from obtaining specific performance of a contract for the purchase and sale of real property. The so-called “ mutuality ” rule has no application to an assignee. (4 Pom. Eq. Juris. [3d ed.] § 1405; Jones v. Tankerville, [1909] 2 Ch. Div. 440; Baker Mach. Co. v. U. S. F. A. Co., 97 Atl. Rep. 613; Naylor v. Parker, 139 S. W. Rep. 93; Wright v. Suydam, 131 Pac.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 31, 1922, which affirmed an order of Special Term, affirming an order of the City Court of Buffalo, awarding certain premises in the city of Buffalo to the petitioner and directing dispossession of the occupants.

The action was brought for the purpose of imposing upon the town of Greenburgh a liability to pay a large part of the cost of opening and constructing Warburton avenue, from the north line of the city of Yonkers to a point at the southerly end of Constant street, in the village of Hastings, which is one of the villages in the town of Greenburgh and adjoins Yonkers on the north.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 27, 1920, unanimously affirming a judgment, in favor of plaintiff entered upon a verdict.

The action was to recover for an alleged breach of contract. Defendant gave plaintiffs an option for the purchase of 25,000 boxes of tin. Thereafter plaintiffs accepted in writing 8,000 boxes. Defendant thereupon notified plaintiffs by parol that it would not recognize the acceptance or any future acceptance under the option unless security for payment was given. Payment for the 8,000 boxes was thereupon guaranteed.

<p>Crimes — murder in first degree —- judgment of conviction affirmed.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 12, 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.

The claimant was employed by a photographer in the development of photographic plates. It was necessary for her, more than five hundred times each day, to dip plates, held in her left hand, into a poisonous chemical solution. Having performed this work continuously for more than a week, her fingers became red and swollen. She then went to a physician who gave her treatment.

Plaintiff, an intending passenger upon defendant’s railroad, entered its station at Geneva and purchased a ticket to her destination. The floor of the station was being mopped and was wet. In places thereon there were pools of water. Plaintiff in going to check her baggage slipped on the wet floor and falling, received the injuries complained of.

The action was to recover for loss of services of plaintiff’s wife on account of personal injuries alleged to have been sustained by her through the negligence of defendant. The complaint alleged that while the plaintiff’s wife was descending stairs in the house where she resided, which was owned by defendant, one of the steps broke and she was thrown to the foot of the stairs receiving severe injuries.

<p>Crimes — murder in first degree —■ judgment of conviction affirmed.</p>

This action was brought under the Federal Employers’ Liability Act to recover damages for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. Plaintiff, a brakeman on one of defendant’s trains, received the injuries complained of while attempting to adjust a coupling on his engine which was about to enter the roundhouse in defendant’s Buffalo yards.

Plaintiff is trustee under a mortgage or deed of trust executed by defendant’s predecessor and assumed, ratified and confirmed by defendant. By its terms it was agreed that certain fixed percentages “ of the principal of the bonds issued hereunder and then outstanding ” should be paid annually to plaintiff as a sinking fund for the redemption of bonds secured thereby.

<p>Appeal — order reversing decree of surrogate and remitting matter to him for further consideration not a final order and not reviewable in Court of Appeals.</p> <p>Where, in a proceeding for the construction of a will, the surrogate held that testator’s wife was the owner of the fee, but the Appellate Division, holding that she had a life estate only, reversed the decree and remitted the matter to the surrogate for further consideration, the order of the Appellate Division is not a final order and is not reviewable in the Court of Appeals.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 19, 1921, which modified and affirmed .as modified an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

<p>Pleading — amendment of complaint so as to correct date on which agreement was alleged to have been made makes no substantial change in cause of action.</p> <p>An amendment to a complaint so as to allege that a certain agreement was made on the seventh of May instead of on the nineteenth, as previously alleged, makes no substantial change in the cause of action and is an unnecessary correction of an immaterial variance. A construction by the Appellate Division, therefore, of the amendment as sotting up a new cause of action cannot be sustained.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 6, 1920, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 14, 1921, which unanimously affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York dismissing the plaintiff’s complaint.

The action was to recover for loss of services and expense occasioned plaintiff by reason of personal injuries alleged to have been sustained by his wife through the negligence of defendant. The question on appeal was whether testimony of & physician, consulted by plaintiff’s wife, offered on behalf of defendant, was properly excluded under section 834 of the Code of Civil Procedure.

<p>Replevin — when owner of automobile precluded by its conduct from denying authority of one in possession to sell the same.</p>

The plaintiffs sued upon a draft which they claim was drawn upon the defendants, respondents, by one Mariano Herrera, payable to the order of himself ninety days after date, accepted by the defendants and indorsed and delivered by said Mariano Herrera to the plaintiffs, the holders thereof, before maturity for value.

The action was to recover upon a policy of fire insurance issued by defendant and covering defendant’s steamboat.

Testator by his will provided: “ To each person not hereinbefore named who, at the time of my death shall be in my service and shall then be customarily employed as part of my household in my house in New York city or in my country house in Ulster county, New York, the sum of three thousand dollars, if he or she shall have been in my service for two years, with the further sum of two hundred dollars for each year or portion of a year in excess of two years, and the sum of…

The action was to recover for loss of services of plaintiff’s son, a minor, by reason of personal injuries alleged to have been sustained by him through the negligence of defendant.

Testator was killed when an automobile in which he was riding with others ran off a bridge erected by the Albany and Susquehanna railroad to carry the highway over its tracks in the town of Duanesburgh, and since altered and maintained by its successor Delaware and Hudson Company, this railroad being in the control of the Federal government at the time of the accident.

On June 15, 1921, petitioner received notice from the industrial commissioner that, by reason of the curtailment in the appropriations in the department of labor, a reduction in the number of employees in the department was necessary, and that the position occupied by him was abolished, effective June 30, 1921.