Volume 238 — New York Reports

N. Y., O. & W. Ry. Co. v. Livingston, 206 App. Div. 589, modified. Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 23, 1923, which affirmed a final order of Special Term confirming the report of commissioners in condemnation proceedings.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department entered December 14, 1923, which reversed an order of Special Term granting a motion, by defendant, for judgment on the pleadings. The following questions were certified: “ 1. Is defendant entitled to judgment on the pleadings? “ 2.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 26, 1923, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law as against the insurance carrier, and affirming the same as against the employer.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 11, 1923, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the corporation counsel of the city of New York to institute proceedings to ascertain the compensation due to the petitioners by reason of the closing of a portion of West One Hundred and Seventy-seventh street in the borough of…

<p>People ex rel. Desiderio v. Conolly, 207 App. Div. 886, reversed.</p> <p>Appeal, by permission, from an order of- the Appellate Division of the Supreme Court in the fourth judicial department, entered November 30, 1923, which affirmed an order of Special Term granting a peremptory order of mandamus to compel audit of the claims of the relators against their objection that they were entitled to the trial of the issues under an alternative mandamus order and thereby to additional relief.</p>

<p>Evidence — charge — carriers — action to recover value of goods alleged to have been stolen while in transit from dock to warehouse — error to permit testimony as to whether or not guard at dock had been convicted of stealing the goods — sufficiency of evidence to permit jury to infer that goods had been taken from box before delivery to truckman — erroneous charge — objection.</p> <p>1. Where, in an action against a trucking company and its bondsmen to recover the value of certain watches alleged to have been stolen from a box while the trucking company was transporting it from a steamship dock, to the Appraisers’ Stores, evidence has been introduced on the part of defendants that a watch, identified and admitted to be one of the stolen watches, had been received by the witness from one of the guards employed at the dock to watch the discharged cargo at night, it is erroneous to permit other witnesses to testify as to whether or not the guard had been convicted of the crime of stealing the watches. The prosecution by the People had nothing to do with the case and the acquittal of the guard was no answer to the defendant’s evidence.</p> <p>2. Such evidence taken in connection with testimony that for nearly six days the box had been kept in a wire cage ten or fifteen feet high and open at the top, on the dock where the guard watched at night, together with testimony that might indicate that some one had entered the cage by going over the top, is sufficient to permit the jury to draw an inference that the guard stole the watches before they came into the possession of the truckman. It was, therefore, error for the court to withdraw an instruction that they might draw such an inference and to charge that there was no evidence from which the jury could infer that the guard took the watches from the cage and such error was not cured by further remarks of the court that evidence of the witness who had received the stolen watch from the guard and of his wife as to transactions with the guard might be considered and that there was no evidence that the guard obtained the watches from the truck driver.</p> <p>3. An objection to a question is taken in time though the answer appears to have gotten in before it, where, after the ruling, another damaging answer was given.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1919, which affirmed a judgment rendered at an Extraordinary Trial Term for the county of New York upon a' verdict convicting the defendant of making a false return of the result of a canvass at a primary election.</p>

<p>Appeal — interlocutory judgment — practice — practice on appeal from final judgment rendered after affirmance of interlocutory judgment — sections 588 and 590 of the Civil Practice Act construed and applied.</p> <p>On the motion of defendant the trial court granted an order dismissing plaintiff’s complaint for insufficiency. Upon appeal, the Appellate Division affirmed the order but granted leave to plaintiff to serve an amended complaint within twenty days. Plaintiff having failed to do this, an order was entered by the Special Term, upon an affidavit showing this fact, which granted a final judgment of dismissal. From this final judgment, plaintiff has appealed, under the statute (Civ. Pr. Act, § 590), to this court without obtaining leave of the Appellate Division. The appeal brings up for review only the determination of the Appellate Division. This determination, however, was an unanimous affirmance, and the appeal therefrom not being one of the eases which may be brought to this court, under the statute (Civ. Pr. Act, § 588), after an unanimous affirmance, without leave being granted, either by the Appellate Division or by this court, the appeal must be dismissed. Section 588 of the Civil Practice Act must be read in connection with section 590, and although after the affirmance of an interlocutory judgment by the Appellate Division a party may appeal from the final judgment of the Special Term directly to this court (Civ. Pr. Act, § 590), yet if that interlocutory judgment has been unanimously affirmed leave to appeal must be obtained and if the Appellate Division refuses such leave application should be made to this court. (Redman v. Verplex Art Co., Inc., 237 N. Y. 475, followed '</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1923, affirming a judgment in favor of plaintiff entered upon a verdict.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department entered March 14, 1924, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 25, 1924, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p>

Appeal, by permission, from a judgment of the Appellate Division of the- Supreme Court .in the first judicial department, entered December 14, 1923, in favor of plaintiff upon the submission of a controversy under sections 546-548 of the Civil Practice Act.

The order of the Appellate Division held that the Public Service Commission had no authority to grant permission to the defendant, appellant, to increase its rates of fare for carrying passengers.

Thompson and Blanche A. Thompson,his wife. The question was whether the said Blanche A. Thompson, through her last will and testament, had properly exercised a power of appointment reserved to her in and by said trust agreement.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 24, 1923, unanimously affirming a judgment entered upon a decision of the court on trial at Special Term.

The action was to recover for damage to plaintiff’s truck through its being struck by one of defendant’s trains. At the time of the accident a highway which crossed the defendant’s right of way in the village of Gowanda between the stations of Gowanda and Collins, was being improved under a State contract. The plaintiff’s truck was being used to haul gravel in connection with the construction work.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 11, 1924, which unanimously affirmed a decree of the New York County Surrogate’s Court in a proceeding for the apportionment between life beneficiaries of income arising from a trust created by the last will and testament of Mary G. Pinkney, deceased.