Volume 292 — New York Reports

<p>I. Tbe order appealed from should be reversed and tbe certified question answered in tbe negative. Tbe controlling statute is section 48, subdivision 1, of tbe Civil Practice Act, which provides that an action upon a contract obligation or liability express or implied must be commenced within six years after tbe cause of action accrued. The present action was begun more than nine years after tbe alleged breach of tbe contract. {New York & Boston Despatch Express Go. v. Gar-roll, 170 App. Div. 197; Keys v. Leopold, 241 N. Y. 189; Ochs v. Woods, 221 N. Y. 335; Brick v. Gohn-Eall-Marx Co., 276 N. Y. 259.) II. Section 57 of tbe Civil Practice Act is inapplicable.</p> <p>I. Tbe cause of action did not accrue until plaintiff was appointed administrator with tbe will annexed in February, 1941, and tbe Statute of Limitations did not commence to run against tbe claim until tbe issuance of such letters of administration. {Moore v. Maddock, 224 App. Div. 401; Titus v. Wallick, 222 App. Div. 17; Seymour v. Mechan: hcs & Metals Nat. Bank, 199 App. Div. 707; Civ. Prac. Act, § 11; -Dunning v. Ocean Nat. Bank, 61 N. Y. 497; Sanford v. Sanford, '■62 N. Y. -’553.-; Bucklin v. Ford, 5 Barb. 393; Grapo v. City of fSyracuse, 183-N. Y. 395; American Ry. Co. v. Coronas, 230 F. ■545.-) II. Tbe contract did-not provide any specific time when it 'wás to In tbe absence specific limitation 'df time for performance, tbe law provides that performance be within a reasonable time. What constitutes a reasonable .time would .be for .determination .upon tbe trial by tbe jury. (Moore v. Maddock, 224 App. Div. 401; Ahrens v. Guaranty Trust Go., 125 Mise. 443.)</p>

I. Plaintiff having proved that the check was delivered for a special purpose, and the check having been diverted from that purpose, the burden is on the defendant to show that he is the holder in due course. (Negotiable Instruments Law, § 98; Canajoharie Nat. Bank v. Diefen-dorf, 123 N. Y. 191.) II. The defendant cannot be a holder in due course because he is the payee of the check. (142 A. L. B. 489; Jones v. Waring é Gillow [1926] A. C. 670.) III.

<p>There was no evidence to show that the crime was committed in whole or in part in the county of New York, hence it was reversible error for the trial court to deny the motion to dismiss the indictment at the close of the case. (People v. Zimmer, 174 App. Div. 470, 220 N. Y. 597; People v. Spivak, 237 N. Y. 460; People v. McGlean, 243 App. Div. 578; People v. Werblow, 241N. Y. 55.)</p> <p>The trial court had no jurisdiction to submit the count of concealing and withholding to the jury. (People v. Zimmer, 174 App. Div. 470, 220 N. Y. 597; People v. Spivak, 237 N. Y. 460; Allison v. Commonwealth, 83 Ky. 254; State v. Pray, 30 Nev. 206; People v. Staken, 40 Cal. 599; State v. Rider, 46 Kan. 332; Rasch v. State, 5 Cold [Tenn.] 39; Commonwealth v. O’Neil, 10 Penn. Dist. 227; Commonwealth v. Kunsman, 41 Penn. St. 429; Derby on Criminal Law 3d ed., § 1930, subd. 1; People v. Werblow, 241 N. Y. 55.)</p> <p>I. The crime was committed in New York county. Actual manual or personal possession of stolen goods is not necessary to prove criminal concealment and withholding— constructive possession is sufficient. (United States v. Le Fanti, 255 F. 210, 259 F. 460; People v. Rossi, 15 Cal. App. 2d 180; People v. Silvas, 34 Cal. App. 638; People v. Poncher, 358 Ill. 73; People v. Jurek, 357 Ill. 626; State v. Conklin, 153 Iowa 216; Commonwealth v. Kuperstein, 207 Mass. 25; Price v. State, 9 Okla. Crim. 359; Zejf v. State, 98 Tex. Crim. 623; Long-man v. Commonwealth, 167 Va. 461; 53 C. J. 505; People v. Cosmides, 133 App. Div. 103, 198 N. Y. 566.) II. Constructive possession in New York county was further shown by Fein’s actual possession of the original invoices. (People v. Silvas, 34 Cal. App. 638; Glasser v. State [1921], 90 Tes. Crirn. 116; People v. Bowling, 84 N. Y. 478.)</p>

I. If an indorser signs for the accommodation of the payee he is not liable to the payee and the proof here shows that defendant was such an indorser. (Negotiable Instruments Law, § 114; Wittemann v. Sands, 238 N. Franklin v. Kidd, 219 N. Y. 409; Haddock, Blanchard & Go. v. Haddock, 192 N. Y. 499; Horne v. Loughman, 264 App. Div. 124; McAdam v. Wholesale Dry Gleaning & Dyeing Works, Inc., 232 App. Div. 30; Wittemann v. Spencer, 205 App. Div. 855; Easton Furniture Mfg.

I. The discretionary power to pay over principal in paragraph tenth was intended to he exercisable by a successor trustee. (Smith y. Floyd, 193 N. Y. of White, 135 Mise. 377.) II. The power to pay over principal continues in the grantees apart from their legal title as trustees. (Hutton v. Benkard, 92 N. Y. 295; Matter of Cooksey, 182 N.. Y. 92; Chase Nat. Bank. v. Chicago Title & Trust Co., 246 App.

Tbe motions to advise tbe jury to acquit defendant should have been granted. Tbe evidence was insufficient as a matter of law to warrant tbe submission of tbe case to tbe jury. (People v. Bearden, 290 N. Y. 478; People v. Orr, 270 N. Y. 193; People v. Mantin, 184 App. Div. 767; People v. Woltering, 275 N. Y. 51; People v. Albero, 223 App. Div. 442; People v. D’Anna, 243 App.

I. The Official Referee correctly held that the securities corporation was neither the alter ego of nor a department of the bank. (.People v. American Bell Tel. Go., 117 N. Y. 241; Stone v. Cleveland, G., Chicago & St. L. By. Go., 202 N. Y. 352; Brock v. Poor, 216 N. Y. 387; Elenkreig v. Siebrecht, 238 N. Y. 254; Berkey v. Third Ave. By. Go., 244 N. Y. 84; Lowendahl v. B. & O. B. B. Go., 247 App. Div. 144, 272 N. Y. 360; Matter of Lawyers Mtge.

<p>Argued November 16, 1943;</p> <p>I. The contract pertained only to refunds on entries made under the Tariff Act of 1922. II. The judgment appealed from having been based upon res judicata, presumably established by a prior judgment which has been reversed, the judgment appealed from is without foundation. (Hall v. Andrews, 65 N. Y. 572; Smith v. Fra/nkfield, 77 N. Y. 414; Wood v. Jackson, 8 Wend. 9; Chamberlain v. Choles, 35 N. Y. 477; Briggs v. Bowen, 60 N. Y. 454; Messing v. Faulkner, 83 Kan. 115; Barton v. Petit, 7 Cranch 288; Poole & Co. v. Seney, 70 Iowa 275.)</p> <p>I. Upon the evidence the trial court correctly found that the importers had engaged respondents’ services in connection with all protests involved in the dogskin case. II. The Appellate Division erred in determining that the plaintiffs are not entitled to commissions on refunds collected on entries made by defendant after the date of the signing of the contract. III. Under the contract respondents were employed with respect to entries made under both tariff acts. IV. premise that in reversing the judgment in Action No. 1 the Appellate Division granted a new trial upon all the issues de novo is incorrect.</p>

I. The determination of the State Tax Commission should he annulled because no findings were made by the Commission on the issues of fact raised in the application for revision. (Neto York Water Service Corp. v. Water Power & Control Comm., 283 N. Y. 23; Matter of Guernsey Breeders Co-op. v Noyes, 284 N. Y. 197.) II. The bonds became worthless in 1933 — not in 1932.

<p>An injunction was improperly granted. (Atlas Mfg. Co. v. Street & Smith, 204 F. 398; Kipling v. Putnam’s Sons, 120 P. 631; Merriam v. Famous Shoe & Clothing Co., 47 P. 411; Merriam v. Texas Siftings Pud. Co., 49 P. 944; Merriam Co. v. Syndicate Co., 207 F. 515, 237 TJ. S. 618; Hebrew Pub. Co. v. Scharfstein, 288 N. Y. 374; Gotham Music Service v. D. & II. Music Pub. Co., 259 N. Y. 86; Diamond Expansion Bolt Co. v. U. S. Expansion Bolt Co., 177 App. Div. 554; Street & Smith Pub. Inc., v. Phantom Detective, Inc., 148 Mise. 897; McGraw-Hill Pub. Co. v. American Aviation Associates, Inc., 117 P. 2d 293; Oxford Book Co. v. College Entrance Book Co., 98 P. 2d 688; Munro v. Tousey, 129 N. Y. 38; Stokes v. Allen, 56 Hun 526.)</p> <p>All of tbe essential elements, requisite to the granting of injunctive relief, were proven. (Fisher v. Star Co., 231 N. T. 414; Fischer v. Blank, 138 N. Y. 244; Day v. Webster, 23 App. Div. 601; Eastern Constr. Co. v. Eastern Engineering Co., 246 N. Y. 459; Hebrew Pub. Co. v. Scharfstein, 288 N. Y. 374; Maimer, Inc., v. Cruberth, 237 App. Div. 89, 262 N. Y. 484; Brillo Mfg. Co. v. Levine, 236 App. Div. 488; Long’s Hat Stores Corf, v .Long’s Clothes, Inc., 224 App. Div. 497; Burro%o v. Marcean, 124 App. Div. 665; Beckitt S Sons v. Kellogg, 28 App. Div. 111.)</p>

<p>I. The relator has a constitutional right to immunity from this prosecution. (People v. Beale, 131 Mise. 96; Dunham v. Ottinger, 243 N. Y. 437; Hale v. Henkel, 201 U. S. 43; Brown v. Walker, 161 U. S. 591; People ex rel. Ferguson v. Reardon, 197 N. Y. 236; People ex rel. Leioisohn v. O’Brien, 176 N. Y. 253; Boyd v. United States, 116 U. S. 616.) II. The relator’s books were surrendered under legal process accompanied by coercion and threats. (People y. Defore, 242 N. Y. 13; People v. Adams, 176 N. Y. 351.). III. The relator seasonably asserted his constitutional rights. (People ex rel. Taylor v. Forbes, 143 N. Y. 219; Gounselman v. Hitchcock, 142 U. S. 547; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; United States v. Hoyt, 53 F. 2d 881.)</p> <p>I. The Attorney-General’s acquisition of the relator’s books — the product of an improper seizure — did not accord him immunity from prosecution. Section 359 of the General Business Law accords immunity from prosecution only when evidence is compelled by legal process. (Dunham v. Ottinger, 243 N. T. 423; Matter of Doyle, 257 N. Y. 244; People v. Anhut, 162 App. Div. 517, 213 N. Y. 643; People v. Cahill, 126 App. Div. 391, 193 N. Y. 232; HéiTce v. United States, 227 U. S. 131; State v. Garchidi, 187 Wis. 438; People v. Defore, 242 N. Y. 13, 270 U. S. 657; People v. Gardner, 144 N. Y. 119; People v. Richter’s Jewelers, Inc., 291 N. Y. 161; People v. Adams, 176 N. Y. 351, 192 U. S. 585; People v. Mayen, 188 Cal. 237.) II. The relator’s books were not obtained by legal process. (Perry v. Lorillard Fire Ins. Co., 6 Lans. 201; Wolf v. McKinley, 65 Minn. 156; People v. Allen, 246 App. Div. 612; Matter of Phillips, 143 App. Div. 522; United States v. Price, 163 F. 904; State v. Gox, 87 Ohio St. 313; United States v. Sullivan, 274 U. S. 259; Matter of Wilman Agency, 178 Mise. 549, 264 App. Div. 850; Brown v. United States, 276 U. S. 134; Dean v. Kochendorfer, 237 Y. 384; People v. Belsky, 177 Mise. 125.)</p>

I. The several confessions were each either untrue, impossible, unreliable, contradictory, discredited or unbelievable and must be rejected. II. The verdict is against the weight of evidence. {People v. Gashin, 259 N. Y. 434; People v. Crum, 272 N. Y. 348; People v. Weiss, 290 N. Y. 160; People v. Mummiani, 258 N. Y. 394.) III. The judgment of conviction should be reversed and a new trial ordered.

I. The uncontroverted and conceded facts establish three sue-cessive false arrests and imprisonments and dismissal of the complaint was improper. (Schultz v. Greemuood Cemetery, 190 N. T. 276; Snead v. Bonnoil, 166 N.- Y. 325; Hoplcins v. Ciarle, 158 N. Y. 299; People v. O’Conner, 257 N. Y. 473; People y. Marendi, 213 N. Y. 600; Livingston v. Livingston, 246 N. Y. 234; People v. Shanley, 40 Hnn 477; Grinnell v. Weston, 95 App. Div. 454; West v. Cabell, 153 U. S. 78.) II.

The judgment of conviction should have been set aside and a new trial ordered in view of the newly discovered evidence. The allegedly newly discovered evidence — being merely cumulative impeaching testimony — could not have affected the verdict.

I. The machine vote in the Eighteenth • Election District of the Second Assembly District should be read as giving Cosgrove 8 votes on line A.. (Matter of Creedon, 264 N. Y. 40; Matter of Pettit v. Dietter, 246 App. Div. 895, 270 N. Y. 667.) II.

The foreign war ballot removed from an unsealed envelope in the Forty-first Election District of the Second Assembly District and counted for Walsh is void. The protested overseas war ballot removed by the court from an unsealed envelope in the Twenty-first Election District of the Second Assembly District and counted for Walsh is void. The Bilyek and O’Keefe ballots, canvassed as foreign war ballots on December 15,1943, were properly counted as valid votes for Walsh.

I. For the purposes of this appeal the statements of fact in the petition must he assumed to he true. II. The court is acting in excess of jurisdiction. (Hildreth v. City of Troy, 101 N. Y. 234; People v. McQuade, 110 N. Y. 284; Matter of Pye, 21 App. Div. 266.) III.

<p>I. The undisputed evidence establishes that the appellant is a philanthropic and eleemosynary institution and that its proposed use of its property was philanthropic and eleemosynary in character. (Cromwell v. American Bible Society, 202 App. Div. 625.) II. The appellant, as a philanthropic and eleemosynary institution, has the right, under the zoning ordinance, to occupy its property for its philanthropic and eleemosynary purposes. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; People ex rel. Orten-berg v. Bales, 224 App. Div. 87, 250 N. Y. 598; Matter of Multiplex Garages, Inc. v. Walsh, 213 App. Div. 155, 241 N. Y. 527; Strauch v. Toivn of Oyster Bay, 263 App. Div. 833; Delaware & Hudson Co. v. Utica, C. S B. B. B. Co., 174 Mise. 403, 259 App. Div. 969; City of New York v. Fredericks, 206 N. Y. 618; People v. Yandewater, 250 N. Y. 83.)</p> <p>I. The provisions of the Zoning Ordinance do not permit the use of the premises for the housing of dogs and other kennel purposes as contemplated by the appellant. (.Duryee v. Mayor, 96 N. Y. 477; Kennahan v. City of New York, 162 App. Div. 364; Matter of Assignment of Holbrook, 99 N. Y. 539; People ex rel. Urban Water Supply Co. v. Connolly, 164 App. Div. 163, 213 N. Y. 706; Flynn v. Prudential Ins. Co. of 207 N. Y. 315; Hayden v. Pierce, 144 N. Y. 512; County of Herkimer v. Village of Herkimer, 251 App. Div. 126; St. Luke’s Hospital v. Godet, 171 Mise. 7; People v. Sharp, 107 N. Y. 427; Stradar v. Stern Brothers, 184 App. Div. 700; Blaschko v. Wurster, 156 N. Y. 437; City of Yonkers v. Boro-wits, 222 App. Div. 297.) II. The determination of the Zoning Board of Appeals upon the question of fact of whether the appellant is an eleemosynary institution within the provisions of the ordinance, or the contemplated use of the premises is an eleemosynary use within the intent of the provisions of the Zoning Ordinance, should not he disturbed. (People ex rel. Budson-Harlem Co. v. Walker, 282 N. Y. 400; Matter of Cooper-smith v. Murdock, 262 App. Div. 1032; Matter of Gillespie, Inc. v. Olena, 258 N. Y. 535; Matter of Revorg Realty Co., Inc. v. Walsh, 225 App. Div. 774.) III. In the interpretation or construction of a statute or an ordinance, the intention of its authors should be ascertained. Such a rule cannot disregard the manifest intention of the legislators so as to nullify or override the main purpose and object of the act, or permit an interpretation that leads to an absurdity. (Spencer v. Myers, 150 N. Y. 269 ; Jamison v. Encarnación, 281 U. S. 635.; Wynehamer v. People, 13 N. Y. 378; People v. Ahearn, 196 N. Y. 221; Fisher v. N. Y. C. & B. R. R. R. Co., 46 N. Y. 644; Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314; People ex rel. Cohen v. Butler, 125 App. Div. 384; People ex rel. Cumisky v. Wurster, 14 App. Div. 556.) IV. The provisions of the ordinance are to be given a liberal construction for the purpose of effectuating the objects contemplated. The admonition in statutes or ordinances that they shall be liberally construed to effect the intent of their framers should be followed by the courts, and such construction given to their provisions. (Eagle-Picher Lead Co. v. Mansfield Paint Co., Inc., 203 App. Div. 9; People v. Reilly, 255 App. Div. 109, 280 N. Y. 509; New York County Nat. Bank v. Wood, 169 App. Div. 817, 222 N. Y. 662.)</p>

I. The Court of Appeals did not misapprehend the law. (Grimmer y. Tenement House Department of N. Y., 205 N. Y. 549; Matter of Naylor, 284 N. Y. 188.) II. The respondent misapprehended the law on temporary and provisional commitments. (Sporsa v. German Savings Bank, 192 N. Y. 8; Matter of Cornell, 111 Yt. 525.) III. Relator’s writ and petition as finally submitted to the Special Term attacked only the legality of the commitment of the County Court.

I. The Appellate Division erred in holding that relator’s privilege of operating its railroad across the Hudson river on bridges of tbe Hudson Eiver Bridge Company at Albany is derived from tbe State and not from tbe bridge company. (People ex rel. Grand Trunk By. Go. v. Gilchrist, 248 N. Y. 97; Silliman v. Hudson River Br. Go., 4 Blatcbf. 74; Nicoll v. N. T. & E. B. B. Co., 12 N. Y. 121; Calvary Presbyterian Church v. Putnam, 249 N. Y. Ill; Hudson River Tel.

I. The moving affidavit of the trustee in bankruptcy fails to establish any right or title paramount to that of the judgment creditor. {Lockhart v. Garden City Bank & Trust Go., 116 F. 2d 658; Matter of Toms, 101 F. 2d 617.) II. The trustee in bankruptcy, should have pleaded and proved insolvency at the time the third party order was served. (Bankruptcy Act, § 67; U. S. Code, tit. 11, § 107; Fischer v. Pauline Oil Co., 309 U. S. 294; Liberty Natl.

The evidence entitled the jury to find that control of the ceiling remained with the defendant. (Sendero v. Campbell, 288 1ST. T. 328; Cuttings v. Goetz, 256 N. T. 287.) I. Plaintiffs failed to make out a cause of action, and their complaint was properly dismissed. The landlord may not he held liable to the tenant, or to the latter’s invitee, when a defect existing at the time of lease is known to the lessee or discoverable by the latter on a reasonable inspection.

<p>I. This suit for a declaratory judgment is proper and can be maintained. (Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163, 272 N. Y. 668; Brown v. University of the State of New York, 242 App. Div. 85, 266 N. Y. 598; New York Operators v. State Liquor Authority, 285 N. Y. 272; James v. Alderton Bock Yards, 256 N. Y. 298; Town of Ohio v. People, 264 App. Div. 220.) II. Declaratory judgment should have been granted, declaring that respondent has no power to issue rules and regulations for the conduct of the business of employment agencies, and that the rules and regulations promulgated and enforced by respondent are unreasonable, arbitrary, oppressive and without authority of law. (Matter of Executive Service Corp. v. Moss, 256 App. Div. 345; Matter of Small v. Moss, 277 N. Y. 501, 279 N. Y. 288; Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; Matter of Goelet v. Moss, 248 App. Div. 499, 273 N. Y. 503; Matter of Larkin Co. v, Schwab, 242 N. Y. 330; Darweger v. Staats, 243 App. Div. 380, 267 N. Y. 290; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Seignious v. Bice, 273 N. Y. 44; Brown v. University of the State of New York, 242 App. Div. 85; Schechter Corp. v. United States, 295 U. S. 495; Panama Refining Co. v. Ryan, 293 U. S. 388; Bus Depot Holding Corp. v. Valentine, 288 Y. 115; Matter of International Ry. Co. v. Public Service Comm., 264 App. Div. 506, 289 N. Y. 830.) III. Section 885 of the New York City Charter has no application to this case.</p> <p>I. The commissioner of licenses has statutory authority to establish rules, regulations and administrative procedures in the performance of his duty to enforce article 11 of the General Business Law. (People ex rel. Armstrong v. Warden, 183 N. Y. 223; Matter of Perpente v. Moss, 265 App. Div. 789; Vih of Sara-toga Spgs. v. Saratoga Q., etc., Co., 191 N. Y. 123; Campbell v. City of New York, 244 N. Y. 317.) II. The commissioner has implied authority to make rules which ascertain the facts to which the Legislature’s standards of enforcement apply. (United States v. Bailey, 9 Pet. 238; People v. Delaware & Hudson Canal Co., 165 N. Y. 362; Hannibal Bridge Co. v. United States, 221 U. S. 194; Lloyd Royal Beige, S. A., v. Elting, 61 F. 2d 745, 289 IT. S. 730; Matter of Natelson v. Portfolio, 291 N. Y. 290.) III. The commissioner’s rule-making powers transgress no constitutional prohibition upon delegation of legislative functions. (Mutual Film Gorp. v. Ohio Indus’l Comm., 236 U. S. 230; People ex rel. Doscher v. Sisson, 222 N. Y. 387.) IY. Section 885 of the New York City Charter gives additional broad rule-making powers to the commissioner. {Matter of Friedman v. Valentine, 177 Mise. 437, 266 App. Div. 561; Matter of Natelson v. Portfolio, 291 N. Y. 290; Matter of Creveling & Son Gorp., 259 App. Div. 351.) Y. Rule-making power given by section 885 of the Charter may properly implement the legislative policy and standards of article 11 of the General Business Law. {Baddour v. City of Long Beach, 279 N. Y. 167, 308 U. S. 503; Levy v. Valentine, 173 Mise. 306.) YI. The Commissioner’s rules are appropriate to his enforcement of article 11 of the General Business' Law. (Matter of Picone v. Comr. of Licenses, 241 N. Y. 157; Matter of Small v. Moss, 279 N. Y. 288; Matter of Seignious v. Bice, 273 N. Y. 44; Darweger v. Staats, 267 N. Y. 290; Matter of Village of Boonville v. Malt-tie, 272 N. Y. 40.) YII. No plaintiff is subject to actual or imminent detriment by reason of any assertion of the rule-making power of the License Commissioner; hence no question of constitutionality is presented, and plaintiffs have no right to to equitable relief. (Campbell v. City of New York, 244 N. Y. 317; Jones Beach Boulevard Estate, Inc., v. Moses, 268 N. Y\ 362; Matter of Executive Service Gorp. v. Moss, 256 App. Div. 345; Matter of Corporate Employment Service, Inc., v. Moss, 261 App. Div. 586, 286 N. Y. 601; Matter of Corporate Employment Service, Inc., v. Moss, 263 App. Div. 14, 287 N. Y. 794, 288 N. Y. 584; Headley v. City of Rochester, 272 N. Y. 197; Town of Ohio v. People, 264 App. Div. 220; James v. Alderton Dock Yards, 256 N. Y. 298.)</p>

<p>The appellant is not liable to the respondent on the policy it issued to her husband. (Fuchs v. London & Lancashire Indemnity Go., 171 Mise. 908, 258 App. Div. 603; Materazsi v. Commercial Casualty Ins. Co., 157 Mise. 365; 755 Seventh Ave. Corp. v. Carroll, 266 N. Y. 157; Weatherwax v. Royal Indemnity Co., 250 N. Y. 281; Coster v. Coster, 289 N. Y. 438; Gutta Percha'& R. Mfg. Co. v. Mayor, 108 N. Y. 276; Hellstern v. Hellstern, 279 N. Y. 327; Matter of Whitney & Kitchen, 146 App. Div. 45; Jennings v. Louchs, 163 Mise. 791; Fox v. Employers’ Liability Assur. Corp., 243 App. Div. 325, 267 N. Y. 609; Lorando v. Gethro, 228 Atass. 181.)</p> <p>Under an automobile liability policy, tbe company’s liability must be read as of tbe day of tbe accident and not as of tbe date of tbe judgment. Tbe judgment should be affirmed. (Messersmith v. American Fidelity Co., 232 N. Y. 161; DiMarco v. Ciccone, Inc., 287 N. Y. 601; Green Bus Lines v. Ocean Acc. & Guaranty Corp., 287 N. Y. 309; Brassil v. Maryland Casualty Co., 210 N. Y. 235; Douglas v. United States Fidelity & Guar. Co., 127 A. 708; Rosell v. Rosell, 281 N. Y. 106; New Amsterdam Casualty Co. v. Mandel, 170 A. 19.)</p>

I. The admitted disregard by the village officials of the statutory commands with respect to the enactment of village ordinances renders the purported ordinance establishing a municipal electric plant for the Village of East Rochester void and of no effect.

I. There was a complete absence of proof of the violation of section 484 of the Penal Law. Without such proof that statute obviously is inapplicable and cannot properly be urged as a defense to an admitted'violation of sections 40 and 41 of the Civil Eights Law. II. Assuming but not granting that the defendant may avail itself of section 484 of the Penal Law, the facts show that the statute has been complied with. (People v. Samioick, 127 App. Div. 209.) III.

The Local Laws enacted by the City of New York when they refer to insurance companies refer expressly to mutual or stock companies. The Act does not mention or refer to co-operative assessment associations. Therefore, it was not the intention of the City of New York to tax co-operative assessment associations. (Matter of Good Humor Corporation v. McGoldriclc, 289 N. Y. 452; Gould v. Gould, 245 TJ. S. 151; People ex rel.

I. Eeformation of a contract is improper where mistake is unilateral and no fraud exists. To warrant reformation mistake must be mutual. (Christopher St. B. Co. v. Si. B. Co., 149 Y. 51; Salomon v. North British & M. Ins. Co., 215 N. Y. 214; Metsger v. 2Etna Ins. Co., 227 N. Y. 411.) II. Evidence must be clear, positive and convincing before a contract can be rewritten by the court.

I. The trial court committed reversible error in failing to answer a pertinent inquiry of tbe jurors relating to tbe necessity of intent to kill as an element of murder in tbe first degree. (Code Crim. Pro. § 427; People v. Weiss, 290 N. Y. 160; People v. Flynn, 290 N. Y. 220.) II. It was error for tbe trial court to deny a request of counsel for a sequestration of tbe witnesses. III. Tbe verdict is against tbe weight of tbe evidence. .

<p>I. The appellant was liable for the claims it paid. (Bischoff v. York-ville Bank, 218 N. Y. 106; Grace v. Corn Exchange Bank Trust Co., 287 N. Y. 94; ¿Etna Casualty & Surety Co. v. Catskill Nat. Bank Trust Co., 102 F. 2d 527; Maryland Casualty Co. v. City Nat. Bank, 29 F. 2d 662.) II. The only way respondents could attack the payment made by appellant was by pleading and proving that the payment was made in bad faith with intent to injure respondents. (Halstead Lumber Co. v. Hartford Acc. & Ins. Co., 298 Pac. 925; National Surety Co. v. Casner, 253 S. W. 1057; Fidelity & Deposit Co. of Maryland v. TJiieme, 193 So. 496; Guarantee Co. v. Pitts, 78 Miss. 837; Illinois Surety Co. v. McGuire, 145 N. W. 768; United States Fidelity & Guaranty Go. v. Jones, 87 F. 2d. 346; Continental Gas. Go. v. Nat. Slovak Sokol, 269 N. T. 283; American Bonding Go. of Baltimore v. Alcatraz G. Go., 202 F. 483; National Surety Go. v. Fulton, 192 App. Div. 645 j City of Neio York v. Baird, 176 N. Y. 269.)</p> <p>I. Appellant was required but failed to prove that it was compelled to pay the claim of Trans-Atlantic Passenger Conference or that it acted in good faith in paying said claim. (Lissner v. Haynes Automobile Go., 105 Mise. 359; Bridgeport Insurance Go. v. Wilson, 34 N. Y. 275; Village of Port Jervis v. First National Bk., 96 N. Y. 550; Taylor v. Barnes et al., 69 N. Y. 430; Smith v. Columbia Casualty Co., 225 App. Div. 223; Brescia Construction Go. v. Walart Construction Go., 245 App. Div. 105; Wheeler et al. v. Sweet et al., 137 N. Y. 435; City of New York v. Baird, 176 N. Y. 269; Watterson v. Tremaine, 24 N. Y. S. 2d 830; Hilleary v. Skookum B,oot Hair Grower Go., 4 Mise. 127.) II. The agency agreement required Grace to keep the trust funds separate and apart from all other funds and moneys in his hands. (Bischoff v. Yorkville Bank, 218 N. Y. 106; Grace v. Corn Exchange Bank Trust Go., 287 N. Y. 94.)</p>

<p>I. The plaintiff established a prima facie cause of action against each respondent. (Labor Law, § 241; McNamara v. Eastman Kodak Go., 220 N. Y. 180; Berla v. Zambetti, 235 App. Div. 464; DeEaen v. Bockwood Sprinkler Go., 258 N. Y. 350; Gaminiti v. Mattheios Construction Go., Inc., 241 App. Div. 879; McBickard v. Flint, 114 N. Y. 222; Flanagan v. Carlin Construction Go., 134 App. Div. 236; Meyers v. Barrett, 167 App. Div. 170; Lyles v. Terry & Tench Go., 227 N. Y. 361; Rooney v. Brogan Construction Go., 194 N. Y. 32; Employers’ Liability A. Gorp. v. Post & McCord, 286 N. Y. 254; Sweet Y.Perkins, 196 N. Y. 482.) II. The Appellate Division was in error in holding that the testimony of the plaintiffs’ witness Marino was incredible as a matter of law. (Tarter v. Z7. S., 17 F. Supp. 691; Schramme v. Lewinson, 126 App. Div. 279.)</p> <p>I. Defendant Funt conformed with all obligations resting upon him under the law. (Gaspersen v. La Sola Bros., 253 N. Y. 491; Ithaca Trust Go. v. Driscoll Brothers & Co., 169 App. Div. 377.) II. The trial court was justified in dismissing the complaint as a verdict for plaintiffs would have had to he set aside. (Bank, of United States v. Manheim, 264 N. Y. 45; Serina v. New York Railways Corporation, 238 App. Div. 302; Matter of Case, 214 N. Y. 199; Drummond v. Norton, 156 App. Div. 126.)</p> <p>I. The evidence," considered as a whole, established so clearly and convincingly that no steel work was in fact being-erected above the tier of steel beams that any verdict based on a contrary finding must necessarily have been set aside. (Matter of Case, 214 N. Y. 199.) II. Sunrise Iron Works, Inc., was not constructing the building. (Lotocka v. Elevator Supplies Co., 246 N. Y. 295.)</p>

I. Upon the found and approved facts and because of the malicious acts of the defendants Lekas and Katsoris that frustrated and destroyed the voting trust plan, plaintiff is entitled to have the voting trust provisions of the settlement agreements nullified and his stock returned to him, or Lekas & Drivas, Inc. dissolved or both. (Harrington v. Harrington, 290 N. T. 126; Kroger v. Jaburg, 231 App.

<p>I. The question of parity in this case is to be determined by the laws of the State of New York. (Prudence Corp. v. Qeist, 316 IJ. S. 89; Pink v. Thomas, 282 N. Y. 10; Matter of Title & Mortgage Guaranty Co., 275 N. Y. 347; Heivit v. Berlin Machine Works, 194 U. S. 296; Security Warehousing Co. v. Hand, 206 U. S. 415; Van Glider v. Barnes, 288 Mich. 492; Union Trust Co. v. Willsea, 275 N. Y. 164; Sherman v. Buckley, 119 F. 2d 280; Foust v. Munson S.S. Lines, 299 U. S. 77; Thompson v. Magnolia Co., 309 U. S. 478; Palmer v. Larchmont Manor Co., 284 N. Y. 288; Matter of Title & Mortgage G%t,aranty Co., 275 N. Y. 347; Chicot County Dist. v. Bank, 308 TJ. S. 371; People ex rel. C. P., etc., B. B. Co. v. Willcox, 194 N. Y. 383; Beck v. Bauman, 187 App. Div. 774.) II. The Burnside certificates held by Prudence are subordinate to those publicly held. (Pink v. Thomas, 282 N. Y. 10; Matter of Lawyer’s Title & Guaranty Co., 287 N. Y. 264; Matter of Title .& Mortgage Guaranty Co., 275 N. Y. 347; Title G. & T. Co. v. Mortgage Comm., 273 N.'Y. 415; Matter of People [Union Guar. & Mtg. Co.], 285 N. Y. 337.)</p> <p>I. Prudence Corp. v. Geist, 316 U. S. 89, requires subordination of the certificates acquired by the defaulting guarantor under the circumstances of the present case. (American Ins. Co. v. Avon Park, 311 II. S. 138; Matter of Prudence-Bonds Corporation, 102 F. 2d 531.) II. The reservations in the two reorganization plans require that the question of parity be now determined in accordance with the law applicable to the relations existing among the certificate holders and the guar-autor, as of a time just prior to the latter’s bankruptcy. (Matter of Title & Mortgage Guaranty Co., 275 N. Y. 347; Pink v. Thomas, 282 N. Y. 10; Matter of People [Union Guar. & Mtg. Go.'], 285 N. Y. 337; Matter of Lawyers Title & Guaranty Co., 287 N. Y. 264; Smith v. Chase Nat. Bank of City of New York, 84 F. 2d 608; Matter of Moose River Lumber Co., 251 F. 409; Hanlon v. Union Bank of Medina, 247 N. Y. 389; McGrath v. Carnegie Trust Co., 221 N. Y. 92; American Surety Company of New York v. Gerold, 255 App. Div. 285; New Jersey Equities Co. v. Mandel, 178 Mise. 783.) III. Subordination under the circumstances of this case will not violate the bankruptcy rule of equality of distribution. (Taylor v. Standard Gas Co., 306 U. S. 307; Pepper v. Litton, 308 IT. S. 295; Prudence Corp. v. Geist, 316 IT. S. 89; Bank of America Nat. Trust & Sav. Assn. y. Erickson, 117 F. 2d 796; Matter of Allied Properties Co., 118 F. 2d 773.)</p> <p>I. The question of parity of Prudence certificates is a Federal question as to which the Bankruptcy Act (IT. S. Code, tit. 11) and the Federal decisions are controlling. (Prudence Corp. v. Geist, 316 IT. S. 89; Matter of New York Title & Mortgage Co., 277 N. Y. 66; Ivanhoe Bldg. Assn. v. Orr, 295 IT. S. 243; Matter of New York Title & Mortgage Co., 160 Mise. 67; Bremen v. Dahlstrom Metallic Boor Co., 189 App. Div. 685; Frank v. Mercantile National Bank, 182 N. Y. 264; Cassedy v. Johnstown Bank, 246 App. Div. 337; Schneck v. Lewis, 121 Mise. 370, 210 App. Div. 845; Sturm v. Chatham & Phenix National Bank, 121 Mise. 47; Erie R. Co. v. Tompkins, 304 IT. S. 64; Awotin v. Atlas Exchange Bank, 295 IT. S. 209; Local Loan Co. v. Hunt, 292 IT. S. 234; Brooklyn Trust Co. v. Kelby, 134 F. 2d 105; Jennings v. Z7. S. F. & G. Co., 294 IT. S. 216.) II. No conflict exists between decisions of the Court of Appeals and the United States Supreme Court with respect to the issues here involved. (Matter of Title & Mortgage Guarantee Co., 275 N. Y. 347.) III. Assuming, arguendo, that the decision of the United States Supreme Court is not controlling, the certificates held by Prudence Realization Corporation are entitled to parity under the New York law.</p>

<p>I. A fatal variance exists between the indictment and tbe proof which was not cured by tbe People’s motion to conform tbe indictment to tbe proof in relation to tbe ownership of tbe money alleged to have been extorted and the indictment should have been dismissed. (Peo-pie v. Kelley, 127 Mise. 300; People v. 'Dmnar, 106 N. Y. 502; People y. Corbalis, 178 N. Y. 516; People v. Grogan, 260 N. Y. 138; People v. Bloom, 263 App. Div. 821; People v. Mot ello, 157 App. Div. 510; People v. Bromwich, 200 N. Y. 385; People v. Faw Every, 222 N. Y. 74; PeopZe v. Mies, 289 N. Y. 360; People'v. Clurman, 290 N. Y. 242.) II. The conduct of the District Attorney in cross-examining character witnesses was highly prejudicial and improper and the defendant’s motion for a new trial itpon that ground should have been granted. (.People v. Callahan, 151 App. Div. 666.) III. The trial court failed to comply with the provisions of section 450 of the Code of Criminal Procedure and the defendant’s right to have the jury polled was impaired. IV. The defendant’s guilt was not established beyond a reasonable doubt as a matter of law.</p> <p>I. The evidence is sufficient to sustain the verdict, as a matter of law. II. The alleged variance between the indictment and the proof was not material and the granting of the motion to conform was not prejudicial to the defendant. (People v. Geyer, 196 N. Y. 364; People v. Hagan, 37 St. Rep. 660; People v. Herman, 45 People v. Dunn, 53 Hun 381; People v. Johnson, 104 N. Y. 213; People v. Kellogg, 105 App. Div. 505; People v. Fleming, 60 Hun 576; People v. Barondess, 133 N. Y. 649.) III. The cross-examination of the character witnesses was proper. (People v. Laudiero, 192 N. Y. 304; 71 A. L. R. 1504; People v. Saul, 188 App. Div. 25.) IY. No claim of error may be predicated upon the manner in which the jury was polled. (Green v. Bliss, 12 How. Pr. 428.)</p>

I. The court erred in admitting much unconnected and irrelevant evidence of a fatally prejudicial character, over defendants’ objections and exceptions and motions to strike and for the declaration of a mistrial. Though this evidence -ultimately was stricken at the end of the trial before the case was submitted to the jury, it constituted such prejudice that defendants, in consequence, did not have the fair and impartial trial to which they were entitled.

I. The order of the court below, insofar' as it directs the election of two assemblymen at large from one Assembly district, is unconstitutional and erroneous. (Matter of Burns v. Flym%, 155 Mise. 742, 245 App. Div. 799, 268 N. Y. 601.) II. The ordinance adopted violates the mandatory prohibition against the division of á town and is therefore a nullity.

<p>I. That the trial court had the right, in his discretion, to set aside the verdict of the jury and grant a new trial, as against the weight of the evidence, is not now disputed; hut for him to determine all questions of fact adversely to the defendant and deprive the defendant of a trial, is contrary to the constitutional provision'. It is only where the evidence is insufficient in law, or where it is incredible because opposed to natural laws, that the court may make a decision. (N. Y. Const., art. 1, § 2; Imbrey v. Prudential Insurance Go., 286 N. Y. 434; Caldwell v. Nicolson, 235 N. Y. 209; Fox v. Le Comte, 2 App. Div. 61, 153 N. Y. 680; Slomka v. Nassau Electric Railroad Go., 191 App. Div. 727; Fealey v. Bull, 163 N. Y. 397; Galloway v. United States, 63 Sup. Ct. Rep. 1092; Gunning v. Cooley, 281 U. S. 94; Tarter v. United States. 17 F. Supp. 691; Ridgely v. Taylor & Co., 126 App. Div. 303; Callanan v. Shaw, 24 Iowa 441; Getty v. Williams Silver Co., 221 N. Y. 34; Hedeman v.. Fairbanks, Morse & Co., 286 N. Y. 240; McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66.) II. The provisions of section 457-a of the Civil Practice Act, as enacted in 1940, did not abrogate the constitutional right to a trial by jury. {Hedeman v. Fairbanks, Morse & Co., 286 N. Y. 240; Imbrey v. Prudential Insurance Co., 286 N. Y. 434; Thomas v. City of New York, 285 N. Y. 496.)</p> <p>I. Defendant failed to prove the cause of action alleged in its answer and hill of particulars. The testimony of its sole witness is utterly incredible. The trial court properly directed a: verdict. (Civ. Prac. Act, § 457-a; Weigand v. United Traction Co., 221 N. Y. 39; Matter of Bennett, 238'N. Y. 583; Graley v. American Eagle Fire Ins. Co., 235 App. Div. 490; Linkhauf et al. v. Lombard et al., 137 N. Y. 417; Bank of U. S. v. Man-heim, 264 N. Y. 45; State Bank v. Siff, 228 App. Div. 2, 254 N. Y. 627.) II. Section 457-a of tlie Civil Practice Act is only a codification of previous law. (Bank of United States v. Mannheim, 264 N. Y. 45.) III. Section 457-a of the Civil Practice Act is constitutional. The United States courts, and the courts of certain other states, have upheld the legality of a direction of a verdict by a jury in cases where a contrary verdict would be set aside as against the weight of evidence. (4 Carmody’s N. Y. Practice, § 1358; Small Co. v. Lamborn & Co., 267 U. S. 248; Delaware Railroad v. Converse, 139 U. S. 469 Bowditch v. Boston, 101 U. S. 16; Pleasants v. Fant, 89 U. S. 116; Denny v. Williams, 87 Mass. 1; Davis v. Maxwell, 53 Mass. 286; Conner v. Giles, 76 Me. 132; Ketterman v. R. R. Co., 48 West Ya. 606.)</p>

I. The bond is a Tennessee contract and the liability thereunder must be determined according to the law of Tennessee. The bond involved in this case has been held to be a statutory bond by the Tennessee court.

I. Delivery of the negotiable instrument to plaintiff, consummated an executed sale; and thenceforth plaintiff could not go behind the negotiable instrument to rescind the exécuted transaction by which plaintiff had purchased the instrument. (American Express Go. v. Cosmopolitan Trust Go., 239 Mass. 249; Gravenhorst v. Zimmerman, 236 N. Y. 22; Moe v. Bank of United States, 211 App. Div. 519; Auerbach v. Barrett, 214 App.

I. Defendant’s policy specifically insured against larceny and the defendant is therefore hound to pay for a loss sustained as a result of a larceny. (.Edwards v. Maryland Motor Gar Insurance Go., 204 App. Div. 174; Bolling v. Northern Insurance Go. of N. App. Div. 693; Bose v. Balfe, 223 N. Y. 481; Van Vechten v. American E. F. Ins. Go., 239 N. Y. 303; People v. Seychew, 257 App. Div. 3033; Bose v. Bristol, 174 App.

The failure of the complaint to allege that plaintiffs’ testator was the owner of the bonds at the time of the commencement of the action is not a fatal defect and it is sufficient that the plaintiff was the owner of the bonds at the time of the alleged acts of gross negligence by the defendant. The filing of the bonds with the receiver of the guarantor of said bonds with all unpaid coupons attached did not divest plaintiffs’ testator of the causes of action herein.

The will directs that all dividends he treated as income regardless of the effect thereof upon principal. (Matter of Osborne, 209 N. Y. 450; United States Trust Go. v. Eeye, 224 N. Y. 242; Equitable Trust Go. v. Prentice, 250 N. Y. 1; Baker v. Thompson, 181 App. Div. 469, 224 N. Y. 592; Lowry v. Farmers’ Loan & Trust Go., 172 N. Y. 137; Robertson v. de Brulatour, 188 N. Y. 301; Matter of Mart, 139 Mise. 558; Matter of Rowland, 273 N. Y. 100; Matter of Enz, 204 App.

I. The motion to dismiss the complaint under subdivision 5 of rule 106 of the Buies of Civil Practice must be denied because the complaint states a good cause of action at law for money had and received. (Hall v. Prudential Insurance Co., 72 Mise. 525, 148 App. Div. 934; Port v. Holzinger, No. 1, 212 App. Div. 124; Columbian Laundry v. Hencken, 203 App. Div. 140; Parkway Laundry Service, Inc., v. Becker, 257 App.

The trial court properly withheld from defendant-respondent tbe benefit of bis defense of ownership of tbe automobile by Peltier aid it was error for tbe Appellate Division to reverse tbe judgment of tbe trial court. (Ferris v. Sterling, 214 N. Y. 249; Buono v. Stewart Motor Trucks, Inc., 261 App. Div. 1095; Longley y. Goons, 244 App. Div. 391, 268 N. Y. 712; Noble v. City of Palo Alto, 89 Cal. App. 47; Allen y. Ennis, 253 App.

I. Defendant was deprived of his right to a fair trial by the concealment of the names of witnesses by the District Attorney on the selection of the jury. (People v. Hughes, 137 N. Y. 29; People v. Grieco, 266 N. Y. 48; The People v. Casey, 96 N. Y. 115; People v. McQuade, 110 N. Y. 284; People v. Hull, 251 App. Div. 40; Gulf & Railway Co. v. Shane, 157 II.

<p>I. Plaintiff failed to prove a cause of action. A letter written by defendant to plaintiff’s husband after adjudication of defendant in bankruptcy and before his discharge, contained the following sentence: still hope for such improvement as to enable me to pay up to the last cent whatever its coming to yon and Lottie.” There was no promise by defendant in this sentence to pay to the plaintiff at any time*the amount of his indebtedness. Defendant merely expressed a hope that his financial condition would so improve as to enable him to pay up. (Personal Property Law, § 31; Lawrence et al. v. Harrington, 122 N. Y. 408; Herrington v. Davitt, 220 N. Y. 162; Gain v. Dunn, 243 App. Div. 849; Allen & Go. v. Ferguson, 85 U. S. 1; Scheper v. Briggs, 28 App. Div. 115; Kiernan v. Fox, 43 App. Div. 58; Mandell & Co. v. Levy, 47 Mise. 147.) II. A partial payment on account of a debt which has been discharged in bankruptcy is not sufficient to </p> <p>I. The indebtedness of defendant to plaintiff was revived by a new promise within the Statute of Frauds. (Seymour v. Warren, 179 N. T. 1; Marks v. 226 N. Y. 138; Tioga County General Hospital v. Tidd, 164 Mise. 273; Stokes v. Sanders, 181 App. Div. 249; Lawrence et al. v. Harrington, 122 N. Y. 408; Taft v. Sergeant, 18 Barb. 320.) II. The defendant’s letter to plaintiff expressing “ a hope for such improvement as to enable me to pay up to the last cent whatever its coming to you ” revived-the indebtedness either as an independent written promise, or as the memorandum supporting his prior verbal promise. (Collier on Bankruptcy, 5th ed. p. 644.) III. The Statute of Frauds should not be so applied as to sanction the very fraud it is designed to prevent. (First Nat. Bank v. Lafayette Trust Co., 85 Mise. 341; Baum v. Holstein, 93 Mise. 268; Wagner v. Manufacturers Trust Co., 237 App. Div. 175, 261 N. Y. 699; Mutual Reserve Fund Life Ass’n v. Beatty, 93 F. 747, 35 C. 0. A. 573; Mandell Co. v. Levy, 47 Mise. 147; Collier on Bankruptcy, 5th ed., p. 217.) IV. The Statute of Frauds should be construed as a rule of reason. (Sunhy Realty Corp. v. Cross Bay Lumber Co., 165 Mise. 534; Van Valkenburg v. Croffut, 15 Hun 147; Berth v. W. G. Knapp Co., Inc., 215 App. Div. 693; Suren v. Handel, 205 App. Div. 829; Marks v. Cowdin, 226 N. Y. 138; Seymour v. Warren, 179 hi. Y. 1.)</p>

<p>I. The trial court erred in charging that the plaintiff Gustavson could not recover against the defendant railroad company in the event that the jury found that the accident occurred while the automobile of the defendant Lipton was in motion at the time of the accident. (Rothschild v. Harris, 125 N. Y. S. 41; Boynton v. Boynton, 43 How. Pr. 380.) II. There was no error in the trial court’s refusal to charge that if the car was in motion, there should be a verdict in favor of Lipton as against Gustavson. (Lynch v. 155 N. T. S. 271; Golisano v. Crisafulli, 190 N. Y. S. 24; Miller v. Katz, 256 N. Y. S. 654; Matthews v. Reilly, 233 N. Y. S. 825; Rosenberg v. Third Avenue, 61 N. Y. S. 1052; Roland v. International Railway Company, 136 N. Y. S. 290; Baltimore Ohio R. R. Co. v. Long Island B, R. Co., 126 Mise. 474.) III. The trial court did not err in its ruling that counsel for the defendant Lipton should offer his summation before the summation of counsel for the railroad company. (Van.Devort v. K. & II, Evaporating Company, Inc., 252 App. JDiv. 8; Tarbell v. Howard, 162 Mise. 606; Kappa Frocks, Inc., v. Alan Fabrics Corp., 263 App. Div. 326; Crescent Puritan Laundry Company, Inc., v. McNamara, 254 App. Div. 646; Phil-or Textile Shrinking Corp. v. Monarch T. 8. Corp., 160 Mise. 610.) IV. As against Gustavson only, the trial court erred in charging’ the jury, as requested by the defendant railroad company, that the trolley car had the paramount right of way. (Southee v. Binghamton Railway Co., 168 App. Div. 605, 222 N. Y. 640; Black v. Staten Island Electric R. R. Co., 40 App. Div. 238; Frank v. Metropolitan Street R. Co., 91 App. Div. 485; Dietrich v. Brooklyn Heights Railroad Go., 123 App. Div. 604; Doctoroff v. Metropolitan Street Ry., 105 N. Y. S. 229.)</p> <p>I. The trial court erred in charging the jury, as requested by tbe defendant railroad, that tbe trolley car bad tbe superior and paramount right of way over tbe trolley tracks at tbe point where tbe collision occurred. (Southee v. Binghamton Railway Go., 168 App. Div. 605, 222 N. Y. 640; Black v. Staten Island Electric R. R. Go., 40 App. Div. 238; Frank v. Metropolitan Street R. Go., 91 App. Div. 485; Dietrich v. Brooklyn Heights Railroad Go., 123 App. Div. 604.) II. Tbe trial court erred in refusing to charge that G-ustavson, could not recover against defendant Lipton, in tbe event that tbe jury found that tbe automobile was in motion at tbe time of tbe collision. (Lifton v. Title Guarantee & Trust Go., 263 App. Div. 3; Ehrenreich v. Berkowits, 225 App. Div. 68; Burger v. Fifth Ave. Coach Go., 249 N. Y. 583; Fuchs v. Brody, 282 N. Y. 627.) III. Tbe trial court committed prejudicial error in compelling counsel for Lipton to offer summation before tbe defendant railroad, not only because Lipton bad tbe affirmative in action No. 2, but because counsel bad tbe right to make their closing arguments in tbe reverse order to that in which they opened. (Millerd v. Thorn, 56 N. Y. 402; Parrish v. Sun Publishing Ass’n., 6 App. Div. 585; Bender v. TenviUiger, 48 App. Div. 371, 166 N. Y. 590.)</p> <p>I. Tbe trial court did not err in charging in effect as requested by counsel for tbe defendant railroad company that if tbe jury found that tbe accident did not happen in tbe manner and in accordance with plaintiffs ’ theory of tbe accident as advanced by them on tbe trial, but instead that it happened in tbe manner testified to by defendant railroad company’s witnesses, their verdict should be in favor of tbe railroad company. (Lifton v. Title Guarantee & Trust Co., 263 App. Div. 3; Ehrenreich v. Berkowits, 225 App. Div. 68; Fuchs v. Brody, 282 N. Y. 627; Lannone v. Weber-McLoughlin Co., 186 App. Div. 594.) II. There was no error in tbe trial court’s charge that at tbe point where tbe accident happened, being between street intersections, tbe railroad company has the. superior or paramount right of way over its tracks and that tbe jury may consider that in taking up tbe question of liability. (O’Neil v. D. D. E. B. & B. R. R. Go. et al., 129 N. Y. 125; Moore v. Rochester Railway Co., 204 N. Y. 309; Union Railway Go., 243 N. Y. 249; Ward v. Clark, 232 N. Y. 19.5.) III. The trial court did not err in its ruling that counsel for Lipton should offer his summation before the summation of counsel for the railroad company. (Van Devort v. K. & R. Evaporating Company, Inc., 252 App. Div. 8; Tarbell v. Roward, 162 Mise. 606; Kappa Frocks, Inc., v. Alan Fabrics Corp., 263 App. Div. 326; Crescent Puritan Laundry Company, Inc., v. McNamara, 254 App. Div. 646; Phil-or Textile Shrinking Corp. v. Monarch T. S. Corp., 160 Mise. 610.)</p>

I. The testatrix gave and the life tenant possessed an absolute power of disposition for his own benefit. (Wells et al. v. Wells et al., 88 N. Y. 323; Matter of Drury, 249 N. Y. 154; Matter of Horner, 237 N. Y. 489; Matter of Gallien, 247 N. Y. 195.) II. The mortgage to the bank is valid under section 149 of the Peal Property Law. (Farmers’ Loan & Trust Go. v. Kip, 192 N. Y. 266; Stafford v. Washburn, 145 App.

Tbe County Court bad tbe power to place tbe defendant-appellant on probation and erroneously held that it lacked such power. (Code Crim. Pro. § 764.) Upon tbe appeal from tbe judgment of conviction tbe County Court, as an appellate court, bad no power to suspend execution of sentence and, or, place tbe defendant-appellant on probation. (People v. MacKenzie, 69 Mise. 540; People v. Finucan, 151 App. Div. 92; People v. Dinehart, 155 App. Div. 687; People v. Maher, 92 Mise. 50.)

<p>The judgment in the Schaeffler case does not bar this action. (Jasper v. Rosinski, 228 N. T. 349; Lien Co. v. 213 N. Y. 9; Merchants’ Rank v. Thomson et al., 55 N. Y. 11; Emigrant Industrial Savings Ramie v. Goldman, 75 N. Y. 127; Second National Rank of Gooperstown v. Calvert, 152 Mise. 884; Mal-loney v. Koran, 49 N. Y. Ill; Schuylkill Fuel Gorp. v. Nieberg Realty Corp., 250 N. Y. 304; Rrown v. Gallaudet, 80 N. Y. 413; Rosenberg v. Slotchin, 181 App. Div.'137; Robinson v. Whitaker Nos. 1-4, 205 App. Div. 286; Stannard v, Kubbell, 123 N. Y. 520.)</p> <p>Appellant is barred in this action by tbe rule of res judicata since tbe same facts upon which relief is sought were pleaded in a prior action between tbe same parties. Tbe same issues are now involved and tbe relief now sought would impair or destroy tbe judgment rendered in favor of respondent in the prior action. (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. T. 304; Hellstern v. Hellstern, 279 N. T. 327; Pray et al. v. Hegeman et al., 98 N. T. 351; Butterly v. Maribert Realty Corp., 234 App. Div. 424, 260 N. T. 554; Elna Realty Co., Inc., v. Mamaquarro Apartments Corp., 234 App. Div. 105; Jordan v. Van Epps, 85 N. T. 427; 1 Wiltsie on Mortgage Foreclosures, 5th ed., § 148.)</p>

I. The authority granted by treaty to the Consul-General of the Republic of Poland to appear for heirs and legatees in the administration and distribution of estates embraces the right to appear in behalf of a surviving spouse. (Bocea v. Thompson, 223 U. S. 317; Matter of D’Adamo, 212 N. T. 214.) II.

I. The preference took place on November 28, 1940, the date when the hank’s records indicate the sum of $150,000 was withdrawn from the bankrupt’s account. II. Until the respondent complied with section 3477 of the Revised Statutes of the United States, as amended October 9, 1940 (U. S. Code, tit. 31, § 203), the assignment in suit was null and void.

<p>I. The confession of Malinski should have been excluded; its admission presents material and prejudicial error requiring a reversal of the judgment of conviction. (People v. Pantano, 239 N. Y. 416; People v. Pignataro, 263 N. Y. 229.) II. The lawless practice of police officers in failing to comply with the procedure set forth in section 165 of the Code of Criminal Procedure has been condemned. (People v. Doran, 246 N. Y. 409; People v. Cohen, 243 App. Div. 245; People v. Mummiani, 258 N. Y. 394; People v. Alex, 265 N, Y. 192; People v. Elmore, 277 Y. 397.) III. The court should reverse the judgment herein, emphasizing the influence that the illegal conduct^ of the police has in its action, and condemn the conduct of the District Attorney for approving this illegal police action. This court should proclaim a rule that henceforth all confessions obtained from persons illegally detained in custody be excluded and this rule rigidly enforced. (McNabb v. United States, 318 U. S. 332; Anderson v. United States, 318 U. S. 350.) IV. The guilt of defendant Malinski was not established beyond a reasonable doubt. (People v. Crum, 272 Y. 348; People v. Goldberg, 281 N. Y. 855; People v. Lewis, 275 N. Y. 33; People v. Becker, 210 N. Y. 274; People v. Davino, 288 N. Y. 423; People v. Feolo, 284 N. Y. 381; People v. Ledwon, 153 N. Y. 10.) V. The witnesses Yellin and Spielfogel are both accomplices as a matter of law. The finding that Spielfogel was not an accomplice is contrary to the evidence and against the weight of the evidence. (People v. Sweeney, 213 N. Y. 37; People v. Cohen, 223 N. Y. 406; People v. Clougher, 246 N. Y. 106; People v. Swersky, 216 N. Y. 471; People v. Zacko-wits, 254 N. Y. 192; People v. Kress, 284 N, Y. 452.) VI. The witness Kovner was an accomplice and the court erred when it charged the jury that Kovner is not either in law or in fact an accomplice. (People v. Rosenthal, 289 N. Y. 482; People v. Walker, 198 N. Y. 329.) VII. Appellant Malinski was entitled to a fair trial. The trial which he received is a reproach to the administration of justice. (People v. Malkin, 250 N. Y. 185; People v. Zachowitz, 254 N. Y. 192; People v. Richardson, 222 N. Y. 103; People v. Russell, 266 N. Y. 147; People v. Kress, 284 N. Y. 452; People y. Wolf, 183 N. Y. 464; People v. Ferguson, 245 App. Div. 837; People v. Elbroch, 250 App. Div. 583; People v. Esposito, 224 N. Y. 370; People v. Johnson, 284 N. Y. 182; Vierech v. United States, 318 U. S. 236.) VIII. The court erred in its charge to the jury to the prejudice of appellant Malinski. (Code Grim. Pro. § 393A; People v. Rakiec, 289 N. Y. 306; People v. Minnaugh, 131 N. Y. 563; People v. Rreen, 181 N. Y. 493; People v. Stern, 201 App.' Div.. 687; Matter of Eno, 196 App. Div. 131; People v. Weiss, 290 N. Y. 160.)</p> <p>I. The indictment was a nullity. It was found on the uncorroborated testimony of an accomplice. There was no corroborating testimony connecting the defendant Rudish, with the crime. The motion of said defendant, to dismiss the indictment because based only upon the uncorroborated testimony of an accomplice, should have been granted. Its denial is reversible error. (People v. Nitzberg, 289 N. Y. 523; People v. May, 158 Mise. 488; People v. Willett, 213 N. Y. 368; The People v. D’Argencour, 95 N. Y. 624; People v. Wiechers, 179 N. Y. 459; People v. Sweeney, 213 N. Y. 37; People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; United States v. Coolidge, 2 Gallison 393; People v. Walsh, 262 N. Y. 140; People ex rel. Lemon v. Supreme Cou,rt, 245 N.. Y. 24; People ex rel. Eirschberg v. Supreme Court, 269 N. Y. 392.) II. The witnesses Yellin and Spielfogel are both accomplices as a matter of law. The finding that Spielfogel is not an accomplice is contrary to the evidence and against the weight of evidence. There was no evidence against the defendant Rudish, except that of accomplices, and it was reversible error to deny the motion to direct a verdict in favor of said defendant. (People v. Sweeney, 213 N. Y. 37; People v. Cohen, 223 N. Y. 406; People v. Clov,gher, 246 N. Y. 106; People v. Swershy, 216 N. Y. 471; People v. Zachowitz, 254 N. Y. 192; People v. Kress, 284 N. Y. 452; People v. Demasco, 240 N. Y. 170; People v. Ledwon, 153 N. Y. 10.) III. The guilt of defendant Rudish, was not established beyond a reasonable doubt. The verdict of guilty as to Rudish was contrary to the evidence and against the weight of evidence. (People v. Crum, 272 N. T. 348; People v. Weiss, 290 N. Y. 160; People v. Kress, 284 N. Y. 452; People v. Malkin, 250 N. Y. 185; People v. Plover, 232 N. Y. 264; People v. Manganaro, 218 N. Y. 9; People v. Watson, 216 N. Y. 565; Viereck v. United States, 318 U. S. 236; People v. Lewis, 275 N. Y. '33; People v. Becker, 210 N. Y. 274; People v. Feolo, 284 N. Y. 381.) IV. The confession of defendant Malinski, should have been excluded, as a matter of law. Its admission was highly prejudicial to defendant Rudish. It was a denial of “ due process ” under the Fourteenth'Amendment to the Constitution of the United States, and section 6 of artcile VI of the State Constitution, and requires the reversal of the judgment as to him. (People v. Mummiani, 258 N. Y. 394; People v. Elmore, 277 N. Y. 397; People v. Alex, 265 N. Y. 192; People v. Cohen, 243 App. Div. 245; People v. Trybus, 219 N. Y. 18; People v. Doran, 246 N. Y. 409; McWabb v. United States, 318 U. S. 332; People v. Barbato, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118; People v. Kelly, 264 App. Div. 14.) V. The trial court’s charge was inadequate in several respects. The failure more fully to instruct the jury regarding the Jalkover and Shamin incidents, the testimony of Holingsworth, as to Spielfogel’s status as an accomplice, and as to the duty of the police to arraign the defendants without unnecessary delay after arrest, all constitute reversible error. (People v. Odell, 230 N. Y. 481; People v. Fanning, 131 N. Y. 659.)</p> <p>I. The'indictment is not a nullity. An indictment as a court record imports absolute verity until properly impeached and the presumption attaches that it was based upon legal and sufficient evidence in the absence of satisfactory proof to the contrary. (People v. Nitsberg, 289 N. Y. 523; People v. Sweeney, 213 N. Y. 37; People v. Glen, 173 N. Y. 395.) II. Spielfogel was not accomplice as a matter of law and the court properly left his status to the jury. (People v. Swersky, 216 N. Y. 471.) I'll. Malinski’s confession was properly received in evidence. (People v. Doran, 246 N. Y. 409; People v. Mummiani, 258 N. Y. 394; People v. Alex, 265 N. Y. 192; People v. Poulin, 207 N. Y. 73; People v. Smith, 180 N. Y. 125; People v. Bimieri, 180 N. Y. 163.) TV. Other Budish. contentions with respect to Malinski’s confession as it affected Bndish and the Jalkover and Shamin “ incidents ” are unfounded. V. The trial court’s charge was adequate in all respects.</p>

I. The evidence does not sustain a felony murder. (People v. Mummiani, 258 N. Y. 396; Code Crim. Pro. § 165; People v. Alex, 265 N. Y. 192.) II. The verdict was so expressed that the trial court could not carry out the sentence contemplated by the jury.

<p>I. Corroboration was lacking as to bo.th the 1935 and 1937 transactions. (Code Crim. Pro. § 399; People v. Goldstein, 285 N. Y. 376; People y. Reddy, 261 N. Y. 479; People v. Munroe, 190 N. Y. 435.) II. Evidence implying the commission by this defendant of another unrelated crime was improperly admitted. (People v. Molineux, 168 N. Y. 264; People v. Zucker, 20 App. Div. 363, 154 N. Y. 770; People v. Montana, 252 App. Div. 109.) III. The trial court also erred in admitting evidence of two other alleged crimes. (People v. Molineux, 168 N. Y. 264; People v. Montana, 252 App. Div. 109.)</p> <p>I. It was reversible error to admit in evidence a chain of acts and transactions of criminal or tainted character, not charged in the indictment, unconnected and unrelated to the transactions constituting the alleged crimes therein charged. (People v. Harvey, 235 N. Y. 282; People v. Sharp, 107 N. Y. 427; People v. Molineux, 168 N. Y. 264; People v. Romano, 84 App. Div. 318; People v. Zucker,' 20 App. Div. 363,154 N. Y. 770.) II. The corroborative evidence was insufficient as a matter of law. There was no direct proof of the receipt by Mullens from Burland of any moneys. (People v. Kress, 284 N. Y. 452;' The People v. Kennedy, 32 N. Y. 141; Lamb v. Union Ry Go., 195 N. Y. 260; Bichardson on the Law of Evidence, 3rd ed. § 111; People v. Buchalter, 289 N. Y. 181; People v. Rasesics, 206 N. Y. 249.)</p> <p>I. The guilt of the defendants was proved beyond a reasonable doubt. (People v. Peller, 291 N. Y. 438; People v. Pesky, 254 N. Y. 373; Penal Law, § 2; People v. McKane, 143 N. Y. 455; People v. Jackson, 182 N. Y. 66; People v. Birnbaum 208 App. Div. 476; Wilson v. United ’States,' 162 U. S. 613.) The whole case need not be proved outside of the testimony of the accomplice. (People v; Buchalter, 289 N. Y. 181; People v. Nitsberg, 287 N. Y. 183; People v. Goldstein, 285 N. Y. 376; People v. Kress, 284 N. Y. 452; People v. Cohen, 223 N. Y. 406; The People v. Hooghkerk, 96 N. Y. 149.) II. The corroborative evidence is sufficient if it lends to connect the defendant with the commission of the crime in snch a way as may reasonably satisfy the jury that the accomplice is telling the truth about his participation therein. {People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111.) III. There was ample corroborative evidence. {People v. O’Neil, 48 Hun 36, 109 N. Y. 251; People v. Furlong, 140 App. Div. 179, 201 N. Y. 511; People v. Hines, 284 N. Y. 93; People v. Connolly 253 N. Y. 330; People v. Jackerson, 247 N. Y. 36; People v. Elliott, 106 N. Y. 288; People v. Elbroch, 250 App. Div. 583.) IY. The defendants’ guilt under counts 3 and 6, covering the 1937 transaction was established. {Kerr v. Kerr, 134 App. Div. 141; People v. Becker, 215 N. Y. 126; People v. O’Neil, 48 Hun 36, 109 N. Y. 251; People v. Gaffey, 182 N. Y. 257; Campanelli v. United States, 13 P. 2d 750; People v. Sweeney, 161 App. Div. 221, 213 N. Y. 37.) V. Evidence of other transactions involving Charles "Walsey and the defendants, bearing upon various phases of the case, was properly received. {People v. Johnston, 228 N. Y. 332; Lindsay v. People of the State of N. Y., 63 N. Y. 143; People v. Duffy, 160 App. Div. 385, 212 N. Y. 57; Terry v« United States, 51 P. 2d 49; Clune v. United States, 159 U. S. 590; People v. Peckens, 153 N. Y. 576; People v. Thau, 219 N. Y. 39; People v. Grutz, 212 N. Y. 72.; Johnston v. United States, 22 P. 2d 1; People v. Pindar, 210 N. Y. 191; People v. Sherlock, 166 N. Y. 180; People v. Cahill, 62 App. Div. 612; People v. Seidenshner, 210 N. 341; People v. Molineux, 168 N. Y. 264.)</p>

I. The evidence justified a finding that the accident was the sole and exclusive cause of the plaintiff’s disability. (Silverstein v. Metropolitan Life Ins. Go., 254 N. T. 81; JEtna Life Ins. Go. v. Young, 113 F. 2d 601; Preferred Accident Ins. Go. of New York v. Combs, 76 F. 2d 775; Lewis v. Ocean Acc. & G. Gorp., 224 N. Y. 18; Schwarts v. Commercial Travelers Mutual Association, 132 Mise. 200, 227 App. Div. 711, 254 N. Y. 523; Miller v. F. & Gas.

In the absence of fraud or duress the court was powerless to set aside an equitable settlement of the rights of the parties made in good faith. (Heflin v. Heflin, 177 Mise. 290, 263 App. Div. 714; Fox v. Fox, 263 N. Y. 68; Levy v. Dochenclorff, 177 App. Div. 249 ; 0ray v. Gray, 149 Mise. 273; Ostrin v. Posner, 127 Mise. 313; People v. Schenkel, 258 N. Y. 224; Matter of Estate of Ensign, 103 N. Y. 284; Smith v. Smith, 11 Jones & Sp. 140; Greenfield v. Greenfield, 161 App.

<p>I. If there was evidence to support each finding- made by the Official Referee, the court will not disturb his decision on appeal. (Aldridge v. Aldridge, 120 N. Y. 614; Carpenter v. Mosher, 125 N. 736; Baird v. Mayor, etc., of City of N. ¥., 96 N. Y. 567; Aerated Products Go. v. Godfrey, 290 N. Y. 92; People ex rel. MacCracken v. Miller, 291 N. Y. 55.) II. The declared policy and intent of the State of New York has always fully recognized that in the construction and operation of the Barge Canal injuries to waterpower and riparian owners would result, and that the State would prevent such injuries as far as possible, and that the State would compensate the property owners for such injuries so occasioned, whether or not such damages were occasioned by the acts of the State in the exercise of its governmental functions and whether or not such damages were damnum absque injuria. {Oswego & Syracuse B. R. Go. v. State, 226 N. Y. 351.) III. The injuries complained of and proved were injuries caused by the construction and operation of the Barge Canal, and were in large part new damages occasioned by the acts of the State in Barge Canal operation in 1930 and 1931, and in part continuing trespasses and injuries resulting from prior construction and operation of the Canal as to which new causes of action against the State and in favor of claimant arose every day including all days of the canal seasons of the years 1930 and 1931. (Silsby Mfg. Go. v. State of New Yorlc, 104 N. Y. 562.) IY. The State has given no evidence as to the value of claimant’s plant or water rights before and after the acts complained of. The evidence is that that value was diminished by those acts between January 1, 1930 and December 31, 1931, in the sum of $55,000. (Heimcm v. Bishop, 272 N. Y. 83; Colriclc v. Swinburne, 105 N. Y. 503; Beisert v. City of New Yorlc, 174 N. Y. 196; Kinsey v. City of New Yorlc, 75 App. Div. 262; Ford v. State of New Yorh, 119 Mise. 484; Baumann v. City of New Yorlc, 227 N. Y, 25; Hall Sons’ Go. v. Sundstrom & Stratton Go., 138 App. Div. 548, 204 N. Y. 660; N. Y. R. Go. v. Rothery et al., 132 N. Y. 293; Gallagher v. Kingston Water Go., 25 App. Div. 82; Neal v. City of Rochester, 156 N. Y. 213.) Y. On the undisputed evidence the value of claimant’s property and water rights has been impaired and diminished by the acts of the State in the construction and operation of the Barge Canal during the years 1930 and 1931. YI. The release to the State executed by a predecessor in title of claimant was not a release of claims for damages to water rights, either by the releasor or by any successor in title. YII. The State has overlooked the provisions of the enabling act, chapter 630 of the Laws of 1921, one of the enabling acts under which the claim of claimants was filed. YIII. Appellant’s attack upon the order amending the claim, in Point YI, is neither justified in fact or in law. {Al Raschid v. News Syndicate Go., 265 N. Y. 1; Foster v. Central Nat. Bank, 183 N. Y. 379; Harriss v. Tams, 258 N. Y. 229.)</p> <p>I. The reservation by a predecessor in title of the present claimant of all claims for damages resulting from the construction and operation of the Barge Canal, followed by the judgment and satisfaction thereof in an action against the State by said predecessor in title and the release executed by her are a bar to a recovery of damages in this action. (.Drucker v. Manhattan Railway Go., 213 N. Y. 543; Shepard v. Manhattan Railway Go., 169 N. Y. 160; Oehler v. New York Elevated R. R. Go., 4 App. Div. 152.) II. The State being free from negligence in the operation of the Barge Canal, it is not liable for damages thereby suffered by riparian owners. (Bon-nell v. Griswold, 89 N. Y. 122; Wahl et al. v. Rarnum et al., 116 N. Y. 87; Kelly v. Leggett, 122 N. Y. 633; Israel v. Manhattan Railway Co., 158 N. Y. 624; Williams v. State of New York, 106 Mise. 19; Gordon v. Ellenville & Kingston R. R. Co., 195 N. Y. 137.) III. The Appellate Division erred in ruling that the State had deprived claimant of water at a time when it would have been available at a lower datum. (Frasee Milling Go. v. State of Now York, 122 Mise. 545; Sage v. The Mayor, 154 N. Y. 61; Little Falls Fibre Go. v. Ford & Son, Inc., 249 N. Y. 495; Matter of City of New York [Jamaica Ray'], 256 N. Y. 382; People v. N. Y. and S. I. F. Go., 68 N. Y. 71.) IV. Lay testimony of witnesses who have seen and observed conditions to which they testify is entitled to greater credence and weight than mere opinion evidence. (Daly v. State of New York, 238 App. Div. 253; Roberts v. Jones, 156 Mo. App. 552; Ladwig v. Jefferson Ice Go., 141 Wis. 191; Cincinnati, etc., R. Go. v. Webber, 178 Ky. 171.) V. It was error to admit proof of damages accruing after the effective date of the enabling act of 1931. (Stone et al. v. State, 138 N. Y. 124; Farrington v. State, 248 N. Y. 112; Smith v. State of New York, 227 N. Y. 405; Mowers v. State of New York, 168 Mise. 651; Throckmorton v. State of New York, 128 Mise. 599.) VI. It was error to allow respondent to amend its claim by substituting a different parcel of land nine years after the time to file had expired. (Coleman v. Manhattan1 Reach Im. Co. et al., 94 N. Y. 229; Jones et al. v. Smith, 73 N. Y. 205; Thayer v. Finton, 108 N. Y. 394; Slocum v. State of New York, 177 Mise. 114; Quimby v. Gluflin, 27 Hun 611; Ruckles v. State of New York, 221 N. Y. 418; Clark v. Post et al., 113 N. Y. 17; Rafferty v. State of New York, 172 Mise. 870; Gognetta v. State of Neto York, 111 Mise. 329; Empire State Railroad Corp. v. State of N. Y., 113 Mise. 238; Kormer v. State, 180 App. Div. 837, 227 N. Y. 478.)</p>

I. Plaintiff established defendant’s negligence by a preponderance of the evidence and the verdict of the jury was proper. It was error to reverse the judgment and dismiss the complaint. (Bailey v. Central Vermont Railway, Inc., 87 L. ed. 1030, U. S. Supreme Court, decided May 24, 1943; Branson v. Baltimore & Ohio Railroad Co., 128 Md. 679, 131 Md. 686; McGrath v. Lehigh Valley R. R. Co., 263 N. Y. 657; Jacque v. Locke Insulator Corp., 70 P. 2d 680, 293 TJ.

I. Paragraph 7 of the agreement was void for indefiniteness, in failing, to provide the period of time of the license, and was a mere “ agreement to agree ”. P. P, Assn. v. Remington P. P. Co., 235 N. T. 338; St. Regis Paper Co. v. Hubbs & Hastings P. Co., 235 N. Y. 30; United Press v. New Yorlc Press Co., 164 N. Y. 406; Ansorge v. Kane, 244 N. Y. 395; Pratt Co., Inc., v. Roseman, 259 App. Div. 534; Mutual Life Ins. Co. v. Stephens, 214 N. Y. 488; Matter of Buffalo & Erie By.

I. Until the mortgaged property was disposed of to a third party, it remained a part of the fund for which the senior interest holder was accountable under the ownership agreement. (Intra-State Investors Corp. v. New Yorh Trust Co., 249 App. Div. 591, 276 N. Y. 527; Dows Estates, Inc., v. Smith, 290 N. Y. 484.) II. Fraud is not a necessary element of plaintiff’s action for accounting. (Intra-State Investors Corp. v. New Yorh Trust Co., 249 App.

<p>I. The directors and officers of Paramount are accountable to it for haying caused its funds to be employed in the commission of a crime. (Pollack y. Warner Bros. Pictures, Inc., 266 App. Div. 118; Roth v. Robertson, 64 Mise. 343; Runde y. Bankers Trust Go., 6 N. Y. S. 2d 623; Shea v. Mabry, 69 Tenn. 319; People ex rel. Perkins v. Moss, 187 N. Y. 410; Sagalyn y. Meekins, Packard & Wheat, Inc., 290 Mass. 434; Mannheimer v. Keehn, 41 N. Y. S. 2d 542; London Trust Co. v. Mackenzie, 62 L. J. Ch. 870; Gilbert v. Finch, 173 N. Y. 455; Lydia E. Pinkham Medicine Go. y. Gove, 303 Mass. 1.) II. The giving of Paramount’s funds to Bioff and Browne constituted the commission of a crime. (Penal Law, § 380; Matter of Raplee, 257 App. Div. 408, 282 N. Y. 605; Norton v. Woodruff, 2 N. Y. 153; People v. Clougher, 246 N. Y. 106; People v. Jackson, 191 N. Y. 293.)</p> <p>I. The payments to Bioff and Browne were extorted and therefore do not constitute a violation of section 380 of the Penal Law. (Van Dyke v. Wood, 60 App. Div. 208; Adams v. Irving National Bank, 116 N. Y. 606; Barry v. Equitable Life Assurance Society, 59 N. Y. 587; People v. Weinseimer, 117 App. Div. 603,190 N. Y. 537; People v. Hughes, 137 N. Y. 29; People v. Barondess, 133 N. Y. 649; People v. Sheridan, 186 App. Div. 211; L. 8. & M. S. By. Go. v. Roach et al., 80 N. Y. 339; People v. Feld, 262 App. Div. 909.) II. Payments to Bioff were made in good faith for the benefit of Paramount and represent a reasonable exercise of the judgment and discretion of respondent Keough as officer and director of Paramount. The finding to this effect is conclusive upon appellants. (Richard v. American Union Bank, 253 N. Y. 166; Matter of Lathers, 137 Mise. 222; Matter of Hunter, 151 P. 904.) III. Respondent Keough acted with reasonable prudence and for the benefit of the company. If the extortionate demand had not been paid, and Bioff’s threat effectuated, the corporation would have suffered a loss of approximately $2,860,000 per week. (Mans on v. Curtis, 223 N. Y. 313; Blaustein v. Pan American Petroleum & Transport Co., 174 Mise. 601, 263 App. Div. 97; Rous v. Carlisle, 261 App. Div. 432; Litwin v. Allen, 25 N. Y. S. 2d 667; Levine v. Behn, 174 Mise. 988, 262 App. Div. 729.) IV. The payments to within the scope of Paramount’s corporate powers. (Cause v. Commonwealth Trust Co., 196 N. Y. 134; Steinway v. Steinway & Sons, 17 Mise. 43; Armstrong Corle Co. v. H. Á. Melclnm Co., 285 P. 58; State ex rel. Sorenson v. Chicago etc. Railroad, 112 Nebr. 248; 45 Harvard Law Review, p. 1158; Matter of Heim’s Estate, 3 N. Y. S. 2d 134; Burden v. Burden, 159 N. Y. 287; Clarice v. American Press Association, 145 Mise. 370; Levine v. Behn, 174 Mise. 988, 262 App. Div. 729.) V. Assuming that the payments were technically ultra vires, respondents are not liable since they acted honestly and for the benefit of Paramount. (Litwin v. Allen, 25 N. Y. S. 2d 667; Hodges v. New England Screw Co., 1 R. I. 312; Smith v. Sherman, 113 Iowa 601; Bailey v. Babcock, 241 F. 501.)</p> <p>I. The payments made by defendant Keough on behalf of Paramount Pictures, Inc., were necessarily and properly made in the best interests of the corporation and its stockholders; and no liability on the part of the defendants-respondents herein exists by reason thereof. (People v. Barondess, 133 N. Y. 649; People v. Weinseimer, 117 App. Div. 603, 190 N. Y. 537; Schindler v. Royal insurance Co., 258 N. Y. 310; People v. Feld, 262 App. Div. 909.)</p>

I. Plaintiff did not follow the proper procedure for determining the constitutionality of chapter 46 of the Laws of 1943, and therefore the Supreme Court did not have jurisdiction of the subject matter of the complaint. Special Term properly exercised its discretion in holding that the complaint did not state a case for declaratory judgment.

All rights of both parties under the contract were terminated under Paragraph “ Seventh ”, not merely defendant’s right to further exploit the patents. {Cohen v. Bass, Inc., 246 N. Y. 270; Bauman & Co. v. Manwit Corporation, 213 App. Div. 300; Brooklyn City B. B. Co. v. Kings Co. Trust Co., 214 App. Div. 506, 242 N. Y. 531; Hurd v. Kelly, 78 N. Y. 588; Manvel v. Holdredge, 45 N. Y. 151; Wing v. Ansonia Clock Co., 102 N. Y. 531; Wolkind v. Berman, 232 App.

<p>The People failed to prove its case beyond a reasonable doubt,</p> <p>I. The defendant committed the crime. II. The facts, circumstances and the inferences which naturally flow therefrom, prove defendant guilty beyond a reasonable doubt. (People v. Weiss, 290 N. Y. 160; Greenfield v. People of the State of N. Y., 85 N. Y. 75; People v. Willett, 213 N. Y. 368; The People v. Conroy, 97 N. Y. 62; People v. Place, 157 N. Y. 584.)</p>

<p>The evidence was sufficient to establish guilt beyond a reasonable doubt. {People v. Soshtain, 288 N. Y. 658; People v. Richardson, 287 N. Y. 563; People v. Marra, 289 N. Y. 703; People v. Dansilo, 276 N. Y. 480; Bur-net v. Coronado Oil & Gas Co., 285 TJ. S. 393.)</p> <p>People y. Richardson (287 N. Y. 563) have so affected the enforcement of section 986 of the Penal Law as to impel a clarification by the Court of Appeals of its decision in that case. (Pennsylvania Publications v. Penn. Public Utilities Gom’n, 32 A. 2d 40; People [Lennon] v. Gamio, 165 Mise. 134; People v. Busco, 46 N. Y. S. 2d 859; Kerr v. Kerr, 134 App. Div. 141.)</p> <p>The People have failed to prove defendant guilty beyond a reasonable doubt. (People v. Soshtain, 288 N. Y. 658; People v. Richardson, 287 N. Y. 563.)</p>