Volume 94 — New York Miscellaneous Reports

Action by the Hill Steamboat Line as the initial carrier against the defendants, as connecting carriers, for the sum of $587.81 paid by the initial carrier to the consignee of goods undelivered to such consignee.

<p>Motion to punish judgment debtor for contempt.</p>

<p>Benevolent societies — by-laws of — who entitled to sick benefits — domicile.</p> <p>Where the by-laws of a benevolent society were so amended as to exclude from receiving “ sick benefits ” any member residing outside of Greater New York, one who prior to said amendment was and still is a member is entitled to sick benefits though after said amendment to the by-laws he took up his residence in Jersey City.</p>

<p>Attorneys — officer of village — annual salary — villages — corporations — contracts.</p> <p>An attorney at law retained by an incorporated village at an annual salary is not an officer of the village.</p> <p>Where several months after plaintiff’s appointment as attorney for an incorporated village at an annual salary the city, which pursuant to legislative enactment came into existence as the successor corporation of the village, refuses to permit him to complete his services, he is entitled to recover from it the unpaid balance of his salary due upon the contract of his general retainer.</p>

<p>Motion to vacate a resettlement of order.</p>

Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered upon a directed verdict.

<p>Appeal by the defendant from a judgment of the Municipal Court, borough of Manhattan, fourth district.</p>

<p>Bailment — when predicated on contractual relation — bailor and bailee —■ negligence.</p> <p>A bailment must be predicated upon some contractual relation, express or implied, between the bailor and the bailee upon the delivery of the goods.</p> <p>Where, in an action to recover the stipulated value of two packages of merchandise which plaintiffs claimed were delivered to defendant and which it agreed to inclose in a case containing other merchandise which it was to ship to a certain party, it appears that defendant never voluntarily agreed to accept the goods or to forward them tó that party, it cannot be held liable as a gratuitous bailee where he was tricked and deceived into parting with the goods and, in this respect, was no more negligent than the owner, both being the victims of a swindler, and a judgment in plaintiffs’ favor will he reversed and the complaint dismissed on the merits.</p>

Appeal by defendant from an order of the Municipal Court, borough of Manhattan, fifth district, granting plaintiff’s motion for a bill of particulars.

<p>Appeal by defendant from a judgment rendered in favor of the plaintiff in the Municipal Court, borough of Manhattan, first district.</p>

Appeal by the defendant from a judgment of the Municipal Court, borough of the Bronx, second district, rendered in favor of the plaintiff.

<p>Appeal from an order of the Municipal Court, borough of the Bronx, second district, entered January 17, 1916, denying defendant’s motion to vacate an attachment upon the papers upon which it was granted.</p>

<p>Verdict — motion to set aside — examination of record on appeal — new trial — Code Civ. Pro. § 1187.</p> <p>Where upon the examination of the record on appeal from a judgment in favor of plaintiff in an action for the conversion of a chattel the court is satisfied that there was no evidence that would justify a jury in finding that the ownership of the chattel was in plaintiff, it was not error, on motion to set aside the verdict, to dismiss the complaint though the trial justice did not reserve decision on the motion to set .aside the verdict and for a new trial, and no specific questions of fact were submitted to the jury in accordance with section 1187 of the Code of Civil Procedure.</p>

<p>Appeal from a judgment of the Municipal Court in favor of the plaintiff, rendered November 22, 1915, borough of Manhattan, fourth district.</p>

<p>Landlord and tenant — lease — defendant’s failure to act promptly on discovery of alleged false representations by landlord fatal to defense.</p> <p>By a lease for one year from July 1, 1915, the tenant was to take the premises, located at a fashionable summer resort, in their then condition and not call upon the landlord for any repairs, and the sum of $100 was to be deducted from the rent due April 1, 1916, the same to be applied to any alterations, repairs, additions to the premises, etc., and the tenant who entered into possession July 7, 1915, after making an inspection of the heating plant wrote the landlord on September 25, 1915, applying for an option for the renewal of the lease.</p> <p>Held, that after occupying the premises until the end of October, 1915, the tenant was liable for the installment of rent due the first of the following month.</p> <p>That defendant’s failure to act promptly upon discovery of alleged false representations of the landlord that the furnace and the heating apparatus were in good condition was fatal to any defense based on such alleged fact in an action against him for rent.</p>

<p>Appeal by the plaintiff from a judgment of the Municipal Court, borough of Manhattan, sixth district, rendered after trial in favor of the defendant.</p>

Appeal by the defendant from a judgment of the Municipal Court, borough of Manhattan, first district, rendered in favor of the plaintiff for $1,040.56.

<p>Estoppel—in action to recover money — evidence—pleading — allegations of payment.</p> <p>Where in an action to recover a certain sum and interest from July 1, 1915, being the aggregate of seventy-two monthly payments with compound interest made by plaintiff to defendant under an instrument called a “Profit sharing 5% savings bond,” dated March 3, 1909, in and by which defendant, a realty company, agreed to pay to plaintiff on October 1, 1921, the sum of $3,000, together with a pro rata share of a so-called “partnership surplus profit account,” it is not disputed that six months prior to July 1, 1915, plaintiff gave written notice to defendant of intention to withdraw in cash the amount paid in, with interest, but defendant claimed that plaintiff forfeited his right to demand the same because of his failure to make all the payments regularly and promptly as required by said instrument and that he was only entitled to a paid-up bond due October 1, 1921, as provided for in said instrument, and the evidence conclusively establishes that defendant, with full knowledge that plaintiff had not regularly and promptly paid his installments, waived its right to insist upon that defense provided plaintiff completed his payments within the six years provided by a new obligation assumed by both of the parties and, by its letter and subsequent conduct in accepting plaintiff’s payments and notice, induced him to believe that he would be entitled to receive his money on July 1, 1915, defendant was estopped from denying him a right to recover.</p> <p>The allegation of the complaint that plaintiff duly performed all the terms imposed upon him by the bond and had duly made payments as provided thereby was an allegation of the ultimate fact as to which the estoppel applied and entitled plaintiff to show waiver or estoppel, and he was not required to plead the facts constituting the evidence of such estoppel, and a further allegation that such payments as were not regularly and promptly made were duly accepted by defendant with the express understanding on the part o£ defendant that all pay-</p> <p>. ments made by plaintiff were to be withdrawn in accordance with the privilege granted under the bond was unnecessary.</p>

<p>Pleading — answer — complaint — evidence — counterclaim — contracts — Domestic Relations Law, § 72.</p> <p>The failure of the answer in an action by an infant for wages to deny tile allegation as to the rendition of services and defendants’ promise to pay therefor admits said allegation though the answer denies that the amount sued for is due.</p> <p>Plaintiff claimed thirty dollars and the answer admitted, as alleged in the complaint, that between September 26, 1915, and October 18, 1915, plaintiff rendered services for which defendants agreed to pay him the sum of nine dollars a week. A separate defense alleged that between October 3, 1915, and October 18,1915, plaintiff performed certain services amounting to the value of twenty-one dollars and that defendants had tendered that sum to plaintiff less fourteen dollars and seven cents due defendants. A check given to plaintiff for wages for the week immediately before October third and which came back from the bank not having been paid was received in evidence without objection. Held, that both on the pleadings and on the evidence plaintiff was entitled to judgment in the sum of fifteen dollars and ninety-three cents, the difference between the amount claimed and defendants’ counterclaim.</p> <p>A dismissal of the complaint if granted on the ground of absence of allegations or proof that plaintiff was emancipated should have been without prejudice.</p> <p>Plaintiff entered into service of defendants six months before the action was brought, signed the contract and received the wages. Held, that whether he was emancipated or not was immaterial in the present action, for payment to him by defendants would be binding under section 72 of the Domestic Relations Law as against plaintiff’s father even if he still has a right to claim from the plaintiff the moneys paid to him.</p>

<p>Appeal by plaintiff from a judgment of the Municipal Court, borough of Manhattan, second district, rendered by the court in favor of the defendant.</p>

<p>Workmen’s Compensation Act, § 24 — no provision for award to physician rendering services — actions.</p> <p>The Workmen’s Compensation Act does not provide for any award to the physician who renders medical services to an injured workman but merely gives the physician a lien upon the compensation awarded to the workman which shall be paid therefrom only in a manner fixed by the commission as provided by section 24 of the statute, and the physician cannot maintain an action against the employer under an assignment by the employee of the portion of the award which was included as compensation for medical services.</p>

<p>Trial — on the merits — evidence — when there is no ground for dismissal.</p> <p>Foreclosure — of mortgages — stipulation entered into hy attorney without authority — evidence — costs and allowances—judgment.</p> <p>Where there has been a trial on the merits and both parties have put in’ their entire proof there is no ground for a dismissal “ without prejudice.”</p> <p>Where, in an action to foreclose a mortgage, the vendors of certain chandeliers and fixtures to the mortgagor under a contract of conditional sale were made parties defendant, and a stipulation between the attorney of said defendant and the attorney of plaintiffs for the entry of judgment upon the understanding that the conditional vendors should be paid their claim before the plaintiff in foreclosure should receive any money from the proceeds of sale,- whereupon they would deliver to the purchaser at said sale a bill of sale of the fixtures and that an order to that effect might be entered forthwith, and said stipulation was agreed to by the plaintiff in the foreclosure action, it constitutes an enforceable contract against her.</p> <p>The attorney for the plaintiff in foreclosure had no implied authority to enter into a stipulation which in effect was a contract enforceable against his client, and plaintiffs in an action to enforce said contract and as a part of their case were bound to show actual authority on the part of their attorney.</p> <p>Evidence considered, and held to clearly show that defendant by her husband either authorized or ratified the action of her attorney in the matter of said stipulation.</p> <p>Costs and allowances belong to the party and not to his attorney even though they may usually be paid to him.</p> <p>Notwithstanding the form of the judgment in the foreclosure action which was entered after an inquest upon the withdrawal of the answer of plaintiffs herein under the stipulation, defendant herein had received money within the meaning of the contract or stipulation out of which she was bound to pay the agreed sum to plaintiffs herein.</p> <p>After the payment of costs and expenses all the proceeds of a sale in foreclosure, as between the mortgagee and the mortgagor or owner of the equity of redemption, are to be applied upon the mortgage debt.</p>

<p>Appeal from a judgment of the Municipal Court, borough of Manhattan, first district, rendered after a trial by the court without a jury, in favor of the defendant, on the merits.</p>

<p>Guaranty — when, a continuing one — contracts — goods sold and delivered.</p> <p>Where defendant in consideration of one dollar, the receipt of which was duly acknowledged, agreed in writing to be responsible and guarantee to plaintiff a certain sum for all goods sold prior to the date’of the writing and all goods sold and delivered on running account to a certain other person, the guaranty is a continuing one and applies to goods sold .and delivered after its date.</p>

<p>Appeal — from judgment on verdict — plaintiff given benefit of favorable inferences — evidence.</p> <p>Negligence — question of — automobiles — evidence.</p> <p>A plaintiff on appeal from a judgment entered on a verdict in his favor must be given the benefit of the most favorable inferences that can reasonably be drawn from the evidence.</p> <p>Where plaintiff on alighting from a street car, the rear of which extended beyond the westerly curb, walked to the rear 'of the car and, as he turned to go south, was struck almost immediately by defendant’s automobile which, without warning, was rapidly approaching from the direction in which plaintiff was going, and on the wrong side of the street, the question whether or not it was the duty of plaintiff to look to the south before turning back of the street car depends upon whether any man would reasonably apprehend danger from that point, and the question of his negligence in that regard is for the jury.</p>

Appeal by the defendants from an order of the Municipal Court, borough of Manhattan, second district, denying defendants ’. motion to set aside the judgment and for a new trial.

Appeal by the defendant from a judment of the City Court of the city of New York, entered upon a verdict for $1,502.35, and from an order denying motion for -a new trial.

<p>■ Summary proceedings — terms of lease — associations — landlord and tenant.</p> <p>Where it was intended by the terms of a lease made in form by the trustee for the educational and benevolent fund of a voluntary association, which then had or expected to obtain a right to lease the premises the title to which was vested in said trustee who also made the lease as president of the association, that it was to be the landlord and the rent paid to it, the trustee is not entitled to maintain summary proceedings for nonpayment of rent as the tenant was bound to pay the same to the association, his landlord, and • not to the owner of the title paramount.</p>

<p>Appeal from a judgment of the Municipal Court, borough of Manhattan, second district, for the sum of $224.25; entered after a trial before the court without a jury.</p>

<p>Jurisdiction — of Municipal Court of city of New York — construction of Municipal Court Code — depositions — pleading — Municipal Court Code, § 15.</p> <p>The Municipal Court Code which determines the jurisdiction of the Appellate Term on appeals from the Municipal Court of the city of New York neither confers on said court, or any justice thereof, any power to grant an order of examination before trial of an adverse party nor upon the appellate court power to hear an appeal from an order granting or denying an order for such an examination, or granting or denying a motion to vacate such an order; 'and on an appeal from an order denying a motion to vacate an order for the examination of defendant before trial the only question is whether the court below had power to make the order.</p> <p>The only reasonable construction of the Municipal Court Code is that the legislature intended to give the Municipal Court of the city of New York no power not expressly or by fair implication given by said Code, and that only those sections of the Code of Civil Procedure which cover matters of practice, pleadings, forms and procedure in the exercise of the powers otherwise expressly or impliedly granted to said court come within section 15 of the Municipal Court Code which provides that, “ Except as otherwise provided in this act or in the rules, the practice, pleadings, forms and procedure in this court shall conform, as nearly as may be, to the practice, pleadings, forms and procedure existing at the time in like causes in the supreme court any statutory limitations, heretofore enacted, to the contrary thereof notwithstanding,” and are applicable to said Municipal Court of the city of New York.</p> <p>While the Constitution of the state of New York permits the legislature to change inferior courts, existing at the time the Constitution of 1894 was adopted, into courts of record, it does not permit the legislature to change them into courts of general jurisdiction.</p> <p>In section 180 of the Municipal Court Code which provides that “ The provisions of this act shall be liberally construed in furtherance of justice. The presumption of regularity shall attach to the proceedings, judgments, orders and final orders of this court, and every fair intendment shall be made in favor of its jurisdiction,” the words “ and every fair intendment shall be made in favor of its jurisdiction” are obviously intended to be confined to the effect to be given to the records of said Municipal Court and that every fair intendment of fact that may be given to the records shall be in favor of supporting the judgments or orders of the court; where, however, the question to be considered is not whether the jurisdictional facts existed in any given case but solely whether the court has been given certain powers by statute, said quoted words have no application.</p> <p>The right to examine an adverse party is purely statutory and the courts have no inherent power to grant an order therefor; the right to such an order cannot strictly be considered as a matter of practice or procedure conferred by section 15 of the Municipal Court Code.</p>

<p>Appeal from a judgment of the Municipal Court, borough of Manhattan, third district, in favor of the plaintiff.</p>

Appeal by the plaintiffs from a judgment of the Municipal Court, borough of Manhattan, second district, in favor of the defendant, entered upon a direction of the court dismissing the complaint at the' close of the plaintiffs’ case in an action brought before the court and a jury.

Appeal by the plaintiff from a judgment of the Municipal Court, borough of Manhattan, third district, rendered in favor of the defendants.

Appeal by the defendant from a judgment of the Municipal Court, borough of Manhattan, seventh district, entered upon the decision of the court rendered after a trial without a jury.

<p>Contracts — unilateral — when defendants may withdraw.</p> <p>A written order by which defendants authorized the publication in plaintiff’s periodical of their advertisement for one year and agreed to pay a certain sum for each insertion is at most a unilateral contract or a mere offer which could be withdrawn by defendants, and plaintiff is not entitled to recover for insertions made after notice by defendants to cease publication.</p>

Appeal by the plaintiff from a judgment rendered in the Municipal Court, borough of Manhattan, first district, in favor of the defendant.

Appeal by plaintiffs from a judgment rendered in the Municipal Court of the city of New York, borough of Brooklyn, second district, on the 27th day of December, 1915, in favor of the defendant and against the plaintiffs, dismissing the complaint on the merits; and from an order, dated January 7, 1916, denying a motion to vacate and set aside said judgment.

<p>Appeal from a judgment rendered in the Municipal Court of the city of New York, borough of Brooklyn, third district, on the 26th day of January, 1916, in favor of the plaintiff and against the defendants.</p>

<p>Appeal from so much of the judgment of the Municipal Court of the city of New York, seventh district, borough of Brooklyn, as brings up for review an order retaxing costs.</p>

<p>Appeal from an order dated January 21,1916, denying a motion to amend a summons vacating a requisition to replevy and dismissing the action, which order was filed in the clerk’s office of the Municipal Court of the city of New York, borough of Brooklyn, fifth district.</p>

<p>Appeal from an order of the Municipal Court of the city of New York, borough of Brooklyn, seventh district.</p>

ee of the Municipal Court of the city of New York sitting in the third district, borough-of Brooklyn, denying a motion to vacate and set aside an ex parte order for the examination before trial of one of the defendants, the defendant so ordered to be examined alone appealing.

<p>Executions — issued out of Municipal Court — judgments — contracts — pleading — services:</p> <p>Where the complaint of a city marshal, who had levied upon property of defendants by virtue of an execution issued out of the Municipal Court of the city of New York upon a judgment rendered against them, shows a valid agreement between plaintiff and defendants to preserve their business until they could perfect an appeal from said judgment, for a compensation for the services of a keeper, that may well he found to have been fair and just, a judgment entered for defendants after a trial on the merits upon sustaining a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action will be reversed and the demurrer overruled, with leave to defendants to answer upon payment of costs.</p> <p>A provision of said agreement, that plaintiff .should have such fees as he could have lawfully taxed had he collected on the execution, is valid.</p>

<p>Evidence — admissibility of — witnesses — Code Civ. Pro., § 830.</p> <p>The testimony of a witness, since deceased, given in a criminal proceeding instituted by plaintiffs herein against defendant herein upon suspicion that he had feloniously taken certain building blocks manufactured for him by plaintiffs, that defendant, when he sold them to the witness, represented that plaintiffs had given them to defendant in payment of a pre-existing indebtedness, is admissible under section 830 of the Code of Civil • Procedure in an action subsequently brought to recover the value of said building blocks, defendant having both the right and the opportunity to cross-examine said witness on the hearing of the criminal charge.</p>

<p>Lands under water—ownership of — riparian rights — injunctions — accretions.</p> <p>The Niagara river, being an international boundary line between the United States and the Dominion o£ Canada to which the rule of tide lands and water applies, the lands under the water of said river located east of Canada belong to the state of New York subject, however, to the paramount right of congress to control and improve navigation and regulate commerce thereon.</p> <p>Such ownership of the state, however, differs from that by which it. holds uplands for sale or pre-emption, for its title to lands under water is held in trust for the people of the state for the purpose of enabling them to enjoy the navigation of the waters, to carry on commerce over them and have liberty of fishing and boating thereon freed from the obstructions or interference of private parties.</p> <p>While the state may be the owner of the lands under water surrounding “ Strawberry island ” located in the Niagara river at a point where it divides into two branches, one continuing northwesterly between the Canadian shore on the west, Strawberry island and Grand island on the east, and the other continuing northerly between the easterly 'shores of Strawberry island and Grand island and the westerly shores of the city of Buffalo and the town of Tonawanda, the owner of “ Strawberry island ” and all the appurtenances thereto belonging possesses all the rights of use of the waters surrounding the island by way of fishing, boating, navigation and the transportation of commerce that are possessed by the public or by any citizen of the state, and in addition thereto as riparian owner has the right to have the island supported in its natural condition by the adjoining lands under the waters surrounding it with the right to have the bed of the river remain in its natural condition, maintaining its natural habit or currents as affecting the premises without diminishing or increasing the speed or volume or deflecting the currents.</p> <p>Such owner is also entitled to the increase derived from accretion together with the exclusive right to purchase from the state abutting lands with the right of access over the same to the waters surrounding the same for the purpose of maintaining docks in aid of commerce, subject, however, to the powers of congress and the people of the state to deepen or improve the channel in aid of navigation for the promotion of commerce.</p> <p>While ordinarily the riparian rights of an upland owner extend to the thread of the stream, but not necessarily to the building of docks which would be tolerated only to the navigable waters of the river, the fact that the federal government has constructed a ship canal for the purposes of navigation along the easterly side of the easterly branch of the Niagara river, the effect of which is to divert a large volume of water into the new channel, materially changes what would be the center line of the flow of the water based upon volume, and the thread of the stream must be regarded as the center line between the banks of the river, the shore of the city of Buffalo on one side and that of Strawberry island on the other.</p> <p>The riparian rights of the owner of “ Strawberry island ” extend southward and up the Niagara river covering the bar of gravel and sand there located until it is crossed by the international boundary and is met by the thread of the eastern branch of the river; consequently the riparian rights of said owner in the west and south extend to the international boundary line and upon the east to the thread of the stream, the center line of the river between the shores of the island and the mainland.</p> <p>In view of the fact that serious injury may result from the pumping of gravel by defendants from around said island which could not be adequately compensated for by any legal remedy, and which might be difficult in many instances to prove, plaintiff in an action to permanently enjoin defendants from removing sand, gravel or soil between the shores of the island and the thread of the river around the island and adjacent thereto will be awarded judgment for the issuing of an injunction within the territorial limits specified in the opinion herein.</p>

<p>Statutes — construction of — Public Health Law, § 248.</p> <p>The language of a statute, making penal the doing of something not before prohibited by law, may not be so construed as to make penal what is not plainly within the statute.</p> <p>Where a physician merely writes a prescription for a dangerous drug but does not deliver it to his patient, he is not guilty of a violation of section 248 of the Public Health Law which requires a physician to “ keep on record the name and address of each person to whom such drug is dispensed.”</p>

<p>Application for a writ of mandamus.</p>

Motion by the defendants to have the action declared •abated on account of the death of the plaintiff; with cross- motion on the part of the plaintiff to have the administrator of the plaintiff substituted for the plaintiff, and the action continued in his name.

<p>Action to annul a marriage.</p>

<p>Motion for leave to inspect minutes of grand jury and to dismiss indictment.</p>

<p>Education Law, § 88o— appeal to commissioner of education — injunctions — actions — schools — Code Civ. Pro. § 1931 — judgments.</p> <p>The remedy provided by section 880 of the Education Law, of an appeal to the commissioner of education by one believing himself aggrieved by the action of any school district meeting, is a very simple, expeditious and effective proceeding at an expense not exceeding twenty-five dollars, and it is the official duty of school trustees to serve their district in this economical manner rather than embark in litigation that results in their making a claim against the school district for the expense of such litigation. „ .</p> <p>. Where, without the consent of the defendant trustee, an action for an injunction was brought by one claiming to be one of the three trustees of the school district, to which action one conceded to be a trustee was joined as a plaintiff against another trustee and one claiming to be a trustee and a teacher employed by him, to determine who was elected trustee at the annual meeting and who was legally employed to teach the school for the then ensuing school year, in which plaintiffs obtained a preliminary injunction restraining defendants from entering the school-house, etc., and by a decision of the Court of Appeals it was held that it was no case for an injunction, the services and expenses of the litigation were wholly unnecessary and can not form the basis of any just charge against the school district.</p> <p>The action not having been brought by all of the trustees of the school district did not affect any property, claim, rights or interest of the school district within the meaning of sections 858-862 of the Education Law.</p> <p>Neither were the plaintiffs in said action entitled to any relief under section 1931 of the Code of Civil Procedure which provides that where judgment is rendered against a trustee of a school district an execution may be issued and collected out of the property of the officer, and the sum collected must be allowed to him in the. settlement of his official accounts except as otherwise specially prescribed by law, as precisely how and in what manner claims for school districts’ costs and reasonable expenses as well as all costs and damages adjudged against him may be allowed and paid is specially prescribed by sections 850-862 of the Education Law.</p>

<p>Condemnation proceedings — petition in — denial of material allegations of petition — corporations—pleading — constitutional law — statutes — Code Civ. Pro., §§ 1776, 3365 — Flood Abatement Commission of Olean.</p> <p>Inasmuch as section ■ 3365 of the Code of Civil Procedure permits a landowner in condemnation proceedings to deny any material allegation of the petition, the provision of section 1776 thereof that a mere denial of the allegation in the petition does not require a corporation to prove its corporate existence, does not apply to an answer in condemnation proceedings.</p> <p>An answer denying an allegation that petitioner was a corporation organized under chapter 717 of the Laws of 1915 creating “ The Flood Abatement Commission of Olean ” and declaring it a body corporate, without an affirmative declaration that the petitioner is not such a corporation, compels petitioner to prove its corporate existence.</p> <p>Where in condemnation proceedings an allegation that petitioner has been unable to agree with the owner of the property sought to be taken for, its purchase and the reasons for such inability is denied by the answer the allegation must be proved on the trial.</p> <p>A petition in condemnation proceedings under chapter 717 of the Laws of 1915 which alleges that the public use for which defendants’ premises are required is opening of the channel for the passage of the Allegany river, the drainage of low lands, the erection and maintenance of dikes, retaining walls and berms, the excavation of earth, the disposition of spoil, and all necessary and proper purposes for the complete carrying out .of the provisions of the statute for the straightening, dredging and making of the improvements to restrain and control the waters of the Allegany river and Clean creek within the corporate limits of the city of Clean, the acquisition by the city of Clean of such lands and property as may be necessary for such purposes, the use and disposition by said city of reclaimed and other lands derived from the making of such improvements or acquired for such purposes, and that the route on said premises is the only proper and feasible one for the carrying out of said improvements was not a sufficient compliance with section 3360(3) of the Code of Civil Procedure, which requires a petition in condemnation proceedings to state the public use for which property is required and the fact showing the necessity for its acquisition, since the petition did not definitely state the public use for which the propery was required and did not state sufficient facts showing the necessity for the acquisition of defendants’ land.</p> <p>An allegation that all the preliminary steps required by law have been taken to entitle the plaintiff to institute proceedings under chapter 717 of the Laws of 1915, being in the language of the statute, is sufficient though such allegation is a mere conclusion to be drawn from many facts; but where such allegation is met by a general denial petitioner must prove every essential condition prescribed by the statute.</p> <p>The subject of the statute (Laws of 1915, chap. 717) as expressed in its title is the control and restraint of the waters of the Allegany river and Olean creek in the city of Olean by acquiring lands for such purpose and the way and manner such subject is to be treated, handled and made effective does not violate section 16, article III, of the Constitution as a local and private bill embracing more than one subject as all of its provisions are germane to and for the sole purpose of carrying out the object of the statute as expressed in its title.</p> <p>. The object of said statute (Laws of 1915, chap. 717) being to preserve the public health and property by preventing floods is not void as being within the prohibition of section 18 of article III of the Constitution because some lowlands will be drained by the improvements.</p> <p>While the corporation created by said statute (Laws of 1915, chap. 717) in protecting the municipality may also incidentally afford protection to private property, it cannot be said that the purpose of its organization is other than as expressed and defined, that is a municipal purpose, and the statute is not. unconstitutional as a private act creating a corporation not formed for public purposes.</p> <p>Said statute of 1915 does not violate sections 9 or 10 of article VIII of the Constitution or the Fourteenth Amendment of the Federal Constitution.</p> <p>A majority of the qualified taxpayers having voted in favor of the proposition: “ Shall the sum of $150,000 be raised by tax upon the taxable property of the city of Olean, as set forth in chapter 717 of the Laws of 1915, for the purpose of flood abatement ? ’ ’ the purpose and object of the requirement of section 6 of the Municipal Law, that a resolution proposing a funded debt approved by the taxpayers of the city shall provide for raising annually by tax a sum sufficient to pay the interest and the principal as the same shall become due, was fully complied with, but the necessity of such compliance with the provision of said section 6 of the Municipal Law is not pertinent to the issues in a condemnation proceeding under the statute of 1915; such necessity could be urged only in some proceeding where the validity of the bonds issued pursuant to such taxpayers’ vote as provided by said statute of 1915 was the subject of the inquiry.</p>

<p>Demubbee to complaint.</p>

<p>Insurance (liability) — policy of — when corporation must procure written permit describing work to be undertaken — negligence.</p> <p>Where injuries sustained by an employee in making additions to, alterations in, or in the construction or demolition of any building, etc., are specifically excluded from the injuries covered by an employer’s liability policy of insurance unless the insured, a corporation, procures a written permit describing the work to be undertaken, signed by one of its officers and attached to the policy, there can be no recovery thereon where it is conceded that no such permit was secured by plaintiff and attached to the policy.</p> <p>The work done in connection with the replacing after a fire of a roof on a building one hundred and forty-four feet long by fifty-eight feet wide, the brick walls of which were seventeen feet high, does not constitute the “ making ordinary repairs for the preservation of machinery or buildings,” within the terms of the policy.</p>

<p>Motion for a re-submission under the Liquor Tax Law.</p>

<p>Motion by relator for a writ of prohibition."</p>

<p>Trusts — deeds of — descent and distribution of real and personal estate — creation of power by deed — appointment of trustee — accounting.</p> <p>Where by a trust deed relating to both real and personal property two powers are created, one to convey, transfer and pay over to persons appointed in the settlor’s will, and the other to convey, transfer and pay over “ to such person or persons as by the laws of the state of New York then in force relating to the descent and distribution of the real and personal estate of the intestate decedents would be entitled to receive the said property if this instrument had not been executed and the said party of the first part had died seized and possessed of and being the lawful owner of the said property so invested,” no power of revocation is reserved in the' trust deed, it is irrevocable and upon the accounting of the trustee he may be permitted to resign and the court will appoint his successor to whom may be turned over such funds as are in the hands of the accounting party, he conveying the real estate to the substituted trustee.</p>

<p>Insurance (life)—policy of, on life of judgment debtor — provisions as to cash surrender value — when proceeds liable for debts — supplementary proceedings.</p> <p>Where a policy of insurance on the life of a judgment debtor, though payable in the event of his death to his wife, provides for a cash surrender value payable to him and which he may elect to collect without her consent, arid he so elects, the proceeds of the policy are liable for his debts and a motion for the appointment of a receiver in supplementary proceedings will be granted.</p>

<p>Motion to vacate and set aside the service of a summons.</p>

<p>Action for partition.</p>

<p>Specific performance — when decreed — objection to title — contracts — for sale of lands—pleading—evidence — when plaintiff entitled to judgment.</p> <p>Several months after the making of a land contract the intending purchaser for the first time objected to the title because a part of the front of the building encroached over the street line. The building had so stood for many years and had the purchaser when he received his survey called attention to the eneroaehment it could have been entirely removed before the day set for closing title. Held, that it appearing that so far as concerned the purchaser time was not of the essence of the contract equity would grant the vendor a reasonable time within which to remove the objection to the title and decree specific performance.</p> <p>The intending purchaser upon rejecting the title sued to recover the deposit paid on signing the contract and alleged in his complaint that upon the day fixed for closing he was ready and willing to take title. Defendant answered denying said allegation and as an equitable defense pleaded that he had asked for a reasonable time to remove the objection to the title, which was not accorded him, that he was ready and willing to perform the contract and while asking for a dismissal of the complaint also prayed for specific performance. After the removal of the encroachment defendant served a “ supplemental amended answer ” alleging the fact and that he at all times had been ready to carry out the contract and was in a position to and did offer a good reasonable title, but the prayer for relief asked only that the complaint be dismissed. The issue raised on the pleadings was noticed for trial at Special Term in equity but because the prayer of the “ supplemental amended answer ” omitted, the demand for specific performance the case was sent for trial before a jury on the law side of the court and when defendant attempted to prove that plaintiff was not acting in good faith, that he was not in fact ready and willing to close the title on the day alleged in the complaint, the trial judge refused to hear the testimony on the ground that no such issue was presented and directed a verdict in favor of the plaintiff for the amount of the deposit and expenses. In an action to compel specific performance of the contract of sale, held, that the plaintiff herein had been denied his day in court in the action to recover the deposit brought by defendant herein.</p> <p>That the evidence to establish plaintiff’s equitable claims in the action to recover the deposit being excluded upon the objection of his adversary as shown by the proceedings in the action at law and received in evidence and about which there can be no controversy the judgment in the former suit was not res adjudicate/, in the present action and plaintiff is entitled to judgment in his favor.</p>

<p>Marriage — action to annul — husband and wife — when plaintiff entitled to judgment.</p> <p>Where in an action to annul a marriage it appears that the parties acted in good faith and in the belief, after full and careful inquiry, that defendant’s first husband, from whom she had not heard for over seven years and did not know him to he alive, was dead, plaintiff is entitled to judgment though he knew all the defendant knew about the facts before he married.</p>

<p>Action by a teacher in the public schools to recover arrears of salary. The case after having been reached on the Trial Term calendar in April, 1915, was, in February, 1916, submitted on an agreed state of facts.</p>

<p>Constitutional law — statutes — Personal Property Law, § 44, as amended — Laws of 1902, chap. 528.</p> <p>It is obligatory upon a trial judge to follow the decision of the Court of Appeals that a statute is unconstitutional though decisions of the United States Supreme Court hold that a substantially similar statute, is not in contravention of the Constitution of the United States and, therefore, not in contravention of the Constitution of the state of New York.</p> <p>Section 44 of the Personal Property Law, as amended by chapter 507 of the Laws of 1914, which in effect places an embargo upon all sales of merchandise in bulk under the guise of an expedient designed to prevent fraud in such sales, is unconstitutional.</p> <p>Said statute does not materially differ from chapter 528 of the Laws of 1902 which was declared unconstitutional by the •decision in Wright v. Kart, 182 N. Y. 330 and which decision is stare decisis.</p>

<p>False representations — when equitable action to rescind contract to sell property may be brought — corporations — trusts.</p> <p>One induced by false representations to sell property may bring an equitable action to rescind the contract and to charge the purchaser as trustee ex maleficio upon an implied trust resulting from the fraud.</p> <p>Where by the false representations of defendant, a stockholder in a corporation, plaintiff, who was also a stockholder therein, was induced to sell certain of her stock, and about a year thereafter the corporation was dissolved and its business taken over and carried on by the purchaser of plaintiff’s stock, she is entitled to bring an action for a rescission of the contract of sale and to impress a trust upon the proceeds of the stock received by defendant upon the dissolution of the corporation, including the profits.realized by him on such proceeds.</p>

<p>The nature of the action and the material facts are stated in the opinion.</p>

<p>Actions — when judge writing opinion is not liable to prosecution in civil action for alleged defamatory matter.</p> <p>Where all the matters discussed in a judicial opinion were pertinent and material to the.action in which it was written the judge writing the opinion is not liable to prosecution in a civil action for alleged defamatory matter concerning plaintiff appearing in the opinion.</p>

<p>City of New York — county clerk of New York county is state officer — Greater New York Charter, § 56 — when mandamus will issue requiring comptroller to certify and audit pay-roll as submitted by county clerk.</p> <p>The clerk of the county of New York being the constitutional clerk of the Supreme Court (Constitution, art. YI, § 19) whose duties are regulated and prescribed by the Code of Civil Procedure is a state officer and a part of the judicial system of the state and his exclusive right to appoint and promote his subordinates in the county clerk’s office is not subject to the approval of other elective officers of the city government.</p> <p>Section 56 of the Greater New York Charter, which, in substance, provides that it is the duty of the board of aldermen on the recommendation of the board of estimate and apportionment to fix the salary of every officer or person whose compensation is paid out of the city treasury other than day laborers and the heads of departments or elective officers, does not apply to county clerks or to the employees of that office, whose salaries are paid from county moneys raised by a separate county tax and not from the city treasury.</p> <p>Where the comptroller of the city of New York refused to certify and audit the pay-roll of the county clerk’s office, duly certified, on the ground that by a resolution attached to the budget for 1916 in which salaries of clerks in that office were fixed by a general provision any vacancy occurring in that office may be filled only after a certificate is procured from the duly authorized representative of the board of estimate and apportionment as to the necessity of the appointment and the propriety of the compensation, and it appears that two of the employees in said office had been promoted to fill vacancies and no such certificate had been obtained in either case, a mandamus will issue requiring the comptroller to certify and audit the pay roll as submitted by the county clerk on the ground that he was not required to ask permission to make said promotions either from the board of estimate and apportionment or the bureau of standards.</p>

<p>Contracts — separation, or covenant therefor, cannot be relied on to support consideration of separation agreement — distinction between separation agreements and separation settlements—husband and wife — action for separation.</p> <p>The common law of this state always has been and still is that the fact of separation, or a covenant therefor, cannot be relied on to support any part of the consideration of a separation settlement or a separation agreement, and such also it seems is the statute law.</p> <p>The distinction between simple separation agreements with pecuniary provisions for support of an executory nature and separation settlements, discussed.</p> <p>An agreement which, after reciting that marital differences had existed between the parties for a long time and that they had separated, provides for a division and an allotment of property interests between them in addition to the husband’s covenant to make weekly payments of money for the support of the wife and for the support and education of their son, and which also provides that neither of the parties would “ interfere with the rights, privileges, doings or actions of each other, and will not interfere in any way, manner or shape with each other, and’ each of the parties is at liberty to act and do as they see fit,” and, further, that." neither of the parties hereto shall compel or endeavor to compel the other party to cohabit or dwell with him or her by any legal or other proceeding for the restitution of marital rights or otherwise howsoever,” is something more than a separation agreement containing executory promises only; it partakes more of the nature of a separation settlement, and though valid so far as its pecuniary features are concerned it is not a bar to an action for a separation, and a motion to dismiss a complaint therefor will be denied.</p>

<p>Proceeding to determine proper method of assessing transfer tax.</p>

<p>Services — liability for services of physician and of hospital in necessary care of minor — contracts — evidence — Workmen’s Compensation Law.</p> <p>The primary liability for the services of a physician and of a hospital in the necessary care, treatment and maintenance of a minor while at such institution rests upon his parents.</p> <p>Where a hospital elects to bring an action on contract against defendants for the care, etc., of an injured employee, a minor, without regard to the Workmen’s Compensation Law, plaintiff, in order to recover, must show by a fair preponderance of evidence either an express, or an implied, contract that defendants would pay for the necessary services rendered in the care of the employee.</p> <p>Evidence of telephone conversations had after the employee had been taken to the hospital between its employees and some unknown person who, though talking from defendants’ store, was not shown to have authority to bind them, considered, and held that it tended to show a disclaimer of liability on the part of defendants for the services rendered the injured employee at the hospital, and not a contract to pay therefor.</p> <p>Defendants not being primarily liable for the care and maintenance of the employee were not bound to pay plaintiff’s charges incident thereto, even assuming that the evidence established an express or implied request on the part of defendants that the hpspital should receive and care for the injured employee.</p>

<p>Actions — maintenance of — upon undertaking to obtain attachment — contracts — General Corporation Law, § 15.</p> <p>Where in an action against several defendants, one of which is a foreign corporation, a levy was made upon the property of defendants under a warrant of attachment, and defendants recovered judgment in the action, they, notwithstanding that the corporation defendant has not obtained leave to do business within this state, may maintain an action upon the undertaking given to obtain the attachment to recover the damages caused thereby.</p> <p>The provisions of section 15 of the General Corporation Law do not preclude a foreign corporation from maintaining an action upon all contracts, but the prohibition relates only to contracts made by it within the state, and the undertaking in attachment being a contract made by defendant herein for the benefit of defendants in the attachment suit was enforceable by them.</p>

<p>Action on contract for the delivery of 500 rubles.</p>

<p>Motion for judgment on the pleadings.</p>

Application pursuant to the provisions1 of section 2231, Code of Civil Procedure, for the removal of respondent from certain premises in the city of North Toriawanda, N. T.

<p>Bankruptcy — discharge in — meaning of. word “property” — Bankruptcy Act of 1898, § i?a(2) as amended — supplementary proceedings.</p> <p>The meaning of the word “property” in section 17a (2) of the Bankruptcy Act of 1898, as amended, is not properly included in the giving or becoming surety on a bond.</p> <p>A discharge in- -bankruptcy releases the - bankrupt from any and all liability upon a judgment recovered against him by the receiver of a surety company for the amount which it had been compelled to pay to the executor of an estate under a bond given by defendant conditioned for the. repayment of money paid or advanced to him, it being subsequently determined that he was not entitled thereto.</p> <p>An order for the examination in proceedings supplementary to execution of the bankrupt on the judgment recovered against him by the surety company must be vacated.</p>

<p>Appeal by defendant Williams from a judgment of the Municipal Court of the city of New York, borough of Manhattan, second district, rendered in favor of the plaintiff after a trial by the court without a jury.</p>

Appeal by the defendant, the judgment debtor herein, from two orders of the City Court of the city of New York, the first of which adjudges the president of the defendant corporation in contempt for failure to appear for examination in proceedings supplemental to execution, and the second of which denies the defendant’s motion for a reargument of the motion to punish for contempt, and to have stricken from the order to show cause thereon the recital of certain papers.

<p>Jurisdiction — of Municipal Court of city of Hew York — constitutional law—'Municipal Court Code, § 6(i)—judgments.</p> <p>The provision of section 6 (1) of the Municipal Court Code (Laws of 1915, chap. 279), which attempts to confer upon the Municipal Court of the city of Few York jurisdiction in an action “ to take, state and determine an account between partners after dissolution or other termination of their partnership relation, and to render judgment .for the amount so found to be due, but in no event for more than one thousand dollars,” is violative of article "VT, section 18, of the State Constitution which declares that “ The Legislature shall not hereafter confer upon any inferior or local court of its creation any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon County Courts by or under this article.”</p>

Appeal by defendant from judgment of the City Court of the city of New York, entered on verdict in favor of plaintiff and from order denying motion for a new trial.

<p>Appeal from a judgment rendered in the Municipal Court of the city of New York, borough of Brooklyn, first district, on the 15th day of January, 1916, in favor of the defendant, dismissing plaintiffs’ complaint on the merits.</p>

The case was tried by the court without a jury, and thereafter, on motion, the judgment was vacated and a new trial before a jury ordered; and subsequently the order was modified by striking out the provision for a jury trial.

<p>Motion for compulsory reference.</p>

<p>Injunctions — against unfair use of corporate names — religious corporations.</p> <p>The right to relief by injunction against the unfair and misleading use of a corporate name extends to benevolent, humane and charitable organizations incorporated under the laws of this state. ’</p> <p>An application for an order restraining the operation of an order authorizing “ The Polish Roman Catholic Church of the Holy Mother of the Rosary of Buffalo, N. Y.,” incorporated under the laws of this state and its affairs conducted as an organization acting independently of the jurisdiction of the Roman Catholic Church, to change its name to “ The Polish National Catholic Church of the Holy M'other of the Rosary,” must be denied.</p>

<p>Submission of controversy upon an agreed statement of facts.</p>

<p>Railroads — consolidation ■ of — corporations — Statute of Limitations — injunctions.</p> <p>Upon the consolidation of the New York Central and Hudson River Railroad Company, extending from New York to Buffalo, and the Lake Shore and Michigan Southern Railroad Company, extending from Buffalo to Chicago, their respective lines formed “ a. continuous or connected line of railroad with each other,” within the meaning of section 140 of the Railroad Law.</p> <p>The fact that the New York Central Railroad Company, the successor of said consolidated companies, owns the majority of the stock of various railroad companies whose lines are parallel and competing, or potentially competing, with the railroad of the consolidated company, but serving territory quite distinct ' from that which it serves, furnished no objection to the consolidation.</p> <p>The statutes of several of the states through which the consolidated railroad runs, other than the state of New York, forbidding the consolidation of parallel and competing lines and also various anti-monopoly statutes of said states being penal in character, the courts of the state of New York will make no attempt to execute them.</p> <p>The undisturbed possession under lease of certain railroad properties to one of the parties to the consolidation agreement, in one ease for forty-one years and one for twenty-eight years, prior to the commencement of an action for injunctive relief for the purpose of undoing the consolidation, held to have ripened into a right which under the Statute of limitations may not be challenged by plaintiff.</p> <p>A purchase of stock of other railroads when approved by the public service commission is not subject to collateral attack.</p> <p>It is not the province of a state court at the suit of a private individual to employ the injunctive powers of the court to prevent any alleged violation of the federal statute known as the Sherman Act.</p>

Application under sections 41 and 56 of the Election Law to require custodians of primary records of Kings county to certify and canvass petitioner’s name as member of the Republican county committee.

<p>Bankruptcy — adjudication in — assignment for benefit of creditors — when trustee may maintain action to set aside assignment — evidence.</p> <p>Evidence — admission by assignee of knowledge of assignor’s insolvency— when assignment void.</p> <p>An assignment by an insolvent debtor to a creditor of outstanding accounts for goods sold and delivered, given less than a month prior to the assignor’s adjudication in bankruptcy and upon the secret understanding that the assignee was to take it merely as security for an indebtedness and return to his assignor any accounts or collections in excess of said indebtedness, is fraudulent and void and the trustee in bankruptcy of the assignor may maintain an action to set the same aside as constituting a preference.</p> <p>In the absence of any explanation why the debtor retained control over the accounts after he had assigned them, such retention of control will be deemed a badge of fraud.-</p> <p>Evidenee that the debtor two months before making the assignment conveyed all his real estate to his wife without consideration is competent as showing his intent to defraud his creditors.</p> <p>An admission in the answer of the assignee that he knew at the time of the assignment that his assignor was insolvent and unable to pay his debts in full, and he made a similar admission on his examination in the bankruptcy proceedings, taken with other evidence in the ease clearly shows that the assignee had reasonable cause to believe that the assignment would effect a preference in his favor.</p> <p>The evidence showing that the assignee had notice of the fraudulent intent of his assignor, the assignment was void even though founded in whole or in part upon a valuable consideration.</p>

<p>Parties — who are necessary — pleading — actions — equity.</p> <p>A complaint alleged the appointment of a receiver of a foreign corporation, that thereafter a stockholders’ protective committee was appointed, that defendant was appointed its counsel and that subsequently plaintiff corporation was organized by the advice of such committee and its counsel and defendant became its chairman; that said committee submitted to plaintiff an offer to assign to it the property of the foreign corporation in return for the issue of certain stock by plaintiff; that it was agreed that after the issue of stock to the stockholders of the foreign corporation the remainder of plaintiff's stock should be retained in its treasury and defendant’s compensation settled upon a reasonable basis by agreement between plaintiff and defendant; that defendant using his position as counsel to the committee and chairman of plaintiff’s board of directors,</p> <p>• without authority, caused a larger number of the shares of stock of plaintiff to be issued to himself, and that plaintiff was ready and willing to pay defendant such compensation as might be determined to be reasonable and fair. The prayer for relief' asked that defendant’s compensation be fixed and that he be directed to "surrender the stock so illegally issued to him. Held, that the complaint stated a good cause of action, .and, if the allegations thereof be true, a court of equity has power to grant relief. The acts of defendant were against plaintiff and as the compensation of defendant was to be paid by plaintiff the reorganization committee has no interest in the matter and is not a necessary party.</p>

<p>Workmen’s Compensation Law, § 2 — negligence — meaning of word “ longshore.”</p> <p>Where one employed by a gas company and required to assist in moving stoves and ranges in its building, and to and from its wagons, occasionally riding thereon to buildings occupied by customers of the company, was injured when the tail-board of the wagon from which he was removing a stove gave way and he fell, he was not engaged in “ longshore ” work within the meaning of section 2, group 10, of the Workmen’s Compensation Law (Laws of 1914, chap. 41).</p>

<p>Motion for judgment on the pleadings.</p>

<p>Motion for judgment on the pleadings.</p>

<p>Libel — against corporation — evidence — when motion on ground oi newly discovered evidence granted.</p> <p>On the trial of an action against a corporation for libel in circulating a statement defamatory of plaintiff signed “American Optical Company, H. H. Styll, Legal Dept.,” it was disclosed by the testimony of Styll as a witness for plaintiff that the “ American Optical Company,” by which he was employed at the time he signed such statement, was not the corporation of that-name but was composed of certain trustees to whom said corporation had assigned all its assets and the right to use its name, and that all its business was wound up. He further testified that such corporation name was not a registered trade name. On proof of these facts plaintiff’s attorney claimed surprise and the court of its own motion dismissed the complaint on the merits. Shortly after the trial, as stated in the affidavit of plaintiff’s attorney, if was discovered that the letterheads upon which the alleged libelous article was written state that the “American Optical Company ” was incorporated in 1869. Held, that a motion for a new trial on the ground of newly discovered evidence, surprise and in furtherance of justice should be granted, though plaintiff by diligent inquiry might have ascertained whether the letterheads were so used with the knowledge or consent of defendants, and whether there were not other facts that would show that it might he held as the one responsible for the alleged libel.</p>

Judgment creditor's action to set aside certain conveyances made by the defendant J ohn Oliva, one of the Judgment debtors, to the defendant Michael Graziano.

<p>Motion by defendant for a new trial on the ground that .the verdict is excessive, and for a reduction of the verdict.</p>

<p>Master and servant — when servant abandons service — resumption of service.</p> <p>Where a servant temporarily abandons his .master’s service, the question as to when the service is resumed depends upon the intention of the servant controlled by time and place reasonably coinciding with the line of original duty.</p> <p>A servant, who has temporarily abandoned his master’s service, cannot be said to have resumed it until he ■ has at least reached a point in a zone within which his labors would have been consistent with an act of deviation merely had the original act been such in its other circumstances as to have been one of deviation and not one of temporary abandonment.</p>

<p>Associations — labor unions — action to determine ownership of certain fund.</p> <p>Where in an action to determine the ownership of a certain fund on deposit in a savings bank it appears that though the. fund was deposited to the credit of “ New York Clothing Cutters Local Union No. 4,” a voluntary unincorporated association affiliated with the Amalgamated Clothing Workers of America, it is undisputed that said fund was made up of dues, fines and assessments paid into Local Union No. 4 of the United Garment Workers of America by the members thereof, and that since January, 1915, the members of the Clothing Cutters Local Union No. 4 of the Amalgamated Clothing Workers of America have paid no dues as members of the United Garment Workers of America and have ceased to be members of that organization, said Local Union 4 having been organized and the fund in question collected under an express agreement among its members whereby the organization was to be inseparably connected with the United Garment Workers of America, to which organization it was subordinate, and it having been established that the members of plaintiff Local Union No. 4 have - continuously adhered to such agreement, have retained its name and are carrying out the purposes and objects of said local union as a subordinate body of the United Garment Workers of America, judgment must be awarded to plaintiff.</p>

<p>Associations — unincorporated — constitution and by-laws of — contracts — appeal.</p> <p>The constitution and by-laws of an association, by which members agree to be bound, constitute a contract between them and between the association as a whole and the individual members, and so far as the provisions of the constitution and the by-laws purport to give rights of a civil nature the courts have jurisdiction.</p> <p>Plaintiff is a member of the New York American and Journal chapel of Typographical Union No. 6 and of Typographical Union No. 6, said chapel being a subdivision of said union which, in turn, is the New York local division of the International Typographical Union. Both said Union No. 6 and the chapel are unincorporated associations and the complaint against them and the executive council of the International Typographical Union alleges that defendants violated the constitution and by-laws of the organization in “laying” plaintiff “ off ” and in depriving him of his position on the “ priority ” list of his chapel, and for relief plaintiff demands reinstatement in such priority and damages for loss of wages suffered in consequence of his lay-off, with expenses incurred- in seeking reinstatement. Section 125 of the general laws of The International Typographical Union provides “ The recognition of departments shall be optional with local unions, but in no case shall a foreman transfer a person to a department he is not familiar with and then declare him incompetent. When departments are not recognized by agreement with the local union no employee shall be discharged to reduce the force or for ineompetency while there is work in the office he is competent to do and to which his priority entitles him,” and the by-laws contained a provision that members would “ at all times support the laws, regulations and decisions ” of the union. The Journal shop where plaintiff was employed was a nondepartmental shop and he was laid off and deprived of his priority position on two grounds:</p> <p>First, that “ the union never intended that one union man should take the position of another to save himself from a ‘ layoff,’ ” and, second, that the plaintiff when informed of the impending lay-off should have designated the specific division to which he desired to be transferred, and further, that it was immaterial whether he was given an opportunity to so designate inasmuch as, after having been laid off, he could still have tendered his services for any work to which he considered himself entitled.</p> <p>Held, that as the final decision of the union was reduced to a holding that no rights of plaintiff were violated for the reason that he could have applied to the union to restore them, plaintiff was not bound thereby, as the association tribunals incorrectly construed the laws which constituted the contract between plaintiff and the association.</p> <p>That for the deprivation of his rightful priority position plaintiff had no adequate remedy at law and was entitled to equitable relief for reinstatement in such priority, including as incidental relief his damages for loss of wages suffered by reason of the lay-off, with costs.</p> <p>That plaintiff was not required to avail himself of a provision compelling him to entrust his interest on an appeal to the president of Union No. 6 who himself had already decided the subject of the appeal against plaintiff, as the remedy provided does not accord with natural justice.</p>