author: O’Brien, J.

text:
    In the Matter of the Accounting of Edward Townsend et al., as Executors of Edward H. Perkins, Jr., Deceased, Respondents. Margaret N. Pearce et al., Appellants; Ethel H. Perkins et al., as Executors of Norton Perkins, Deceased, et al., Respondents.
    Will — trust — suspension of power of alienation — possibilities as well as facts must be considered in determining question — trust provision suspending absolute ownership for three lives — not cured by provision authorizing trustees to convey principal to cestui que trustent if, considering habits, capacity and ability, they considered such transfer best.
    1. In testing the question whether power to alienate is absolute and whether ownership is absolute, possibilities as well as facts existing at the time of testator’s death must be considered. A power is not absolute, if reasonable possibilities may prevent its exercise.
    2. Where a testator, by his will, erected a trust for the benefit of his widow and directed that upon her death half of her share should be held in trust for a- son and half for a daughter during their lives and, upon the death of either without issue, his or her share should be held in trust for the survivor during his or her life, there was a clear suspension of the absolute power of alienation and of absolute ownership for more than two lives. And this was not remedied by a further provision that the executors might, on arrival of the son or daughter at twenty-one years of age, pay to them any part or all of the principal if they should judge “ (the habits, capacity and ability of my son or daughter to take care of money and property and all his or her circumstances being considered, independently of any wishes of Ms or hers), that such payment, transfer and conveyance shall be best for my said son or daughter.” The power of the executors was not plenary. They were not in every possible contingency authorized to transfer and convey. Conditions were imposed wMeh under possible contingencies no honest trustee could disregard. Accordingly the absolute power of alienation and of absolute ownersMp remained suspended. (Cushman v. Cushman, 116 App. Div. 763; affd., 191 N. Y. 505; Matter of Trevor, 239 N. Y. 6, distinguished.)
    (Argued June 1, 1927;
    decided July 20, 1927.)

      Matter of Perkins, 219 App. Div. 807, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4,1927, which unanimously affirmed a decree of the New York County Surrogate’s Court judicially settling the accounts of the executors and construing the will of Edward H. Perkins, Jr., deceased.

      Langdon P. Marvin and George W. Martin for appellants.
    The will does not suspend the absolute power of alienation or the absolute ownership beyond the statutory period. (Cadell v. Palmer, 1 Cl. & F. 372; Hawley v. James, 16 Wend. 61; Robert v. Corning, 89 N. Y. 225; Matter of Wilcox, 194 N. Y. 288; Mifflin’s Appeal, 121 Penn. St. 205; Chaplin, Suspension of Power of Alienartion [2d ed.], §§ 43, 47; Whitefield v. Crissman, 123 App. Div. 233.) During the life of the son the trustees had power to convey to him, thus terminating the trust and the future limitations and uniting in him all legal and equitable interests, so that he would have had and could have conveyed “ an absolute fee in possession.” There was, therefore, no possible suspension during the son’s life, for there were at all times persons in being by whom an absolute fee in possession could be conveyed. (Real Prop. Law, § 42.) (Spitzer v. Spitzer, 38 App. Div. 436; Equitable Trust Co. v. Pratt, 117 Misc. Rep. 708; 206 App. Div. 689; Garvey v. McDevitt, 72 N. Y. 556;
      Carrier v. Carrier, 226 N. Y. 114; Robert v. Corning, 89 N. Y. 225; Chanler v. N. Y. Elevated R. R. Co., 34 App. Div. 305; Henderson v. Henderson, 113 N. Y. 1; Deegan v. Wade, 144 N. Y. 573; Matter of Kohler, 193 App. Div. 8; 231 N. Y. 353; Cushman v. Cushman, 116 App. Div. 763; 191 N. Y. 505.)

      Edward N. Perkins and George W. Jaques for Ethel H. Perkins et al., as executors of Norton Perkins, deceased, respondents.
    The trusts in question effect an unlawful suspension of the absolute ownership of personal property in respect of one-sixth of the residuary estate. (Matter of Wilcox, 194 N. Y. 288: Farmers’ L. & T. Co. v. Kip, 120 App. Div. 34.7; Ahnstaedt v. Bendick, 47 App. Div. 265; Simpson v. Trust Co., 59 Misc. Rep. 96; Equitable Trust Co. v. Pratt, 117 Misc. Rep. 708; Schettler v. Smith, 41 N. Y. 328; Matter of Wilcox, 194 N. Y. 288.)

      Myron T. Townsend for Edward Townsend, as executor of Edward H. Perkins, Jr., deceased, respondent.

      William V. Saxe for Louis S. Levy et al., as executors of Mary N. Perkins, deceased, respondents.
   O’Brien, J.

By the third clause of his will, Edward H. Perkins, Jr., directed bis residuary estate to be divided into three equal parts to be held in trust, one for his wife and one each for his son and his daughter. He directed further that, upon the death of his widow, half of her share should be held in trust' for the son during life and half for the daughter during life. Upon the death of either the son or the daughter without issue, his or her share should be held in trust for the survivor during his or her life with remainder to the issue of the survivor. The testator died in 1902, the widow in 1923 and the son, without issue, in 1925. If the will included no other direction respecting the trust, these terms clearly would violate our statutes prohibiting the suspension of the absolute power of alienation and of absolute ownership during more than two lives. (Real Prop. Law [Cons. Laws, ch. 50], sec. 42; Pers. Prop. Law [Cons. Laws, ch. 41], sec. 11; Matter of Horner, 237 N. Y. 489.) By these terms standing alone, the absolute power to alienate one-half of the widow’s share amounting to one-sixth of the residuary estate might be suspended for the duration of the Uves of the widow, the son and the daughter. The will did, however, include this additional provision; “ Sixth; it is my will and I direct that, after my said son or my said daughter shall arrive at twenty-one years of age, my said executrix and executors and the survivor of them and their successors and the successor of either of them or a majority of them have power and authority, which is hereby given to them, to pay, transfer and convey to my said son or daughter at one time or at as many thnes as they shall deem for his or her best interests, any part or parts or all of the principal and fee of the property above directed to be paid and invested for his or her benefit, but no such payment, transfer or conveyance shall be made unless the executrix and executors of this will or a majority of them shall judge (the habits, capacity and ability of my son or daughter to take care of money and property and all his or her circumstances being considered, independently of any wishes of his or hers), that such payment, transfer and conveyance shall be best for my said son or daughter.”

Appellants argue with great ability and learning that by the sixth clause the testator conferred power upon the trustees in their discretion to convey to the survivor of the son and the daughter the legal title to the one-sixth of the residuary estate, that such discretionary power is absolute in the sense that it is free from any restraint except an obligation to act honestly and that such an obligation is always implied. They concede that the law of this State requires all future estates to be so limited that in every possible contingency they will absolutely terminate within the period allowed or they will be void (Schettler v. Smith, 41 N. Y. 328, 334; Herzog v. Title G. & T. Co., 177 N. Y. 86, 99; Matter of Wilcox, 194 N. Y. 288, 295), but they urge that here is a complete power always existing throughout at least one of three Uves to terminate the trust and destroy all future limitations, that the absolute power of alienation of real property and the absolute ownership of personal property were not suspended for more than two fives, and, therefore, that the trust as to this one-sixth of the residuary estate could have been terminated within the prescribed duration.

We cannot fully convince ourselves that the trustees’ power was plenary. To resist the persuasion that some restriction was placed upon it seems to be impossible. The limitation might perhaps be slight; it depended upon the trustees’ judgment. Their judgment in turn was subject to possibilities which might not and never did in this case develop into facts. Yet they might have happened. If they had, no. power to alienate could have existed. Events outside the testator’s and the trustees’ control conceivably could occur which would prevent intelligent fiduciaries from honestly transferring and conveying the corpus of the trust estate. The validity of the provisions of this will must be determined not by what has happened but by what might have happened under them. (Monypeny v. Monypeny, 202 N. Y. 90, 93.) The testator imposed conditions which under possible contingencies no honest trustee could disregard. He must be presumed to have selected trustees who possessed at least fair intelligence and in whom he confided. Their judgment respecting the welfare of the cestui que trustent must be governed by the habits, capacity and ability of the beneficiaries to .care for money and property together with all their other circumstances as the trustees view them. The testator had so charged them. If the son or the daughter possessed or acquired credulous, improvident, reckless or dissipated qualities and if the trustees were aware of such characteristics, or even believed that they existed, who will assert that they honestly could put in control of property persons who were incompetent or whom they considered incompetent? The possibility was always present that they could convey only by acting contrary to their judgment. Fortunately, neither of the testator’s children displayed any such disposition nor did the trustees think they did, but these facts are not essential. In testing the question whether power to alienate is absolute and whether ownership is absolute, possibilities as well as facts existing at the time of testator’s death must be considered. A power is not absolute if reasonable possibilities may prevent its exercise. This will indicates that the testator suspected, perhaps only remotely, the existence of such possibilities, for, if he had intended to vest his trustees with a discretion perfectly free, he would not have insisted that they be guided and their judgment be confined by the factors which he specified.

In Robert v. Corning (89 N. Y. 225) executors possessed unqualified power to sell at any time within three years after the death of the testator and were under compulsion to do so. Not only was such authority conferred, the duty to exercise it was enjoined in peremptory language. The only discretion left to them was the right to postpone the sale for three years. We held that even in the absence of any provision in the will, the executors would have had a reasonable discretion as to the time of sale to be exercised in view of all the circumstances. There was an imperative obligation to sell by the end of three years and a discretionary power to sell sooner. These combined elements rendered certain a reasonably early sale. When trustees are prohibited from alienating, even for a short term, the trust is void. We enforced that rule in a case where the- power was suspended for four years (Garvey v. McDevitt, 72 N. Y. 556). In Henderson v. Henderson (113 N. Y. 1) no trust was created. The real estate was devised to the testator’s children who took their interest at his death. A duty to sell, similar to that in Robert v. Corning (supra), was imposed upon the executor. He was allowed in his discretion to postpone the sale for five years, but during that time the children, all of full age, could have united with him in a conveyance. In Deegan v. Wade (144 N. Y. 573) a testator who died in October, 1890, gave an imperative power of sale to his executor with a direction that it be executed in the spring of 1891. This instruction, instead of postponing, facilitated the sale and amounted to nothing more than a request that it be made at a date earlier than the expiration of the ordinary period of administration. Cushman v. Cushman (116 App. Div. 763; affd., 191 N. Y. 505) does not run counter to the principle now under consideration. We decided nothing more than that a trustee under a will, which did not suspend the power of alienation for more than one life, could not be compelled to exercise his discretion in such a manner as to put a beneficiary in possession of the corpus of the trust estate. No other actual determination was necessarily made by us. The opinion at the Appellate Division decided that, while there was only one trust fund, three separate trusts had been created, no one of which continued for a duration extending beyond one fife and that the interest of each of the three beneficiaries was a future estate in expectancy, contingent upon an uncertain event. In order to avoid suspension of the absolute power to alienate, events must be certain. In every possible contingency, the future estate must terminate not later than the end of two lives. Cushman’s will was saved from the charge of attempting to suspend the absolute power of alienation for more than two lives by the fact that provision, was made for the termination of each trust at the expiration of the life of each beneficiary. If that will had contemplated the possible suspension of the power for more than two fives, as we think the will before us attempts to do, it would have been void. In both wills the vesting of the beneficiaries’ interest is contingent upon uncertain events. In Matter of Trevor (239 N. Y. 6) the will was so construed that the interests of certain minors vested absolutely at the end of the second fife. The majority also thought that the dominant purpose of the testator was such that it did not offend the statutes against perpetuities and applied the principle that invalid portions of a will can be excised and the sound parts preserved. (Carrier v. Carrier, 226 N. Y. 114.) These are the precedents cited by appellants in their thoughtful brief but we think that all of them can fairly be distinguished from the facts in the present case.

We hold, therefore, that the sixth clause of Mr. Perkins’ will does not create a more extensive power than an authority dependent for its existence upon such a judgment of the trustees as would result from an honest and reasonably intelligent appraisal of the characteristics and circumstances of the testator’s son and daughter. As we read his purpose, he intended that, if their qualities would not, according to the standard of honest and ordinarily intelligent estimation, justify a conveyance to them, any transfer would be in contravention of the trust. It may be that no judicial power exists to review and overthrow a conveyance by the trustees which might be imprudent. Absence óf a remedy for the correction of errors of judgment does not, however, bear upon the testator’s intent. We view his primary purpose to be a restriction upon the trustees’ power to transfer in the event that his children, judged by ordinary standards, should fail' in sobriety, prudence and poise as reasonably intelligent people regard these attributes. That clearly appears to have been his dominant idea respecting one-sixth of his residuary estate and it includes a conditional prohibition. It is apparent that he seriously considered the possibility that his children might lack the qualities which he deemed essential for the control of property and that the trustees might so judge. He did not leave their judgment wholly free. It was circumscribed by his injunction which they were bound to respect and obey. Therefore, they were not in every possible contingency authorized to transfer and convey, and, accordingly, absolute power of alienation and absolute ownership were suspended for more than two lives.

The judgment should be affirmed with costs, payable out of the estate.

Cardozo, Ch. J., Pound and Kellogg, JJ., concur; Crane and Andrews, JJ., dissent; Lehman, J., absent.

Judgment affirmed, etc.


source: Caselaw Access Project

author: Cabdozo, Ch. J.

license: Public Domain

text:
    Martha J. Smith, as Executrix of Mary J. Smith, Deceased, Appellant, v. Michael F. Loughman et al., Constituting the State Tax Commission, Respondents.
    Tax — transfer tax — constitutional law — validity of classification for purposes of taxation — special burden laid upon members of a group discriminatory notwithstanding special privilege is granted to members of another — article 10-A of Tax Law providing for transfer tax upon succession to property of non-residents within this State invalid.
    1. Classification for purposes of taxation may be supported by many considerations of expediency or fairness and, none the less, may be illegal if it denies to the citizens of any State the privileges and immunities that belong to citizens of another.
    2. A special burden laid upon the members of a group as the price of a given act does not cease to be discrimination because a special privilege is granted in connection with another and unrelated act. One who wishes to do the first may never wish to do the second.
    3. Article 10-A of the Tax Law (L. 1925, ch. 143, § 9; Cons. Laws, ch. 60) imposing a tax on transfers by will or intestate succession of property of non-residents within this State, in some instances vastly heavier and in other instances lighter than the amount imposed on like transfers of property of residents, non-residence without more being made the basis for the divergent burdens of one class and another and the inequalities persisting whenever certain classes of non-residents are compared with like classes of residents, is violative of section 2 of article 4 of the Federal Constitution declaring the citizens of each State to be entitled to the privileges and immunities of citizens in the several States.
    (Argued May 31, 1927;
    decided July 20, 1927.)

      Smith v. Loughman, 220 App. Div. 790, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 11, 1927, which confirmed a determination of the State Tax Commission assessing a transfer tax upon the estate of Mary J. Smith, deceased, a non-resident of the State.

      Joseph F. McCloy, John L. McMaster, Edward H. Pattison and Herbert W. Smith for appellant.
    Article 10-A involves arbitrary and unequal regulations, prescribes different rates of taxation on property or persons in the same condition and discriminates between residents and non-residents in the imposition of this tax. (Stuart v. Palmer, 74 N. Y. 183; Maxwell v. Bugbee, 250 U. S. 525; Frick v. Pennsylvania, 268 U. S. 473; Watson v. State Comptroller, 254 U. S. 122; Travelers’ Ins. Co. v. Conn., 185 U. S. 364; Travis v. Yale & Towne Co., 252 U. S. 60.) Expediency is no justification for the flat-rate tax on non-residents. (Schlesigner v. Wisconsin, 270 U. S. 230; Matter of McMullen, 199 App. Div. 393; 236 N. Y. 518; Matter of Lowell, 208 App. Div. 201; 239 N. Y. 532; Matter of Gates, 243 N. Y. 193; Rhode Island Hospital Trust v. Daughten, 270 U. S. 69.)

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for respondents.
    The classification for tax purposes between transfers from residents and transfers from non-residents is not arbitrary. It rests upon real differences to which the different treatment for tax purposes is appropriate. (State Tax on Foreign-held Bonds, 82 U. S. 300; Knowlton v. Moore, 178 U. S. 57; New York Trust Co. v. Eisner, 256 U. S. 345; Keith v. Johnson, 271 U. S. 1; Matter of Merriam, 141 N. Y. 479; 163 U. S. 625; Home Trust Co. v. Law, 204 App. Div. 590; 236 N. Y. 607; Stebbins v. Riley, 268 U. S. 121; Bell’s Gap R. R. v. Pa., 134 U. S. 232; Magoun v. Illinois Trust & Savings Bk., 170 U. S. 283; Bd. of Education v. Illinois, 203 U. S. 553; Keeney v. New York, 222 U. S. 585; Maxwell v. Bugbee, 250 U. S. 525; Watson v. State Comptroller, 254 U. S. 122; Bankers Trust Co. v. Blodgett, 260 U. S. 647.) The different treatment does not discriminate against non-residents or their estates. . (Maxwell v. Bugbee, 250 U. S. 525; Travelers’ Ins. Co. v. Connecticut, 185 U. S. 364; Travis v. Yale & Towne Mfg. Co., 252 U. S. 60; Gen. Am. Tank Car Corp. v. Day, 270 U. S. 367; Hanover Ins. Co. v. Harding, 272 U. S. 494.)
   Cabdozo, Ch. J.

Mary J. Smith,' a resident of the State of Connecticut, died in November, 1925, leaving real and personal property which she devised and bequeathed to her four children. Included in her property was a parcel of real estate in the city of New York of the value, above the incumbrances, of $29,490.87, the value of the share of each child being thus $7,372.72. If the testatrix had been a resident of New York, the transfer of these shares by will would have been subject to a tax of $23.72 for each, or $94.90 for all. The tax as to each would have been computed at the rate of one per cent after allowance of $5,000, the statutory exemption. Because the testatrix was a non-resident, the four shares must bear a tax of $589.98. The question is whether such discrimination can be reconciled with that provision of the Constitution of the United States whereby the Citizens of each State are declared to be entitled to the Privileges and Immunities of Citizens in the several States ” (U. S. Constitution, art. IV, § 2).

Until the adoption of article 10-A of the "Tax Law in 1925 (L. 1925, ch. 143, § 9; Cons. Laws, ch. 60), the transfer tax in this State was imposed at the same rate and was subject to like exemptions and deductions whether the transfer was by resident or non-resident. The rate varied with the relationship between the testator and the devisees or legatees. A gift to a child, for illustration, was subject to an exemption of $5,000, and was taxed at one per cent upon the first $25,000 of the excess, and at higher rates upon successive increments. A gift to a friend, if for not more than $500, was free from any burden, and was taxed, if for a larger sum, at rates varying with the value from five per cent to eight. In the computation of the value, deductions were allowed for the debts and expenses of the estate, or the part thereof borne by the interest subject to the tax, the burden being proportioned to the clear market value of the property transferred. For the ascertainment of these facts there was need of an elaborate procedure which was laborious and at times vexatious even when followed in the jurisdiction of the domicile. Complaints .were heard at times that the vexations were excessive when the procedure had to be followed, not in one State, but in several. The ascertainment of the tax in a subsidiary jurisdiction had to wait upon the ascertainment of the debts and the winding up of the estate in the place of primary administration. This made the process of assessment dilatory and expensive, to the prejudice at times of the State and at times also of the taxpayer, whose property might be tied up until the assessment was completed. Evils such as these were from time to time recounted and deplored in the official reports of the State Tax Commission. They are not peculiar by any means to the assessment of taxes upon the estates of nonresidents. Many of the same hardships or inconveniences are incidental to the administration of the estates of residents. The difference is chiefly this, that the nonresident has an added grievance in going through the process more than once, at home and then abroad.

The Legislature of 1925, acting no doubt upon the recommendation of the Tax Commission of the State, split the system of transfer taxes into two parts. Under the Tax Law as thus amended, there is one scheme of taxation for transfers by residents, and another for transfers by non-residents. The tax upon transfers by will or intestate succession where the owner of the property was at death a resident of the State, is governed by article 10. It is substantially what it was before. The tax upon transfers by non-residents is governed by a new article of the statute, known as 10-A. Under this article a tax is imposed whenever the subject of the transfer is real or tangible personal property within this State,” shares of stock in domestic corporations or in national banking associations located in this State, interests in partnerships doing business in this State, or capital invested in business in the State (§ 248). The tax is to be three per cent of the clear market value, i. e.¡ the value after deducting a proportionate share of the debts and expenses of administration (§§ 248-a, 248-b). If, however, the executor or administrator prefers, he may waive the right to such deductions, and pay a flat rate of two per cent (§ 248-b). Such a choice will be profitable whenever the debts and expenses are less than a third of the gross estate subject to taxation. So, in the case at hand, the executrix elected to pay the flat rate of two per cent if the estate was to be taxed at all. A flat rate of two per cent upon the value of the gross estate is, however, a much heavier burden, as already pointed out, than the devisees would have had t<? bear if the testatrix had been at the time of her death a resident of New- York. So it must always be when the gift is moderate in amount and goes to husband or wife or persons very near of kin. There is nothing in the -record to give support to a belief that the flat rate will so lessen the cost of collection as:to reinstate equality (cf. Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 81). Even without the alternative now offered by the statute — the alternative of a flat rate or a higher one with' deductions — an executor who found it too expensive to establish the net value of a legacy by making proof of the debts, was free, with the consent of the legatee, to abandon the deductions and pay upon the gross. Reports are necessary even now, and also appraisals of market value, and appeals where there is error. True, of course, it is that with changes in the class of donees or in the value of the gift, the comparative results will differ. " For illustration, the tax on a legacy of $5,000 to a father, mother, husband, wife or child is $100 for a non-resident, and for a resident nothing; on a legacy of $10,000, $200 for a non-resident, and for a resident $50; on one of $50,000, $1,000 for a non-resident and for a resident $650; on one of $100,000, $2,000 for a non-resident and $1,650 for a resident; on one of $250,000, $4,000 for a nonresident, and $4,600 for a resident. On the other hand, the tax on a legacy of $500 to a friend is $10 for a nonresident, and nothing for a resident; on one of $10,000, $200 for a non-resident and $500 for a resident; on one cf $100,000, $2,000 for a non-resident, and for a resident $5,750. The non-resident suffers in the intimate and lower schedules and gains in the remote and upper ones. Such is'the setting of fact in which the legal problem is imbedded.

The State does not establish the validity of this act by showing that from certain points of view or in aid of certain purposes a classification discriminating between residents or non-residents has a basis, not wholly illusory, in policy or reason. There is no occasion to inquire whether such a showing would suffice if we were dealing with the equal protection clause of the Fourteenth Amendment, and nothing else. We deal in fact with something more. The power of a State to make reasonable and natural classifications for purposes of taxation is clear and not questioned; but neither under form of classification nor otherwise can any State enforce taxing laws which in their practical operation materially abridge or impair the equality of commercial privileges secured by the Federal Constitution to citizens of the several States ” (Chalker v. Birmingham & N. W. Ry. Co., 249 U. S. 522, 526). Classification may be supported by many considerations of expediency or fairness and, none the less, may be illegal if it denies to the citizens of any State the privileges and immunities that belong to citizens of another. To put it differently, equality in such circumstances is itself the highest policy, to which other policies must bow. The Constitution so commands. Few of its commands, if any, have had an influence more profound upon the attainment and preservation of the unity of the nation (Paul v. Virginia, 8 Wall. [U. S.] 168, 180; Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78, cf. Hanover Fire Ins. Co. v. Carr, 47 Sup. Ct. 179.)

By the Tax Law of this State, an act that in any case is one and the same — the transfer of a parcel of real estate by will — is subjected to burdens of taxation that differ fundamentally, and not occasionally or in points of detail, according as the doer of the act is a citizen of one State or another. The distinction in form is between resident and non-resident; but a general taxing scheme such as the one under consideration, if it discriminates against all non-residents, has the necessary effect of including in the discrimination those who are citizens of other States ” (Travis v. Yale & Towne Mfg. Co., supra, at p. 79), and will stand or fall accordingly. In some instances the burden for the non-resident is vastly heavier than for the resident. It is so in this case. It is so, as we have seen, whenever the gift is to a child or a parent or a husband or wife, unless the value is very high. In other instances, as in many where the gift is to a stranger to the blood, the burden for the non-resident may be lower than for the resident. Whether these inequalities will balance one another in the long run as applied to non-residents generally, we can do little more than guess. What is certain is that the inequalities will not balance, but will inevitably persist, whenever certain classes of non-residents — e. g., children or parents — are compared with like classes of residents. What is also certain is that non-residence without more has been made the basis for the divergent burdens of one class and another. The citizen of New Jersey or Connecticut who is the owner of property in New York and who wishes to dispose of it by will, finds a body of law in New York applicable to citizens of New Jersey or Connecticut fundamentally at variance with the body applicable in like conditions to citizens of New York. He may not act upon equal terms with his neighbor who lives on the other side of the State line. The exactions for the two classes have a different operation as to each, not by accident, but of set purpose. At times heavier and at times lighter, they are never the same.

A State is not at liberty to establish varying codes of law, one for its own citizens and another, governing the same conduct, for citizens of sister States. Of course, one may not press this principle to a' drily logical extreme” (Noble State Bank v. Haskell, 219 U. S. 104, 110). At times, the character of the act may be so affected by the residence of the actor as to call for varying regulation with a view to the attainment in the end of a truer level of equality. Thus, non-residents resorting to our courts may be compelled to give security for costs (Canadian Northern Ry. Co. v. Eggen, 252 U. S. 553, 561, 562; Robinson v. Oceanic S. N. Co., 112 N. Y. 315, 324, 325), and travelers using our highways for motor cars may be required to submit to appropriate regulations for the service of process if accident results as an incident of travel (Hess v. Pawlowski, 274 U. S. 352). In these and like cases, the effect of the apparent discrimination is not to cast upon the non-resident a burden heavier in its ultimate operation than the one falling upon residents, but to restore the equilibrium by withdrawing an unfair advantage. “ It makes no hostile discrimination against non-residents, but tends to put them on the same footing as residents. Literal and precise equality in respect to this matter is not attainable; it is not required ” (Hess v. Pawlowski, supra). Instances of a like order can be found in statutes prescribing the form and measure of taxation. ‘Resident stockholders in Connecticut were paying a tax upon the value of their shares with deduction allowed for the value of real estate. Such a deduction was not allowed to non-residents. The inequality was only apparent, for residents were taxed in other ways (Travellers Ins. Co. v. Conn., 185 U. S. 364). Domestic corporations in Louisiana paid a tax upon oil. Non-residents paid a heavier tax. Again the discrimination was only apparent, for the tax upon the foreign corporation was declared to be in lieu of others (General Am. Tank Car Corp. v. Day, 270 U. S. 367, a case involving, however, the Fourteenth Amendment rather than the guaranty under article IV of the equal privileges of citizens). In these and like cases, the difference in treatment, whatever it may have been, was made necessary by conditions inseparably interwoven with difference of residence, and was proportioned to the necessity. Only for this was it upheld.

The statute now before us does not use its discriminations to establish measure and proportion, its discords as a means to harmony. Something more is here than a failure to attain equality “ with mathematical exactness ” (Per Stone, J., in General Am. Tank Car Corp. v. Day, supra); more than an “occasional or accidental inequality due to circumstances personal to the taxpayer ” (Pitney, J., in Travis v. Yale & Towne Mfg. Co., supra at p. 80). What is here is an inequality that is purposed and pervasive. The Supreme Court held in Travis v. Yale & Towne Mfg. Co. (supra) that a State income tax was void in its application to non-residents for failure to accord to them the exemption of $2,000 accorded by the same State to residents. Deeper by far and wider is the difference of treatment here. To discrimination in respect of exemption there is added discrimination in respect of rates. A special burden laid upon the members of a group as the price of a given act does not cease to be discrimination because a special privilege is granted in connection with another and unrelated act. One who wishes to do the first may never wish to do the second. It is small comfort to a parent who plans a gift of land of the value of $5,000 for the benefit of his child to learn that he would be a gainer by the new tax if he were giving land of the value of a million dollars to a cousin or a friend. No doubt a taxing system may be upheld though occasionally and incidentally ” (Maxwell v. Bugbee, 250 U. S. 525, 543) individuals may suffer. In the case cited the formula of apportionment was framed to produce equality. The court let it stand though there was evidence that in a few instances it resulted in inequality. What was general prevailed over what was unintended and exceptional. The inequalities wrought by this enactment have not been kept within those limits. Great classes of persons, all or nearly all who bear a close relation to those who take the gift, many, though not all, whose relation is more distant, must pay a penalty to the tax-gatherer because ^of their non-residence. This is hostile discrimination, however generous the profession of benevolent paternalism.

The State does not contend that the new system was adopted as a check upon evasion. Evasion as to subject-matter is impossible when the thing to be transferred is land. Evasion as to deductions is a danger almost equal whether the transfer is the act of non-resident or of resident. The absence of such a motive is indeed attested by the fact that now as of old there must be an accounting for debts and expenses, if the executor or administrator does not elect to forego it. The State does not insist upon the flat rate which avoids the computation of the . net value of the gift. The choice is for the taxpayer. We have no thought to deny the power of the State to offer an alternative method of taxation to non-residents who prefer it. The alternative may not be granted as the price of escape from a discriminatory burden. The Legislature has been unwilling to put in force for its own citizens a system taxing at a single rate the gift of the humble worker for the support of wife or child and the gift of the banker or the merchant prince to distant relatives or friends. A set of rules believed to be intolerable for residents has been established against others. Courts will be slow to say that all this can be done without other discrimination than is benignant and beneficent.

Much has been said in argument about the desire of the Tax Commission and the Legislature to avoid multiple taxation. There is a section of the statute to the effect that the tax shall not be payable “ if the transferor is a resident of a state or territory of the United States which at the time of the transfer did not impose a transfer tax or death tax of any character in respect of personal property within said state or territory of residents of this state,” or if the laws of such State or Territory contain other provisions insuring reciprocity of treatment (§ 248-p). The power of the State to forego a tax upon a transfer by a non-resident in order to give effect thereby to a plan of reciprocity does not mean that a tax may be imposed at excessive or unequal rates when reciprocity is lacking. ■

The principle of equal treatment for the citizens of all the States is a good more precious than the gain of revenue in one year or another. We are not to whittle it down by refinement of exception or by the implication of a reciprocal advantage that is merely trivial or specious. The principle is put in jeopardy — there is set in it an entering wedge that may be the beginning of its destruction— if this statute is upheld.

The order of the Appellate Division should be reversed and the determination of the State Tax Commission annulled, with costs in all courts.

Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ., concur.

Ordered accordingly.


author: Per Curiam.

text:
    In the Matter of the City of New York, Relative to Acquiring Title to Lands on West 205th Street in the Borough of Manhattan. In the Matter of Northern Terminal Corporation of New York, Appellant; The Chamberlain of the City of New York et al., Respondents.
    (Argued May 31, 1927;
    decided July 20, 1927.)
    New York city — condemnation proceedings — conflicting claims to award — money paid into court — erroneous refusal of Appellate Division to direct payment of awards to rightful owner on ground its right thereto is so clear that money should not have been paid into court.
    Under section 1439 of the charter of the city of New York (L. 1915, ch. 596), providing that where there are conflicting claims to an award in condemnation proceedings the money shall be paid into court and be paid out as the Appellate Division in the judicial department where the property is situated shall direct, it is error for the Appellate Division to decline to make an order directing payment of moneys on the ground that the petitioner’s right thereto is so clear and certain that the moneys should never have been paid into court. They should be paid forthwith to the treasurer of the petitioner, a corporation, where •upon the face of the record the undisputed facts show that he was lawfully elected.

      Matter of City of New York (West 205th St.), 219 App. Div. 459, reversed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 18, 1927, which unanimously denied an application for an order directing payment of an award made in condemnation proceedings.

      Charles J. Nehrbas and Herbert R. Kaus for appellant.
    Appellant’s application was properly made to the Appellate Division in the first department. (Heiser v. Mayor, etc., 104 N. Y. 68; Matter of Trull v. O’Brien, 210 App. Div. 628; 240 N. Y. 587; Matter of City of New York, 114 App. Div. 519.) The chamberlain should be ordered to draw his warrant to the order of the Northern Terminal Corporation of New York, and to deliver the warrant to the company’s treasurer. (Vernon Soc. v. Hills, 6 Cow. 23; All Saints Church v. Lovett, 1 Hall, 213; Ebaugh v. German Reformed Church, 3 E. D. Smith, 60; Lewis v. Matthews, 161 App. Div. 107; Wallace v. Walsh, 125 N. Y. 26; Matter of Ringler & Co., 204 N. Y. 30; MacMahon v. Stepney Agency, 140 App. Div. 554.)

      George P. Nicholson, Corporation Counsel, J. Joseph Lilly and A. S. Aleinkoff for chamberlain of city of New York, respondent.

      W. B. Roulstone and Ralph G. Gordon for James N. Butterly, respondent.
   Per Curiam.

The Greater New York charter, in section 1439 (Laws 1915, ch. 596), provides that in condemnation proceedings, where there are adverse, or conflicting claims to the money awarded as compensation, the city shall pay such award into court ” and that such moneys shall be paid out as the Appellate Division of the supreme court in the judicial department in which the real property for which the award was made is situated, shall direct.” Moneys to which the applicant, the Northern Terminal Corporation of New York, became entitled in condemnation proceedings, were paid into court by the comptroller, under the section cited, because of a doubt arising as to which of two sets of rival claimants were the duly elected officers of such corporation, entitled to act in receiving the moneys for it. The Appellate Division of the first department has declined to make an order directing the payment of the moneys to the Northern Terminal Corporation, for the reason, not that there was doubt as to its right thereto, but that its undisputed right was so clear and certain that the moneys should never have been paid into court. However this may have been, the fact remains that the moneys are in court awaiting an order of disbursement by the Appellate Division to their rightful owner. They certainly should not forever remain undisbursed because they may have been wrongly lodged in court. We think that they should be paid out forthwith to the Northern Terminal Corporation of New York. We think, also, that a check for the moneys, payable to such corporation, may properly be delivered into the hands of Frank J. Heaney as treasurer of the corporation. The facts are not in dispute, upon the face of this record, that he is the lawfully elected treasurer of the corporation; that he was duly elected by its directors; that the directors electing him were themselves elected at a regularly called meeting of stockholders; that two-thirds of the stockholders of record of such corporation attended in person or by proxy at the meeting; that the directors elected were themselves stockholders.

The order of the Appellate Division should be reversed and the application granted for the payment of the moneys to the Northern Terminal Corporation of New York in accordance with this opinion, with costs in the Appellate Division and in this court.

Cardozo, Ch. J., Pound, Crane, Andrews and Kellogg, JJ., concur; O’Brien, J., not sitting; Lehman, J., absent.

Ordered accordingly.


author: ■ Cabdozo, Ch. J.

text:
    Ellen S. Barlow, Respondent, v. Charles W. Berry, as Comptroller of the City of New York, et al., Appellants.
    (Submitted June 22, 1927;
    decided July 20, 1927.)
    Constitutional law — taxpayer’s action — New York city — section 288-a of charter providing for promotion to captain of police of lieutenant with specified service record unconstitutional —.choice by Legislature of substitutes for competitive examination may not be used as cover for arbitrary preference.
    1. Section 288-a of the charter of the city of New York (L. 1923, ch. 778), providing “ the police commissioner, in his discretion,, may promote to the rank of captain a lieutenant of police who has been a member of the force for at least thirty-five years, a lieutenant of police for at least twenty years, and has been acting captain of a precinct or squad for at least seven years, and who is on the eligible list of the civil service in existence January first, nineteen hundred and twenty-three, for promotion to the rank of captain,” is an evasion of the civil service provision of the State Constitution (Art. 5, § 9) and an injunction restraining payment of salary as captain of police to one promoted thereunder is properly granted in a taxpayer’s action.
    2. Assuming that the Legislature has discretionary power to substitute other tests, such as experience or valor, for those of competitive examination, if there is a reasonable basis for the belief that the latter are inadquate, the choice of substitutes or equivalents may not be used as a cover for a merely arbitrary preference.

      Barlow v. Craig, 217 App. Div. 744, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 22, 1926, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, J. Joseph Lilly and Arthur Sweeny of counsel), for appellants.
    The possession of qualifications for promotion by lieutenants of police prescribed by the Legislature in chapter 778 of the Laws of 1923 did not constitute an arbitrary exception to the requirements of the Civil Service Law that appointments and promotions must be made from those standing highest on competitive eligible 'lists within four years of establishment. (Matter of Barthelmess v. Cukor, 231 N. Y. 435; People ex rel. Schlepp v. Knox, 48 App. Div. 477; People ex rel. Leary v. Knox, 166 N. Y. 444; Hale v. Worstell, 185 N. Y. 247; People ex rel. Murphy v. Bingham, 130 App. Div. 112; 196 N. Y. 519; People ex rel. Carter v. Rice, 135 N. Y. 473; Lawson v. Steele, 119 N. Y. 221; People ex rel. Peaks v. Voorhis, 243 N. Y. 420.)

      Charles G. F. Wahle and Loring M. Black, Jr., for Philip Grosback, appellant.
    Section 288-a of the Greater New York charter is not prima facie unconstitutional. (Hermitage Co. v. Goldfogle, 204 App. Div. 710; 236 N. Y. 555.) The Legislature has the power to recognize unusual experience and to add it as a qualification in favor of those on the “ Eligible List ” possessing it as against others thereon not similarly situated. Section 288-a of the charter is, therefore, not unconstitutional. (Matter of Keymer, 148 N. Y. 219; People ex rel. Sweet v. Lyman, 157 N. Y. 368; People ex rel. Leary v. Knox, 166 N. Y. 444; People ex rel. Schelpp v. Knox, 48 App. Div. 477; Hale v. Worstell, 210 App. Div. 716; 185 N. Y. 247; People ex rel. Moriarity v. Creelman, 206 N. Y. 570; Matter of Barthelmess v. Cukor, 231 N. Y. 435.)

      Albert De Roode and H. Eliot Kaplan for respondent.
    The statute is clearly unconstitutional in so far as it purports to authorize the appointment to a competitive position of a particular individual or class of individuals without competitive examination. (Matter of Barthelmess v. Cukor, 231 N. Y. 435; Murray v. Kaplan, 206 App. Div. 202; Hale v. Worstell, 185 N. Y. 247; Schieffelin v. Kelliher, 209 N. Y. Supp. 491.) The appointment of the defendant Grosback on December 24, 1923, after the expiration of the eligible list from which he was authorized to be appointed was illegal. (Brown v. Craig, 209 App. Div. 11.)
   ■ Cabdozo, Ch. J.

This is a taxpayer’s action to restrain the Comptroller of the city of New York and other city officials from paying to the defendant Philip Grosback the salary of a captain of police.

An application for a temporary injunction, denied by the Special Term, was granted by the Appellate Division in an opinion by Martin, J., writing for a unanimous court (210 App. Div. 716). Final judgment for the same relief followed. The affirmance of that judgment is now before us for review.

On January 1, 1923, Grosback, a lieutenant of. police, was No. 84 on the eligible list of the civil service for promotion to the rank of captain. His place upon the list postponed him in advancement to many other officers who had won a higher standing.

In this situation, the Legislature on May 24, 1923, added to the New York charter a section numbered 288-a (L. 1923, ch. 778), which reads as follows:

“ The police commissioner, in his discretion, may promote to the rank of captain a lieutenant of police who has been a member of the force for at least thirty-five years, a lieutenant of police for at least twenty years, and has been acting captain of a precinct or squad for at least seven years, and who is on the eligible fist of the civil service in existence January first, nineteen hundred- and twenty-three, for promotion to the rank of captain.”

Grosback was appointed to the force in October, 1884 (thirty-nine years before the passage of the act), became a sergeant or lieutenant in January, 1901 (twenty-two years before), an acting captain in October, 1908 (fourteen years before), and on January 1, 1923, was on the fist then in existence of those eligible for promotion. He was made captain by order of the Police Commissioner under the new section of the charter.

Within the principle of our decision in Matter of Barthelmess v. Cukor (231 N. Y. 435) the act of 1923 (L. 1923, ch. 778) is an evasion of the civil service provisions of the Constitution of the State.

We are told that the Legislature has discretionary power to substitute certain other tests, such as experience or valor, for those of competitive examination, if there is a reasonable basis for the belief that the latter are inadequate (People ex rel. Schelpp v. Knox, 48 App. Div. 477; People ex rel. Leary v. Knox, 166 N. Y. 444). Granting that this is so, the choice of substitutes or equivalents may not be used as a cover for a merely arbitrary preference. Here, upon the face of the. statute, the signs are unmistakable that a favor is to be conferred upon a single member of the force by making length of service count for him when it is to count for no one else. “ The stigmata of arbitrary selection, of forced and unnatural classification,” are as plain as in another case (Matter of Mayor, etc., of New York [Elm Street], 246 N. Y. 72). The act would have been more sincere, and not different in effect, if it had designated its beneficiary by name, and not by the roundabout method of a description of his record.

Nothing in that record supplies a reasonable basis for a preference so particular. Every member of the force who is to be promoted to the rank of captain must reach his promotion after going through the lower grades. This means, almost inevitably, that every member so advanced will have served a long time before arriving at the goal. To choose one time-record out of many and jump the officer who answers to it over all others on the list is to restore partisanship and favoritism, or at least the danger of those evils, in the creation of the civil service. There is no denial of the power of the Legislature to make experience a- factor in determining promotion. What is denied is the power to establish such a test for one applicant without establishing it for others in the same or like conditions. Some qualities, such as those of bravery or heroism, are unique and incommensurable (People ex rel. Leary v. Knox, supra). They refuse, like originality or genius, to stay within a class. Exceptions appropriate at such times must not be stretched to take within their shelter the merit, more pedestrian, of mere adherence to the job. These plodding virtues are not so rare that their possessors, however estimable, cannot be classified in groups. The mandate of the Constitution is that merit and fitness shall be ascertained so far as practicable ” by competitive examination (Constitution, art. V, § 9; Matter of Barthelmess v. Cukor, supra; Matter of Ottinger v. State Civil Service Comm., 240 N. Y. 435). Discretion there is in determining the limits of the practicable. It is not, however, an uncontrolled discretion, but one subject to the teachings of experience and the supervision of the courts (Matter of Ottinger, supra, at p. 441). The range of selection must be determined by a principle of general application unless the qualities to be preferred are so unique and extraordinary as to bid defiance to classification and call for treatment by themselves. Such plainly are not the qualities that are here selected for reward.

The judgment should be affirmed with costs.

Pound, Crane, Lehman and Kellogg, JJ., concur; O’Brien, J., not sitting; Andrews, J., absent.

Judgment affirmed, etc.


text:
    In the Matter of the Application of Walter H. Taverner Corporation, Appellant, against Charles W. Berry, as Comptroller of the City of New York, et al., Respondents.
    (Argued February 21, 1927;
    decided March 29, 1927.)

      New York city — municipal corporations — contract — mandamus to compel payment of contract price for work done on public building — defense that claim was subject to audit.

      Matter of Taverner v. Berry, 219 App. Div. 703, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1927, which affirmed an order of Special Term denying an application for a peremptory order of mandamus to compel the defendants to issue and deliver to the petitioner warrants for payment for work alleged to have been performed in the erection of a public building, in accordance with the contract price, pursuant to a supplemental contract entered into between the petitioner and the city of New York. Defendants contended that under the provisions of section 149 of the charter of the city of New York (L. 1901, ch. 466) the claim of the petitioner was subject to audit, the contract not having been made by public letting.

      Charles L. Craig for appellant.

      George P. Nicholson, Corporation Counsel (Henry J. Shields, John F. O’Brien, Denis R. O’Brien and Joseph Pascal of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ. Not sitting: O’Brien, J.


text:
    In the Matter of the Application of John T. Brady & Company, Appellant, against Charles W. Berry, as Comptroller of the City of New York, et al., Respondents.
    (Argued February 21, 1927;
    decided March 29, 1927.)

      New York city — municipal corporations — contract — mandamus to compel payment of contract price for work done on public building — defense that claim was subject to audit.

      Matter of Brady & Co. v. Berry, 219 App. Div. 703, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1927, which affirmed an order of Special Term denying an application for a peremptory order of mandamus to compel the defendants to issue and deliver to the petitioner warrants for payment for work alleged to have been performed in the erection of a public building, in accordance with the contract price, pursuant to a supplemental contract entered into between the petitioner and the city of New York. Defendants contended that under the provisions of section 149 of the charter of the city of New York (L. 1901, ch. 466) the claim of the petitioner was subject to audit, the contract not having been made by public letting.

      Charles L. Craig for appellant.

      George P. Nicholson, Corporation Counsel (Henry J. Shields, J. Joseph Lilly, Denis R. O’Brien and Joseph Pascal of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ. Not pitting: O’Brien, J.


text:
    William Barber, Appellant, v. A. Schrader’s Son, Incorporated, Respondent.
    (Argued February 28, 1927;
    decided March 29, 1927.)

      Accounting — royalties — action for accounting of royalties under license to manufacture, patented devices.

      Barber v. Schrader’s Son, Inc., 215 App. Div. 785, affirmed.
    Appeal from a judgment, entered October 18, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, modifying and affirming as modified an interlocutory judgment entered upon a decision of the court on trial at Special Term, in an action for an accounting of royalties claimed by plaintiff to be due under a written contract whereby defendant was licensed to manufacture certain devices embodying an invention covered by a patent issued to the plaintiff.

      Louis R. Bick and Samuel E. Darby for appellant.

      Frank M. Avery, Franklin G. Manley and Talbot M. Malcolm for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Mary C. Middendorf, as Administratrix of the Estate of Frank X. Middendorf, Deceased, Respondent, v. International Railway Company, Appellant.
    (Argued February 28, 1927;
    decided March 29, 1927.)

      Negligence — railroads — pedestrian hilled by street railway car while crossing street — contributory negligence.

      Middendorf v. International By. Co., 218 App. Div. 218, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 18, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, while crossing Fillmore avenue in the city of Buffalo from west to east, about forty feet south of its intersection with Northland avenue, but directly opposite a regular stopping place for north-bound cars, was struck by one of defendant’s cars proceeding north, and received injuries resulting in his death. Defendant contended that intestate was guilty of contributory negligence as matter of law.

      Noel S. Symons, John J. K. Caskie and Raymond C. Vaughan for appellant.

      Hamilton Ward and Dana L. Spring for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane and Lehman, JJ. Dissenting: Andrews, Kellogg and O’Brien, JJ.


text:
    Sydney Bevin et al., Respondents, v. Henry Steers Sand & Gravel Company, Inc., Defendant, and Henry Steers, Inc., Appellant. (Actions Nos. 1 and 2.)
    (Argued February 28, 1927;
    decided March 29, 1927.)

      Landlord and tenant — lease — real property — lease of land with privilege to remove sand and gravel at fixed rate per square yard but providing for minimum rental irrespective of amount removed — removal and payment for material in excess of amount of minimum rental for term — exhaustion of deposit and removal of lessee giving notice of cancellation —• action by landlord to recover minimum rent reserved.

      Bevin v. Steers Sand & Gravel Co., Inc., 218 App. Div. 502, affirmed.
    Appeal, in each of the above-entitled actions, from a judgment entered December 22, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant-appellant, entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment in favor of plaintiffs. The actions were to recover rent alleged to be due under a lease of lands for a term of years with the privilege to remove sand and gravel from the premises, the rental to be ten cents per cubic yard for all sand and gravel removed with a fixed minimum rental of $6,000 a year whether sand and gravel were removed or not. The lessee entered upon the premises, removed and paid for sand and gravel in an amount exceeding the minimum rental for the entire term, and, notifying plaintiffs that the sand and gravel were exhausted and it elected to cancel the lease, removed from the premises about three years and five months prior to its termination. The Appellate Division held that the lease was clear and unambiguous and by its terms the lessee was bound to pay the minimum rent for each year of the term whether- the sand and gravel were exhausted or not, and that the payments for material removed in excess of the minimum during the years of occupancy by the lessee could not be credited as payments of the minimum rent reserved for the subsequent years:

      Charles L. Woody for appellant.

      Sidney W. Davidson, Deber Smith and Leslie D. Dawson for respondents.
   Judgment, in each action, affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Gleasner Compressed Air Supply and Equipment Company, Inc., Respondent, v. Thompson-Starrett Company, Inc., et al., Appellants.
    (Argued March 1, 1927;
    decided March 29, 1927.)

      Appeal — unanimous affirmance — constitutional question not presented — appeal dismissed.

      Gleasner Compressed A. S. & E. Co., Inc., v. Thompson-Starrett Co., Inc., 217 App. Div. 785, appeal dismissed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 6,1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. Plaintiff-respondent argued that permission to appeal had not been obtained by appellants and that no constitutional question was raised by exception, motion or pleading in the court below.

      Frank G. Raichle for appellants.

      J. Edmund. Kelly and William S. Rann for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Leonard K. Rhinelander, Appellant, v. Alice J. Rhinelander, Respondent.
    (Argued March 1, 1927;
    decided March 29, 1927.)

      Husband and wife —■ marriage — action to annul marriage on ground of fraud.

      Rhinelander v. Rhinelander, 219 App. Div. 189, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 11, 1927, affirming a judgment in favor of defendant entered upon a verdict in an action to annul a marriage upon the ground of fraud in that defendant was a mulatto and did not inform plaintiff of that fact before marriage, but represented to him that she was not at all of colored blood.

      Isaac N. Mills and Leon R. Jacobs for appellant.

      Samuel F. Swinburne, Lee Parsons Davis and Richard E. Keogh for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Fanny Golding, as Administratrix of the Estate of Abraham Golding, Deceased, Respondent, v. New York Central Railroad Company, Appellant.
    (Argued March 1, 1927;
    decided March 29, 1927.)

      Negligence — railroads ■ — • consignee of freight while picking up material dropped while unloading car, which had been removed, struck by another car backed upon track.

      Golding v. New York Central R. R. Co., 218 App. Div. 840, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 10, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, while engaged in unloading a car of kindling wood consigned to himself and others at one of defendant’s freight yards, was informed by the conductor of a switch engine that he was going to “ pull the track.” Intestate came out of the car, which was not completely unloaded, and it and other cars were removed. When the track was clear, intestate proceeded to pick up wood that had fallen alongside the track during the process of unloading and while thus engaged was struck by one of a string of cars which were backed onto the track and received injuries resulting in his death.

      Jacob Aronson and Alexander S. Lyman for appellant.

      Sydney A. Syme for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Rita Redmond, an Infant, by John Redmond, Her Guardian ad Litem, Respondent, v. Borden’s Farm Products Co., Inc., Appellant.
    (Argued March 1, 1927;
    decided March 29, 1927.)

      Warranty — food — implied warranty as to wholesomeness — seller not liable, on theory of implied warranty, to child injured from broken glass in bottle of milk sold to mother.

      Redmond v. Borden’s Farm Products Co., Inc., 218 App. Div. 722, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 5, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that plaintiff, an infant, fourteen months old, was injured by broken glass contained in a bottle of milk, procured from defendant, which passed into her mouth while she was drinking the milk. It appeared that her mother procured and paid for the milk. The case was submitted to the jury on the theory of breach of an implied warranty

      John A. Kelly for appellant.

      David C. Broderick, Jacob P. Shulman and Walter L. Rathborne for respondent.
   Judgments reversed and new trial granted, costs to abide event, on authority of Chysky v. Drake Brothers Co. (235 N. Y. 468).

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Martin’s, Respondent, v. Martin’s Department Store, Inc., Appellant.
    (Argued March 1, 1927;
    decided March 29, 1927.)

      Trade names —■ injunction — action to enjoin use of trade name in connection with business.

      Martin's v. Martin’s Department Store, Inc., 218 App. Div. 784, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 29, 1926, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term. The action was brought by plaintiff, which maintained a store in the borough of Brooklyn, to enjoin and restrain defendant from using plaintiff’s trade name in connection with its store in the borough of Manhattan. The Appellate Division made new findings and directed judgment enjoining defendant “ permanently from in any manner using the name ‘ Martin’s ’ ór ' Martin’s Department Store, Inc.,’ or any similar name for or in conjunction with the operation of its store at the southeast corner of Fourteenth street and Sixth avenue, in the Borough of Manhattan, New York City or in conjunction with any other store owned, operated, controlled or maintained by it.”

      Ludwig M. Wilson for appellant.

      Benjamin Reass and Sylvia Usefof for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ. Not voting: Cardozo, Ch. J.


text:
    United States Trust Company of New York, as Substituted Trustee under the Will of Ella S. Hoffman, Deceased, Respondent, v. Olga Baes, Respondent, and Albert E. O. Ormsby, Appellant, Impleaded with Others.
    (Argued March 2, 1927;
    decided March 29, 1927.)

      Will — direction for distribution of principal of trust fund to “ issue ” of cestui que trust living at her death construed to require distribution per stirpes, not per capita.

      U. S. Trust Co. v. Baes, 216 App. Div. 807, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1926, unanimously affirming a judgment of Special Term construing the fourth clause of the will of Ella S. Hoffman, deceased. By the clause in question testatrix directed payment of the income from a trust fund to her daughter as long as she should live and upon her death the principal “ be paid to her issue, if any shall then be living.” The daughter survived testatrix and thereafter died leaving a daughter and grandson, the child of said daughter. The question was whether the granddaughter of testatrix took the entire fund or whether it should be divided between her and her son. The trial court held that a disposition per stirpes and not per capita was intended and, therefore, the granddaughter took the entire fund.

      Alfred L. Becker, Harter F. Wright and James J. Franc for appellant.

      George L. Shearer, William A. W. Stewart and John Henry Mottola for plaintiff, respondent.

      Albert Stickney and Sewell T. Tyng for defendant, respondent.
   Judgment affirmed, with costs to all parties appearing, and filing separate briefs herein payable out of the residuary estate; no opinion.

Concur: Crane, Andrews, Lehman, Kellogg and O’Brien, JJ. Dissenting: Cardozo, Ch. J., and Pound, J.


text:
    Elbert J. Decker, Plaintiff, v. The City of New York et al., Respondents, and The Town of Hempstead, Appellant.
    (Argued March 3, 1927;
    decided March 29, 1927.)

      New York city — municipal corporations — boundaries — action to set aside tax liens issued by city of New York on ground land was not in city — boundary between city of New York and town of Hempstead.

      Decker v. City of New York, 216 App. Div. 334, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 18, 1926, unanimously affirming a judgment in favor of defendants, respondents, entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to remove certain tax liens issued by the city of New York on plaintiff’s property at Far Rockaway on the southerly side of an inlet from Jamaica bay known as Mott Basin. Plaintiff contended the property was within the town of Hempstead and not taxable by the city. The question turned upon the boundary line of the former village of Far Rockaway. Plaintiff and the town of Hempstead claimed that straight lines, as shown on the map and as mentioned in the description, are controlling. The city of New York claimed that the words “ along Jamaica bay ” are controlling and that the boundary line of the village, where it touches the bay, is the bay, thus including the plaintiff’s land in the city.

      Charles S. Noyes and William J. Morris for appellant.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly and Charles Bradshaw of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ. Not sitting: O’Brien, J.


text:
    In the Matter of the Estate of Michael Sanita, Deceased. James J. Frawley, Public Administrator, as Administrator, Appellant; Maria La Guardia, Respondent.
    (Submitted March 3, 1927;
    decided March 29, 1927.)

      Decedent’s estate — discovery — gift — discovery proceedings brought by administrator — sufficiency of evidence to show gift causa, mortis.

      Matter of Sanita, 219 App. Div. 178, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1926, which reversed an order of the New York County Surrogate’s Court, made in a discovery proceeding, directing the respondent herein to turn over certain bank books in her possession to the administrator of Michael Sanita, deceased, adjudged that the same were her property and directed a dismissal of the proceeding. The Appellate Division held that the evidence was sufficient to show a gift causa mortis.

      N. Joseph Slicklen for appellant.

      John F. Collins and John A. Leddy for respondent.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews Lehman, Kellogg and O’Brien, JJ.


text:
    Edmond Van Dyk, Appellant, v. Van Dyk & Reeves, Inc., et al., Respondents, Impleaded with Another.
    (Argued February 23, 1927;
    decided March 29, 1927.)

      Corporations — trade names — jurisdiction — sale of assets of corporation by order of Federal court — action to restrain new corporation to which assets have been transferred by purchaser from, using old corporate name — complaint dismissed.

      Van Dyk v. Van Dyk & Reeves, Inc., 217 App. Div. 781, affirmed.
    Appeal from a judgment, entered July 1, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of Special Term denying a motion for a dismissal of the complaint and granted said motion. The action was brought by a stockholder of a New York corporation whose assets, corporate name and franchises had been sold in receivership proceedings under an order of a United States District Court, to restrain the use of the corporate name by a new corporation to which the assets had been assigned by the purchaser from the receiver. Defendants moved for dismissal of the complaint under rule 106 of the Rules of Civil Practice on the grounds that the complaint did not state facts sufficient to constitute a cause of action and that the court did not have jurisdiction of the subject of the action; and also under rule 107 on the grounds that the order of the Federal court, confirming the sale, constituted an existing final judgment or decree of a court of competent jurisdiction rendered on the merits determining the same cause or causes of action between the parties. The Appellate Division held that the Federal court had jurisdiction of the old corporation and its property and of plaintiff, and had power to restrain the old corporation and plaintiff from making any use of the corporate name that would interfere with the good will bought by the new corporation; that under the circumstances shown, no injury could come to the plaintiff through the use of the name by the new corporation and, consequently, plaintiff was not entitled to equitable relief; and that the question whether, so long as the old corporation remained undissolved, the new corporation could lawfully be permitted to incorporate under the same corporate name, was a matter with which the State, and not this plaintiff, was concerned.

      Elliott Smith, William G. Cooke and Howard O. Wood for appellant.

      Eugene W. Leake and Edward A. Craighill, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    The People of the State of New York ex rel. William H. McGrath et al., Appellants, v. George Weiss et al., Constituting the Town Board of the Town of Rockland, Respondents.
    (Argued February 23, 1927;
    decided March 29, 1927.)

      Towns — water districts — certiorari — determination of town board establishing a water district confirmed.

      People ex rel. McGrath v. Weiss, 216 App. Div. 505, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 17, 1926, which unanimously confirmed, on certiorari, a determination of the town board of the town of Rockland that the petition presented to it for the establishment of a water district in said town was in fact signed and acknowledged by a majority of the owners of taxable real property in the proposed water district therein described, as appeared by the last preceding completed assessment roll of the town of Rockland, and estabhshing a water district accordingly.

      C. H. Hitchcock for appellants.

      William G. Birmingham for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Not sitting: Kellogg, J.


text:
    Olga Petrova, Appellant, v. William H. Roberts, Respondent.
    (Submitted February 23, 1927;
    decided March 29, 1927.)

      Process — service — jurisdiction — non-resident alien, while attending court in this State as witness in action brought by him, may not be served with process in another action.

      Petrova v. Roberts, 216 App. Div. 814, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1926, which reversed an order of Special Term denying 'a motion by defendant to set aside service of the summons and complaint, and granted said motion. Defendant, a non-resident alien, was served with the summons and complaint herein while attending court as a witness in an action brought by him against the plaintiff herein.
    The following question was certified: “ Is a non-resident alien party, who himself begins litigation in this State in his own interest against a citizen of the State, amenable to the service of a summons and complaint in an action brought by the citizen, where the claim upon which the suit of the citizen is brought existed at the time the action was- instituted by the non-resident, but could not be availed of as a defense or counterclaim therein? ”

      Ralph A. Gilchrist and Charles T. Lark for appellant.

      Melville H. Cane for respondent.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Benjamin Stolz, as Trustee in Bankruptcy of Glens Falls Jobbing House, Inc., Appellant, v. William I. Ginsburg et al., Respondents.
    (Argued February 23, 1927;
    decided March 29, 1927.)

      Corporations — directors —• pleading — action by trustee in bankruptcy of bankrupt corporation to recover from directors the amount of unpaid notes accepted in payment for stock — sufficiency of complaint.

      Stolz v. Ginsburg, 217 App. Div. 701, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 11, 1926, which affirmed an order of Special Term granting a motion for a dismissal of the complaint. The action was brought by the trustee in bankruptcy against directors of the bankrupt corporatiojQ to recover the amount of certain unpaid notes accepted by them in payment for stock of the corporation.
    The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action against the defendants? ”

      A. Lee Olmsted for appellant.

      John H. Barker for respondents.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Not sitting: Kellogg, J.


text:
    Assets Realization Company, Respondent, v. Stephen T. Lockwood et al., as Executors of Philip W. Roth, Deceased, Appellants.
    (Argued February 23, 1927;
    decided March 29, 1927.)

      Practice —• reference — motion for compulsory reference properly granted.

      Assets Realization Company v. Lockwood, 217 App. Div. 784, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 29, 1926, which affirmed an order of Special Term granting a motion for a compulsory reference. The action was to recover on an alleged contract of indemnity guaranteeing the plaintiff’s predecessor from loss it might sustain by reason of advances in connection with the liquidation of another bank.
    The following question was certified: “ Will the trial of this action involve the examination of a long account without the necessity of deciding difficult questions of law, so as to make it referable as provided in section 466 of the Civil Practice Act? ”

      W. C. Carroll for appellants.

      Bdward B. Bosley and Carlos C. Alden for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    The People of the State of New York ex rel. Everett A. Hutchings, Appellant, v. Peter A. Mallon, Warden of the City Prison, et al., Defendants. The People of the State of New York, Respondent.
    (Argued February 24, 1927;
    decided March 29, 1927.)

      Crimes — extradition — habeas corpus — writ dismissed and relator remanded for delivery under rendition warrant of Governor.

      People ex rel. Hutchings v. Mallon, 218 App. Div. 461, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1926, which reversed an order of Special Term sustaining a writ of habeas corpus, dismissed said writ and remanded the relator to custody to be delivered to the agent of the State of California in pursuance of the rendition warrant of the Governor of this State.

      John Shalleck for appellant.

      Joab H. Banton, District Attorney (Michael J. Driscoll of counsel), for respondent.
   Order affirmed, without costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    The People of the State of New York, Respondent, v. Peter J. Candeau, Jr., Appellant.
    (Argued February 24, 1927;
    decided March 29, 1927.)

      Crimes — forgery in second degree — judgment of conviction affirmed.

      People v. Candeau, 215 App. Div. 671, affirmed.
    Appeal from a judgment- of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1925, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York, rendered upon a verdict convicting the -defendant of the crime of forgery in the second degree.

      Leo H. Klugherz and Leonard A. Snitkin for appellant.

      Joab H. Banton, District Attorney (Charles Henry of counsel) for respondent.
   Judgment affirmed; no opinion.

Concur: Cakdozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Marvyn Scudder, Appellant, v. J. Mitchell Hoyt et al., Respondents.
    (Argued February 24, 1927;
    decided March 29, 1927.)

      Commissions — loans — action to recover commissions for procuring loan — complaint dismissed under provision of section 380 of General Business Law limiting commissions to one~half of one per cent

      Scudder v. Hoyt, 218 App. Div. 11, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 10, 1926, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover on a written contract whereby defendants agreed to pay three and one-third per cent commission to plaintiff for his services in procuring a loan to a corporation in which they were interested. The complaint was dismissed on the ground that section 380 of the General Business Law, providing that no one shall receive more than one-half of one per cent for procuring loans, other than on real property, applied.

      Henry Woilman, Edward S. Seidman and Robert 0. Starr for appellant.

      Samuel H. Kaufman and Leo Oppenheimer for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Sarah Goss, Respondent, v. Philip Cohen, Appellant.
    (Argued February 24, 1927;
    decided March 29, 1927.)

      Vendar and purchaser — contract — specific performance — real property — dower —• action to compel specific performance of contract to convey real property — defense that wife of vendor refused to join in conveyance — specific performance decreed with abatement in purchase price in amount of value of dower.

      Goss v. Cohen, 216 App. Div. 821, affirmed.
    Appeal from a judgment, entered June 15, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff on new findings. The action was to compel specific performance of a contract to convey real property. The defense was that defendant’s wife refused to release her inchoate right of dower. Upon the trial plaintiff elected to take the premises subject to an abatement of the purchase price in the amount of the dower. The Appellate Division decreed specific performance with such abatement.

      Max Meyer for appellant.

      Peter F. McAllister and Frank A. Clary for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    Vera F. Strong, as Executrix of William H. Dailey, Deceased, Respondent, v. Lewis G. Dailey, as Surviving Partner of the Firm of W. H. Dailey & Son, Appellant.
    (Submitted February 25, 1927;
    decided March 29, 1927.)

      Partnership — accounting —• credit for value of sand and gravel removed from land, title to which had teen taken in name of surviving partner, improperly allowed him.

      Strong v. Dailey, 217 App. Div. 318, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 8, 1926, modifying and affirming as modified a judgment entered upon the report of a referee in an action for a copartnership accounting. Defendant and his father, plaintiff’s testator, had been partners in the sand and gravel business. During the term of the partnership certain lots were purchased, the father giving his check for part of the purchase price, the son taking title and giving back a mortgage for the balance unpaid. Thereafter sand and gravel were excavated from the lots and marketed by the partnership. On this accounting the son claimed a credit for the value of the sand and gravel removed. The Appellate Division held he was not entitled thereto.

      Rollin W. Meeker for appellant.

      C. H. Hitchcock for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Not sitting: Kellogg, J.


text:
    Leonora Bernardo, Respondent, v. Globe Indemnity Company, Appellant.
    (Argued February 25, 1927;
    decided March 29, 1927.)

      Insurance — indemnity — judgment recovered, against party insured for personal injuries — action by plaintiff against insurance company to •recover amount of insurance.

      Bernardo v. Globe Indemnity Co., 217 App. Div. 821, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 11, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The complaint alleged that the plaintiff recovered a judgment against one Di Paolo on account of bodily injuries sustained by her through the negligent operation of Di Paolo’s automobile; that an execution issued on the said judgment was delivered to the sheriff of the county of Monroe and that such execution was returned by the said sheriff unsatisfied; that the defendant had issued to Di Paolo its policy of insurance agreeing to indemnify him for damages as the result of his ownership of a certain automobile; that the policy provides that in case execution against the assured is returned unsatisfied in an action brought by an injured person, an action may be maintained by the injured person against the company under the terms of the policy for the amount of the judgment in the said action, not exceeding the amount of the policy. The answer alleged that the automobile, at the time and place of the accident, was being used for purposes other than those specified in the policy; that the plaintiff was an employee of Di Paolo, engaged in picking apples for the purpose of making eider at Di Paolo’s mill, and that the automobile and accident were, therefore, not covered by the policy in accordance with provisions thereof.

      F. A. W. Ireland and William C. Fiest for appellant.

      William L. Clay for respondent.
   Judgment affirmed, with costs; no opinion.

Concur-: Cardozo, Ch. J., Pound, Crane, ■ Andrews, Lehman, Kellogg and O’Brien, JJ.


text:
    J. Russell White, Appellant, v. Richmond Light and Railroad Company et al., Respondents.
    (Submitted February 25, 1927;
    decided March 29, 1927.)

      Contract — warranty — action to recover for breach of alleged warranty to furnish and install an electric oven that would refine camphor — insufficiency of evidence to establish warranty.

      White v. Richmond Light & R. R. Co., 217 App. Div. 90, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 29, 1926, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover for an alleged breach of warranty. The complaint alleged that plaintiff entered into a contract with' defendants whereby the latter agreed to construct and furnish to plaintiff parts for an electric oven which would refine camphor; that thereafter defendants delivered and installed the oven but that it failed to work properly and failed to refine camphor, by reason of which plaintiff was damaged. The complaint was dismissed on the grounds that plaintiff’s evidence failed to establish a warranty, express or implied; that the entire transaction was an experiment; that plaintiff was an expert on the subject of refining camphor and did not rely upon any statements or promises of defendants’ agents that the experiment would succeed. Furthermore, there was no sale of a completed apparatus which was or could be the subject of warranty.

      Henry S. Miller for appellant.

      Bertram G. Eadie and Daniel G. Brennan for Richmond Light and Railroad Company et al., respondents.

      John C. Rowe and Herbert H. Flagg for General Electric Company, respondent.

      Howard M. Park and Frederick W. Park for Young Brothers Company et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ. Not sitting: Andrews. J.


text:
    Jacob Reichert, Respondent, v. Edward A. McQuade et al., Defendants, and James A. McQuade, Appellant.
    (Submitted March 28, 1927;
    decided March 29, 1927.)

      Appeal — failure to file undertaking.

    Reported below, 218 App. Div. 739.
    Motion to dismiss an appeal from an order of the Appellate* Division of the Supreme Court in the second judicial department, entered October 15, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made on the ground of failure to file an undertaking as required by section 593 of the Civil Practice Act.

      Albert Conway for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unjess within ten days appellant serves and files a proper undertaking, in which case motion is denied, with ten dollars costs to the respondent.


text:
    Wolf Marks, Respondent, v. Nambil Realty Co., Inc., Appellant.
    (Submitted March 28, 1927;
    decided April 5, 1927.)

      Appeal — motion to dismiss appeal denied.

    Reported below, 218 App. Div. 763.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 8, 1926, affirming-a judgment in favor of plaintiff entered upon a verdict.
    The "motion was made upon the ground of failure to perfect the appeal as required by sections 592 and 593 of the Civil Practice Act.

      Charles Marks for motion.

      Joseph F. Hanley and Alfred W. Andrews opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Application of Maurice B. Gluck, Appellant, for a Writ of Habeas Corpus. Platon Rozdestvensky, Respondent.
    (Submitted March 28, 1927;
    decided April 5, 1927.)

      Appeal — failure to file undertaking — failure to obtain permission to appeal — motion to dismiss appeal granted.

      Matter of Gluck, 218 App. Div. 726, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1926, which unanimously affirmed an order of Special Term denying a motion for a writ of habeas corpus and remanding the relator to custody.
    The motion was made upon the ground of failure to file an undertaking as required by section 593 of the Civil Practice Act, and upon the further ground that permission to appeal had not been obtained.

      Chas. J. Katzenstein and Thomas H. Mahony for motion.

      Maurice B. Gluck opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Application of Adam Philippovsky, Appellant, for a Writ of Habeas Corpus. Platon Rozdestvensky, Respondent.
    (Submitted March 28, 1927;
    decided April 5, 1927.)

      Appeal • — • motion to dismiss appeal denied.

    Reported below, 218 App. Div. 726.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1926, which affirmed an order of Special Term denying a motion for a writ of habeas corpus and remanding the relator to custody.
    The motion was made upon the ground that this court had denied a motion for permission to appeal.

      Chas. J. Katzenstein and Thomas H. Mahony for motion.

      Maurice B. Gluck opposed.
   Motion denied, with ten dollars costs.


text:
    Victor Melnechuck et al., Plaintiffs, v. Timothy Chemkowitz et al., Constituting the Church Committee of the Russian Greek Orthodox National Church of the Holy Trinity, et al., Defendants. Adam Philippovsky, Individually and as Ruling Bishop of the Russian Orthodox Church, Appellant, v. Platon Rozdestvensky et ah, Respondents. Maurice B. Gluck, Appellant. (2 cases.)
    (Submitted March 28, 1927;
    decided April 5, 1927.)

      Appeal — failure to file an undertaking — motion to dismiss appeal granted.

      Melnechuck v. Chemkowitz, 218 App. Div. 727, appeals dismissed.
    Motion in each of the above-entitled cases to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1926, which affirmed an order of Special Term adjudging appellants herein in contempt of court.
    The motion was made upon the ground of failure to file an undertaking as required by section 593 of the Civil Practice Act.

      Chas. J. Katzenstein and Thomas H. Mahony for motion.

      Maurice B. Gluck opposed.
   Each motion granted and appeals dismissed, with costs and ten dollars costs of motion.


text:
    Marlen E. Pew, Appellant, v. International News Service, Inc., Respondent.
    (Submitted March 28, 1927;
    decided April 5, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 570.)


text:
    M. Morton Ansorge, Respondent, v. Corrine P. Kane, Appellant.
    (Submitted March 28, 1927;
    decided April 5, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 395.)


text:
    James Mahoney, Respondent, v. Munson Steamship Line, Respondent, and Theodore A. Crane’s Sons Company, Appellant.
    (Argued March 28, 1927;
    decided April 5, 1927.)

      Appeal — order bringing in appellant as party defendant — motion to dismiss appeal granted.

      Mahoney v. Munson S. S. Line, 219 App. Div. 745, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 9, 1927, which affirmed an order of Special Term granting a motion to bring in the appellant as a party defendant.
    The motion was made upon the ground that the order appealed from was not a final order and that permission to appeal had not been obtained.

      Corydon B. Dunham for motion.

      George W. McKenzie opposed.
   Motion granted and appeal dismissed, with costs arid ten dollars costs of motion.


text:
    Antonio D’Ambrosi, Respondent, v. Matteo Martorello, Appellant.
    (Argued March 28, 1927;
    decided April 5, 1927.)

      Appeal — unanimous affirmance — appeal to Court of Appeals without permission dismissed.

      D’Ambrosi v. Martorello, 219 App. Div. 720, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division oof the Supreme Court in the second judicial department, entered January 10, 1927, unanimously affirming a 'judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    The motion was made upon the ground that permission to appeal had not been obtained.

      Philip M. Bromberg and James M. Fawcett for motion.

      William L. Morris opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Harry W. Cowan, Appellant. Lawrence J. McGoldrick, Petitioner.
    (Submitted April 4, 1927;
    decided April 7, 1927.)

      Appeal — murder — assigned, counsel — forfeiture of right to compensation by neglect to seasonably apply for extension of time to bring case on for argument.

    In a ease of murder in the first degree, neglect by assigned counsel to apply for an extension of time to bring on the ease for argument, in the Court of Appeals, within the time fixed by section 536 of the Code of Criminal Procedure, forfeits his right to compensation.
    Application for allowance of compensation as counsel under sections 308, 308-a and 536 of the Code of Criminal Procedure.

      Lawrence J. McGoldrick for motion.
    No one opposed.
   Per Curiam.

Assigned counsel for defendant has lost his right to compensation by letting the time pass to bring case on for argument without applying to the court for an extension thereof. The court may, in a proper case and in the exercise of discretion, enlarge the time to bring the case on for argument after it has expired in order to prevent a dismissal, but in a case of murder in the first-degree, counsel’s delay in applying for such enlargement within the time fixed by section 536 forfeits his right to compensation. (People v. Chapman, 225 N. Y. 700.)

Application for compensation denied. Application for payment of personal and incidental expenses allowed.