text:
    The People of the State of New York, Respondent, v. Frank Markey, Appellant.

      Appeal — crimes — appeal without permission to Court of Appeals — motion to dismiss appeal granted.

      People v. Markey, 220 App. Div. 835, appeal dismissed.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24,1927, which affirmed a judgment óf the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of receiving stolen property.
    The motion was made upon the ground that permission to appeal had not been granted.

      Joab H. Banton, District Attorney (Felix C. Benvenga of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Harry Wallon, Appellant.

      Appeal — crimes — appeal without permission to Court of Appeals motion to dismiss appeal granted.

      People v. Wallon, 221 App. Div. 862, appeal dismissed.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1927, which dismissed an appeal from a judgment of the Court of General Sessions of the county of New York, rendered upon a verdict convicting the defendant of the crime of robbery in the first degree.
    The motion was made upon the ground that permission to appeal had not been granted.

      Joab H. Banton, District Attorney (Felix C. Benvenga of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


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    The People of the State of New York, Respondent, v. Frederick W. Kautzman, Appellant.

      Appeal — failure to serve record and points — motion to dismiss appeal granted.

      People v. Kautzman, 220 App. Div. 827, appeal dismissed.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of unlawfully taking fees as a public officer.
    The motion was made upon the ground of failure to serve the printed record and points on appeal.

      Joab H. Banton, District Attorney (Felix C. Benvenga of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


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    Nassau National Bank of Brooklyn, Respondent, v. John A. Paul et al., Appellants.

      Appeal — modification by Appellate Division by striking out additional allowance of costs — appeal without permission to Court of Appeals — motion to dismiss appeal denied.

    Reported below, 223 App. Div. 733.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 23,1928, modifying and affirming as modified a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury, by striking therefrom an extra allowance of costs.
    The motion was made upon the ground that no appeal could be taken as of right and permission to appeal had not been granted.

      Lloyd B. Kanter for motion.

      Samuel R. Wachtell opposed.
   Motion denied, with ten dollars costs.


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    Isaac Meyers, Respondent, v. The Anwal Realty Corporation, Appellant.

      Appeal — failure to file necessary undertaking — motion to dismiss appeal denied.

    Reported below, 218 App. Div. 762.
    (Submitted March 26, 1928;
    decided April 3, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 13,1927, affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the ground of failure to file the required undertaking.

      Albert Adams for motion.

      Herman M. Schaap opposed.
   Motion denied if appellant within ten days files a proper undertaking and pays ten dollars costs of motion. Otherwise granted, with costs and ten dollars costs of motion.


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    The People of the State of New York ex rel. Donner-Hanna Coke Corporation, Respondent, v. William J. Burke et al., as Assessors of the City of Buffalo, Appellants.

      Tax — constitutional law — assessment upon interest under contract with United States government to purchase structures and equipment void — constitutionality of subdivision 24 of section 4 of Tax Law.

      People ex rel. Donner-Hanna Coke Corp. v. Burke, 222 App. Div. 790, affirmed.
    (Argued March 26, 1928;
    decided April 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1927, which affirmed on certiorari an order of Special Term canceling an assessment leviéd under section 4 of the Tax Law, as amended by chapter 99 of the Laws of 1925, against the relator for purposes of taxation upon an alleged interest under a contract with the United States to purchase structures and fixed equipment erected and owned by the United States upon land of the relator in the city of Buffalo.
    The tax was declared void on the ground that it tended to retard, impede or burden the government in disposing of the plant, and chapter 99 of the Laws of 1926 was declared unconstitutional.

      Gregory U. Harmon, Corporation Counsel (Herbert A. Hickman of counsel), for appellants.

      John Lord O’Brian and Ralph Ulsh for respondent.
   Order affirmed, with costs; no opinion.

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


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    Joseph Chernik, Appellant, v. Clyde Steamship Company, Respondent.

      Constitutional law — negligence — workmen’s compensation — master and servant — constitutionality of Longshoremen’s and Harbor Workers’ Compensation Act.

      Chernik v. Clyde Steamship Co., Kings Co. Special Term, Dec. 2, 1927, affirmed.
    (Argued March 26, 1928;
    decided April 10, 1928.
    Appeal from a judgment, entered December 2, 1927, upon an order of a Special Term of the Supreme Court for the county of Kings granting a motion by defendant for a dismissal of the complaint. Plaintiff, a longshoreman in the employ of defendant, was injured while engaged in unloading a vessel and brought this action to recover therefor. Defendant moved to dismiss the complaint on the ground that the court had no jurisdiction of the subject-matter, by reason of a certain act of Congress commonly known as the Longshoremen’s and Harbor Workers’ Compensation Act, and that the defendant had complied with all the terms and conditions of said act, and, therefore, the plaintiff could not recover any moneys except the compensation provided thereunder. The plaintiff opposed the motion to dismiss, contending that the Longshoremen’s and Harbor Workers’ Compensation Act is unconstitutional, null and void.

      Joseph Banner for appellant.

      Ray Rood Allen for respondent.

      Harry S. Austin for International Longshoremen’s Association, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


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    Thyrza B. Flagg et al., Respondents, v. Robert Moses et al., Individually and as Commissioners of the Long Island State Park Commission, Appellants.

      Appeal — reversal by Appellate Division of judgment entered upon dismissal of complaint and grant of nexo trial — Appellate Division without poxoer to grant permission to appeal to Court of Appeals on certified questions.

      Flagg v. Moses, 222 App. Div. 762, affirmed.
    (Argued March 26, 1928;
    decided April 10, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 13, 1928, which denied for lack of power defendants’ motion for leave to appeal to the Court of Appeals from an order of said Appellate Division entered December 9, 1927, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The following question was certified: In the circumstances of this case has this court power to grant leave to the defendants to appeal from the order of this court entered in this court on December 9, 1927, reversing a judgment for defendants after a trial in the Suffolk County Supreme Court before Mr. Justice' Callaghan and a jury, entered on May 18, 1927, and to certify to the Court of Appeals that the following questions of law have arisen, which, in the judgment of the court, should be reviewed by the Court of Appeals: “ 1. Was the plaintiffs’ complaint properly dismissed at the end of plaintiffs’ case? 2. Should the question whether the Long Island State Park Commission had funds measurably adequate for the appropriation of the premises described in the complaint have been submitted to the jury? 3. Should the question whether the»Long Island State Park Commission acted in good faith in arriving at a valuation of the premises described in the complaint have been submitted to the jury? 4. Was the Appellate Division warranted in reversing the judgment dismissing the complaint in order to permit a recovery of nominal damages? ”

      Walter H. Pollak, G. Frank Dougherty and George D. Carrington for appellants.

      John A. Kelly and Walter S. Throop for respondents.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

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


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    In the Matter of the Claim of Muriel L. Leslie et al., Respondents, against The Long Island Railroad Company, Appellant. The State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — railroads — machinist injured while repairing engine in round house — not employed in interstate commerce so as to preclude relief under Workmen’s Comr pensation Law.

      Matter of Leslie v. Long Island B. B. Co., 222 App. Div. 702, affirmed.
    (Argued March 27, 1928;
    decided April 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 12, 1927, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. An employee of defendant, while engaged in his duties as a machinist making repairs to a locomotive in defendant’s round house at Morris Park, received injuries from which he subsequently died. The locomotive was regularly assigned to the run from Jamaica to Greenport in this State. Attached to the train was an express car which on the day of the accident carried shipments from outside this State. The defendant contended that decedent was employed in interstate commerce and, therefore, claimants’ remedy was exclusively under the Federal Employers’ Liability Act.

      William J. O’Brien and Joseph F. Keany for appellant.

      Albert Ottinger, Attorney-General (E. C. Aiken and William W. Dimmick of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Claim of Lillian S. Marino, Respondent, against Fred Bormann et al., Appellants. The State Industrial Board, Respondent.

      Workmen's compensation — master and servant ■ — ■ mechanic in garage seen to enter boiler room carring pail of oil and come out in flames — contention that he was not in regular course of employment and that injuries did not arise therefrom overruled.

      Matter of Marino v. Bormann, 222 App. Div. 783, affirmed.
    (Argued March 27, 1928;
    decided April 10, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 15, 1927, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband was employed as a mechanic in a garage. He was seen to enter the boiler room carrying a pail of oil. Shortly after he ran out with his clothes on fire and thereafter died as the result of burns received. There was evidence sufficient to justify a finding that there was an explosion. Defendants contended that decedent was not in the regular course of his employment and that the injuries resulting in his death did not arise out of his employment.

      Jeremiah F. Connor and William A. Earl for appellants.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Claim of Nellie S. Small, Respondent, against Gibbs Press, Inc., et al., Appellants. The State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — bookkeeper and superintendent of production who also held office of secretary of corporation killed in course of his employment —• defense to claim for compensation that he was an executive officer and had not elected coverage under Workmen’s Compensation Law — statute so requiring not applicable to claim governed by policy issued before statute went into effect.

      Matter of Small v. Gibbs Press, Inc., 222 App. Div. 699, affirmed.
    (Argued March 27, 1928;
    decided April 10, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 7, 1927, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband, while in the course of his employment, was struck by an automobile and died from the injuries received. He was employed by a corporation, engaged in the printing business, as bookkeeper and superintendent of production and received a fixed salary for his services. During the course of his employment he had been appointed secretary to the corporation, but he held no stock therein, had no authority to sign checks and had received no increase in his salary on such appointment. The defendants contended that claimant’s intestate was an executive officer, and that the claim for compensation is barred by reason of the failure of the decedent to make an election to be brought within the coverage of the Workmen’s Compensation Law, and also by reason of the fact that his wage value was not separately stated and added to the valuation of the payrolls upon which the premium was computed as required by subdivision 6 of section 54 of that statute, as amended by chapter 258 of the Laws of 1926.

      Jeremiah F. Connor for appellants.

      Charles B. Brophy and John G. Jackson for claimant, respondent.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs. Held, that this claim is governed by the terms of the policy as issued on March 1, 1926, and that the statute of 1926, chapter 258 (Workmen’s Compensation Law, § 54, subd. 6) is inapplicable thereto.

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


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    In the Matter of the Claim of Giovanni Palermo, Respondent, against Paolo Silvestro et al., Appellants. The State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — infection from splinter — recission by State Industrial Board of award for temporary disability and new award made for permanent partial disability — earning capacity.

      Matter of Palermo v. Silvestro, 222 App. Div. 842, affirmed.
    (Argued March 27, 1928;
    decided April 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 10, 1928, modifying and affirming as modified an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, a plasterer, in the course of his employment was injured by a splinter entering his left thumb. Infection set in and left him permanently disabled. Defendants contended that the State Industrial Board erred in rescinding previous awards for “ temporary partial disability ” and making further award for “ permanent partial disability,” and further erred in fixing the amount of claimant’s present earning capacity.

      Edward P. Lyon, Harold S. Lyon and Alfred W. Andrews for appellants.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Claim of Anna Daly, Appellant, v. United States Trucking Company, Respondent. The State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — claim dismissed for lack of evidence os to cause of accident or that it arose out of employment.

      Matter of Daly v. U. S. Trucking Co., 221 App. Div. 808, affirmed,
    (Argued March 27, 1928;
    decided April 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 1, 1927, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim. Claimant’s son died from injuries resulting from a fall from a horse-drawn truck which he was driving in the course of his employment. The Appellate Division dismissed the claim on the ground that there was no explanation of what caused decedent to fall from his truck nor any evidence that the accident arose out of the employment.

      Julius L. Rassner, Lloyd B. Kanter and Oscar A. Lewis for appellant.

      Paul Koch for respondent.
   Order affirmed, without costs; no opinion.

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


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    In the Matter of Proving the Will of Sarah A. Delmar, Deceased. Henry F. Barnes et al., Appellants; The National City Bank of New York et al., Respondents.

      Will — probate contested on grounds of testamentary incapacity and that paper propounded was not will of deceased.

      Matter of Delmar, 220 App. Div. 827, affirmed.
    (Argued March 27, 1928;
    decided April 10, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which unanimously affirmed a decree of the New York County Surrogate’s Court admitting to probate a proper propounded as the last will and testament of Sarah A. Delmar, deceased. Probate was contested on the ground of testamentary incapacity to make a will and upon the further ground that the paper propounded was not the will of the deceased. (See 243 N. Y. 7.)

      S. Wallace Dempsey and S. Michael Ress for appellants.

      Robert McLeod Jackson and H. Victor Crawford for National City Bank, respondent.

      James F. Donnelly for Fanny P. Evans et al., respondents.
   Order affirmed, with costs; no opinion.

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


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    Geneva Permanent Loan and Savings Association, Plaintiff, v. Peter H. Coyne et al., Respondents, and Cornelius T. Lynch, Appellant.

      Appeal — motion for permission to withdraw appeal granted.

      Geneva Permanent L. & S. Assn. v. Coyne, 222 App. Div. 718, appeal withdrawn.
    (Submitted April 2, 1928;
    decided April 10, 1928.)
    Motion for leave to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 18,1927, which affirmed an order of the Ontario County Court confirming the report of a referee in surplus money proceedings.
    The motion was made upon the ground that the appeal was improperly taken.

      Albert G. Kirby for motion.

      William S. Moore, opposed.
   Motion granted on payment of ten dollars costs within ten days; otherwise denied, with ten dollars costs.


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    Federal International Banking Company, Respondent, v. George A. Touche et al., Copartners under the Firm Name of Touche, Niven & Co., Defendants, and John B. Niven et al., Appellants. Equitable Trust Company of Baltimore, Respondent, v. George A. Touche et al., Copartners under the Firm Name of Touche, Niven & Co., Defendants, and John B. Niven et al., Appellants. Ultramares Corporation, Respondent, v. George A. Touche et al., Copartners under the Firm Name of Touche, Niven & Co., Defendants, and John B. Niven et al., Appellants.

      Limitation of actions — malpractice — two years’ Statute of Limitations in actions for malpractice ■ — • applicable only to misconduct of physicians, surgeons and others practicing-similar professions.

      Federal Int. Banking Co. v. Touche, 222 App. Div. 737, affirmed.

      Equitable Trust Co. v. Touche, 222 App. Div. 737, affirmed.

      Ultramares Corp. v. Touche, 222 App. Div. 737, affirmed.
    (Argued March 28, 1928;
    decided April 13, 1928.)
    Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1927, which affirmed an order of Special Term granting a motion to strike from the answer the affirmative defense of the two years’ Statute of Limitations. The actions were to recover for the alleged negligence of defendants, as public accountants, in auditing accounts and certifying to an inaccurate balance sheet, in reliance upon which plaintiffs advanced money to their damage.

      James Marshall, Louis Marshall and Abraham Shamos for appellants.

      Martin Conboy and Edwin N. Moore for Federal International Banking Company, respondent.

      H. H. Breland, Emory R. Buckner and Lowell Turrentine for Equitable Trust Company of Baltimore, respondent.

      Herbert R. Limburg and Lionel S. Popkin for Ultramares Corporation, respondent.
   In each action order affirmed, with costs; question certified answered in the negative. Held, that section 50, subdivision 1, of the Civil Practice Act, in so far as it prescribes a limitation in actions to recover damages for malpractice, refers to actions to recover damages for personal injuries resulting from the misconduct of physicians, surgeons and others practicing a profession similar to those enumerated.

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


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    Isaac A. Hopper’s Sons, Inc., Respondent, v. The Gerry Estates, Inc., et al., Appellants.

      Lien — contract — action to foreclose mechanic’s lien —■ contract to erect building for cost plus seven and one half per cent — difference as to agreed upset price.

      Hopper’s Sons, Inc., v. Gerry Estates, Inc., 222 App. Div. 4, affirmed.
    (Argued March 28, 1928;
    decided April 13, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1927, which reversed a judgment of Special Term entered upon the report of a referee in an action to foreclose a mechanic’s lien and directed judgment in favor of plaintiff upon new findings. The contract provided for the construction of a store and loft building according to certain plans and specifications for which the contracting defendant agreed to pay plaintiff the cost, plus seven and one-half per cent. It was asserted by plaintiff that there was an upset price agreed upon of $136,750. The contracting defendant asserted that the upset price was $106,750. It is about this difference in the amount of the upset price agreed upon that the controversy arose.

      I. Maurice Wormser and Abraham J. Halprin for appellants.

      John J. Cunneen and Joseph A. Byrne for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    A. Stanley Copeland, Appellant, v. Florence E. Knapp, Secretary of State, Respondent.

      Appeal — order of Special Term denying motion for order of mandamus to Secretary of State or Governor — aopeal direct to Court of Appeals dismissed.

      Copeland v. Knapp, Rensselaer Co. Special Term, Jan. 11, 1928, appeal dismissed.
    (Argued March 29, 1928;
    decided April 13, 1928.)
    Appeal, on alleged constitutional questions, from an order of a Special Term of the Supreme Court in and for the county of Rensselaer, entered in the office of the clerk of the county of Albany January 11, 1928, which denied for lack of jurisdiction a motion for an order of mandamus requiring the Secretary of State or the Governor to notify the Federal government that the act of the Legislature of this State ratifying the prohibition amendment to the Federal Constitution was invalid.

      A. Stanley Copeland, appellant, in person.

      Albert Ottinger, Attorney-Qeneral (C. F. Dawes and John T. Smith of counsel), for respondent.
   Appeal dismissed, with costs; no opinion.

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


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    The People of the State of New York, Appellant, v. Anthony A. Piscopo, Respondent.

      Appeal — crimes — reversal of judgment of conviction of murder in second degree and grant of new trial — appeal without permission to Court of Appeals dismissed.

      People v. Piscopo, 222 App. Div. 70, appeal dismissed.
    (Argued March 29, 1928;
    decided April 13, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department entered December 16, 1927, which reversed a judgment of the Richmond County Court rendered upon a verdict convicting the defendant of the crime of murder in the second degree and granted a new trial.

      Albert C. Fach, District Attorney (Lester L. Callan of counsel), for appellant.

      Alfred V. Norton for respondent.
   Appeal dismissed; no opinion.

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


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    Minnie V. Pitts, Appellant, v. William H. Pitts, Respondent, Impleaded with Others.

      Trust — real property — action to establish trust in real property — insufficiency of evidence to sustain finding.

      Pitts v. Pitts, 220 App. Div. 774, affirmed.
    (Argued March 29, 1928;
    decided April 13, 1928.)
    Appeal from a judgment, entered June 24, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was brought to secure an adjudication that the defendant-respondent holds certain real property, legal title to which is in his name, as trustee for the benefit of the plaintiff and the defendants, and that each of the parties hereto is entitled to an undivided one-fifth interest therein, and for the further purpose of requiring the defendant-respondent to account for all rents received and collected by him from this property since the date upon which title to the property vested in him. The Appellate Division held that the finding of the trial court that the property in question was transferred to defendant-respondent in trust was not supported by the evidence.

      Walter H. Pickett for appellant.

      Chester T. Krouse and James Nelson MacLean for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Empire City Savings Bank, Respondent, v. Alice McGrew, Appellant, Impleaded with Others.

      Appeal — order of Appellate Division affirming order of Special Term denying motion to stay proceedings, vacate a judgment of foreclosure and permit service of answer — appeal without permission to Court of Appeals dismissed.

      Empire City Savings Bank v. McQrew, 221 App. Div. 843, appeal dismissed.
    (Submitted March 29, 1928;
    decided April 13, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 14, 1927, which affirmed an order of Special Term denying defendant-appellant’s motion to stay the above-entitled action, to stay the delivery of a deed by the referee in this actign to the prospective purchaser, to vacate the judgment of foreclosure, upon the ground that all moneys due under the mortgage foreclosed have been paid, and to permit the defendant-appellant to interpose an answer.

      Abraham L. Lazarus and Louis J. Elias for appellant.

      Edward D. Bryde and Charles W. Dayton for respondent.
    Appeal dismissed, with costs; no opinion.
   Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


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    Mary Ruck, as Executrix of George Ruck, Deceased, Respondent, v. Lindley M. Garrison, as Receiver of the Coney Island and Brooklyn Railroad Company, Defendant, and The Coney Island and Brooklyn Railroad Company, Appellant.

      Negligence — railroads — passenger thrown from platform of street railway car to street.

      Buck v. Garrison, 222 App. Div. 694, affirmed.
    (Argued March 29, 1928;
    decided April 13, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 25, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s testator alleged to have been occasioned through the negligence of defendants. The complaint alleged that testator boarded one of defendant’s cars at Fourth avenue and Ninth street in the borough of Brooklyn and that the defendant, its agents or employees, “ so negligently conducted themselves in the charge, care, management and control of said car as to cause the plaintiff’s testator to be violently precipitated from the car to the street ” and to cause him to receive injuries from which he died.

      Harold L. Warner and George D. Yeomans for appellant.

      E. V. Conwell and Joseph A. McLaughlin for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Augustus S. Houghton et al., Appellants and Respondents, v. Hector W. Thomas et al., Respondents, and Harry W. Mack, Appellant, Impleaded with Another.

      Partnership — accounting — fraud — action to set aside partnership accounting on ground, of fraud.

      Houghton v. Thomas, 220 App. Div. 415, affirmed.
    (Argued March. 30, 1928;
    decided April 13, 1928.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 18, 1927, unanimously affirming a judgment in favor of defendants-respondents, entered upon a dismissal of the complaint by the court on trial at Special Term and reversing a judgment in favor of defendant-appellant directed by the trial court on his counterclaim. The action was in equity to set aside an accounting made at the termination of a law partnership on the ground of fraud. It was alleged that during the partnership defendant Thomas rendered professional services for various clients and concealed that fact from his partners and during said period and since has collected large sums for his services for which he has never accounted.

      John E. Joyce and George A. Ferris for plaintiffs, appellants and respondents.

      George A. Spiegelberg for defendant-appellant.

      I. Maurice Wormser, Philip J. Dunn and Sumner B. Stiles for Hector W. Thomas, respondent.
   Judgment affirmed, with costs to the defendants-respondents against the plaintiffs; no opinion.

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


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    Alice M. Mulvihill, Respondent, v. Commercial Casualty Insurance Company, Appellant.

      Insurance (accident) — policy insuring against bodily injury arising through external, violent and accidental means independently of disease — death from gangrene and pneumonia arising from accidental injury — erroneous dismissal of complaint in action on policy.

      Mulvihill v. Commercial Casualty Ins. Co., 221 App. Div. 494, affirmed.
    (Argued March 30, 1928;
    decided April 13, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 2, 1927, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The action was to recover upon a policy of accident insurance which insured defendant’s husband “ against bodily injuries, effected solely through external, violent and accidental means, independently and exclusively of disease, whether disease pre-existed or be afterwards contracted.” The insured fell down the cellar stairs at his home on April 6, 1926, and injured his back resulting in pain and discoloration over the region between the hips. Subsequently the tissue broke down and open sores developed followed by gangrene. He died May 12, 1926, the death certificate stating the cause of death to be “ fall to cellar, broncho pneumonia, or possible septic pressure, injury to back.” Defendant contended that death was not effected solely through external means and independently of disease and, therefore, plaintiff could not recover. The Appellate Division held that if the injury was the efficient cause of the death plaintiff could recover under the policy, even though some disease caused directly and solely by the injury, such as pneumonia or gangrene, might have intervened.

      Frank Gibbons for appellant.

      Richard P. Byrne for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    George H. Best, as Administrator of the Estate of Henry N. Best, Deceased, Respondent, v. North American Accident Insurance Company, Appellant.

      Insurance (accident) — switch tender killed while turning switch on tracks of street railway in middle of street — insurer not liable where policy contained provision excluding injuries sustained while working on public highway or railroad right of way.

      Best v. North American Accident Ins. Co., 221 App. Div. 829, reversed.
    (Argued March 30, 1928;
    decided April 13, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 28, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court upon an agreed statement of facts. The action was to recover upon a policy of accident insurance. The insured was employed by a street railway company as a switch tender, it being also his duty to keep the switch clear of snow and ice. While standing in the middle of the street, between the double tracks of the railway company engaged in turning or cleaning a switch he was struck by an automobile and killed. The policy contained a provision “ excluding injuries sustained while on a railroad right of way except on established crossing or sustained while working on a public highway or railroad right of way,” and defendant contended that by reason thereof it was not liable on the policy.

      J. Stanley Carter for appellant.

      Henry J. Crawford for respondent.
   Judgment of the Appellate Division and that of Trial Term reversed and complaint dismissed, with costs in all courts, upon the ground that the insured was injured while engaged in work not covered by the provisions of the policy.

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


text:
    Catherine C. Mitchill, Respondent, v. Charles Lath et al., Appellants.
    (Submitted April 9, 1928;
    decided April 13, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 377.)


text:
    Anna Kirkegaard et al., Respondents, v. Forman Realty Corporation, Appellant, Impleaded with Others.

      Appeal — order of Appellate Division modifying judgment of Special Term — entry of final judgment thereon — appeal to Court of Appeals from order of modification unauthorized.

      Kirkegaard v. Forman Realty Co., 222 App. Div. 817, appeal dismissed.
    (Submitted April 9, 1928;
    decided April 13, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 23, 1928, modifying and affirming as modified a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.
    The motion was made upon the ground that a final judgment had been entered in the action and no appeal taken therefrom and that the appeal taken from the order of the Appellate Division was unauthorized.

      James M. Fawcett for motion.

      Abraham H. Spigelgass opposed.
   Motion granted and appeal dismissed, with ten dollars costs of motion.


text:
    The People of the State of New York ex rel. Glenn W. Woodin, as District Attorney of Chautauqua County, Appellant, v. Lee L. Ottaway, Individually and as County Judge of Chautauqua County, et al., Respondents, Impleaded with Others.
    (Submitted April 9, 1928;
    decided April 13, 1928.)
   Motion for reargument denied. (See 247 N. Y. 493.)


author: Per Curiam.

text:
    40th Street and Park Avenue, Inc., Appellant, v. Austin G. Fox, Respondent, Impleaded with Others.

      Real property — covenants — restriction on kind and height of building to be erected on land — action to remove cloud on title.

      40th St. & Park Ave., Inc., v. Fox, 222 App. Div. 667, affirmed.
    (Argued April 4, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial depart-merit, entered December 13, 1927, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was brought to remove a cloud upon title in the nature of a covenant contained in conveyances made in 1867, 1868 and 1869 forbidding the erection on the land conveyed of “ any building or erection other than brick or stone dwelling houses of at least two stories in height, with the usual yard appurtenances to dwelling houses, except churches and private stables of brick or stone.”

      Charles L. Craig for appellant.

      George Zabriskie and Charles M. Kritzman for respondent.
   Per Curiam.

Future changes in the character of the neighborhood as now maintained by law and usage may make it inequitable hereafter to enforce the covenant in suit. We deal only with conditions as they existed at the trial. The question whether the Princeton Club has disabled itself, by a breach of the covenant, from enforcing the restriction is not raised by an appropriate exception and is not before us on this appeal.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O'Brien, JJ., concur.

Judgment affirmed.


text:
    Alice Lumsden, as Administratrix of the Estate of George Lumsden, Deceased, Respondent, v. Dwight P. Robinson and Company, Inc., Appellant.

      Negligence — master and servant — workmen’s compensation — employee of subcontractor killed through negligence of general contractor— liability of general contractor not limited to compensation under Workmen’s Compensation Law.

      Lumsden v. Robinson & Co., Inc., 222 App. Div. 713, affirmed.
    (Argued March 28, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 2,1927, which affirmed an order of Special Term granting a motion by plaintiff to strike from the answer the second separate defense. The action was to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence . of the defendant. The intestate when killed was employed by a subcontractor in placing foundation piles for the erection of a building. Defendant was the general contractor. The question presented by the defense stricken out was whether the liability of the general contractor was limited to payment of compensation under the Workmen’s Compensation Law.
    The following question was certified: “ Did the defense stricken out present a defense in law? ”

      F. A. W. Ireland and Chester McNeil for appellant.

      Hamilton Ward for respondent.
   Order affirmed, with costs, on authority of Clark v. Monarch Engineering Co. (248 N. Y. 107); question certified answered in the negative.

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


text:
    The People of the State of New York, Respondent, v. Morris Bogin, Benjamin Goldberg, Sol Taub, Alex. Boreh, Louis Broad, Lena Gantman, Rebecca Gercht, Lena Stanashefsky, Alex Seaman, Sam Nelson, Julius Ginsberg, Sam Klempner, Louis Nelson, Menia Rosman, Anna Shapiro and Bertha Copeland, Appellants. The People of the State of New York, Respondent, v. Jessie Silver, Fannie Sopolsky, Anna Wingar, Jennie Levine, Fanny Fubenberg, Fanny Shor, Jacob Levinson, Pauline Gutterman, Cecelia Richman, Dora Azusky, Tillie Glantz, Minnie Schiferin, Ida Rosen, Bessie Pearl and Sarah Mackler, Appellants. The People of the State of New York, Respondent, v. Becky Lande, Yetta Salzman, Esther Steinberg, Anna Bendilovich, Fanny Kivintner, Sophie Stutzin, Fanny Steinberg, Vera Krieger, Clara Gabin, Ruth Gluskin, Rosie Green, Rachel Lavine, Jennie Drunkin, Esther Sivitz, Beckie Arowsky, Elenor Urban, Marian Gross, Abe Koneak, Isidore Mark, Morris Sternberg, Issie Greenspan, Herman Richman, William Friedman, Harry Gittleman, Benjamin Forsythe and Hyman Gunsman, Appellants. The People of the State of New York, Respondent, v. Harry Jacobs, Morris Beskin, Isidor Solmowitz, Paul Strumasser, Israel Brown, Jos. Greenberg, Sam Schaffer, Paul Spolnik, Max Palson, Phillip Keller, Louis Grabelsky, Sol Kaininsky, Philip Denenberg, Harry Gordon, Jos. Brifus, Isidor Kirmeier, Abe Helfenbaum, Morris Rothman, Philip Herman, Morris Smith, Sam Bean, Harry Cohen, John Sigorick, Herbert Feldman, Bernard Olenberg, Isidor Brown, Mike Knezew, Sarah Terutzky, Ethel Shaw, Sarah Dubow, Malvina Bavman, Bertha Herman, Pearl Halpern, Sarah Bramnick, Annie Boses, Celia Samarodin, Appellants.

      Crimes — disorderly conduct —judgments of conviction affirmed.

      People v. Bogin (sub nom. People v. Friedman), 130 Mise. Rep. 525, affirmed. - .. ^ _ • -
    (Argued April 9, 1928;
    decided May 1, 1928.)
    Appeals, by permission, from a judgment of the Court of Special Sessions of the city of New York, entered September 27, 1927, which affirmed judgments of the Magistrate’s Court of the city of New York convicting the defendants of disorderly conduct. (See People v. Nixon, 248 N. Y. 182.)

      Aiken A. Pope and Jacob M. Mandelbaum for appellants.

      Joab H. Banton, District Attorney (Felix C. Benvenga and John C. McDermott of counsel), for respondent.
   Judgment in each case affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Irving Friedman, Chas. Solon, Emma Nichols, Beckie Lichman, Meyer Weinstein, Morris Malkin, Max Beckman, Gus Nichols, Minnie Shanin, Louis Yanowitz, Lenon Berger, John Carras, Appellants.

      Crimes — disorderly conduct •— judgments of conviction reversed.

    (Argued April 9, 1928;
    decided May 1, 1928.)
    Appeals, by permission, from a judgment of the Court of Special Sessions of the city of New York, entered September 27, 1927, which affirmed judgments of the Magistrate’s Courts of the city of New York convicting defendants of disorderly conduct. (See People v. Nixon, 248 N. Y. 182.)

      Aiken A. Pope and Jacob M. Mandelbaum for appellant.

      Joab H. Banton, District Attorney (Felix C. Benvenga and John C. McDermott of counsel), for respondent.
   Judgment of Court of Special Sessions and that of the City Magistrate’s Court reversed and defendants discharged on opinion in People v. Nixon (248 N. Y. 182).

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


text:
    The People of the State of New York, Respondent, v. Ludwig H. Lee, Appellant.

      Crimes — murder in first degree — judgment of conviction affirmed.

    (Argued April 2, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Kings County Court rendered November 14, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Gardiner Conroy, Edward J. Reilly and Reginald S. Hardy for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Nathan Schulman et al., as Executors of Isaac Schulman, Deceased, et al., Appellants, v. Manberg Realty Corporation et al., Defendants, and Peiresa Realty Corporation et al., Respondents.

      Mortgage — foreclosure — mistake — action to foreclose second mortgage elected to be due for non-payment of installments of principal and interest due under first mortgage ■— defense that failure to pay was through inadvertence and mistake.

      Schulman v. Manberg Realty Corp., 222 App. Div. 687, affirmed.
    (Argued April 2, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 19, 1927, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to foreclose a second mortgage on the ground that the mortgagor had failed to pay an installment of principal and interest due on the first mortgage which plaintiffs had been compelled to pay and that plaintiffs had elected to declare the second mortgage indebtedness due, under an acceleration clause of that mortgage providing that upon default of payment of principal or interest due under the prior mortgage for ten days, plaintiffs might elect to declare the whole indebtedness payable. The trial court found that failure to pay the installments due on the first mortgage did not arise from willful omission or neglect but was owing to inadvertence, misunderstanding and mistake and that payment of the amounts thereof, with costs and disbursements of the foreclosure action, had been duly tendered.

      Samuel J. Levinson for appellant.

      Carl Brecher 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. New York Stock Exchange Building Company, Appellant, v. Jacob A. Cantor et al., Constituting the Board of Taxes and Assessments of the City of New York, Respondents.

      Tax — certiorari — review of assessment for taxation of real property.

      People ex rel. New York Stock Exch. Bldg. Co. v. Cantor, 221 App. Div. 193, affirmed.
    (Argued April 3, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 18, 1927, which dismissed a writ of certiorari and reversed an order of Special Term reducing an assessment on real property of the relator in the borough of Manhattan for purposes of taxation for the year 1921. Relator contended that the assessment should be set aside for overvaluation and inequality.

      John W. Davis, Roland L. Redmond, Samuel P. Gilman and William F. Unger for appellant.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Hamilton F. Kean et al., Copartners under the Firm Name of Kean, Taylor & Co., Appellants, v. Maryland Casualty Company, Respondent.

      Insurance (indemnity) — action to recover for loss arising from acceptance of uncertified check which was afterwards dishonored on ground that transaction constituted larceny.

      Kean v. Maryland Casualty Co., 221 App. Div. 184, affirmed.
    (Argued April 3, 1928;
    decided May 1, 1928.)

    Appeal from a judgment, entered July 25, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiffs entered upon a verdict and directing a dismissal of the complaint. The action was to recover upon a banker’s and broker’s blanket bond insuring plaintiffs, amongst other things, from loss through theft. Plaintiffs, who had been doing business for some time with a firm of brokers in Philadelphia, delivered to them United States Treasury certificates to the amount of $450,000 and accepted their uncertified check in payment thereof. The check was dishonored, the firm proved to be insolvent and went into bankruptcy. Claim is made for the resulting loss on the ground that the transaction constituted larceny. The defense was that no larceny was actually committed; that even though larceny were committed, the loss fell beyond the scope of the covering clauses of the bond and was specifically excluded by its restrictive provisions.

      Frank C. Laughlin, Joseph W. Kirkpatrick and Robert M. McCormick for appellants.

      Henry de Forest Baldwin, Thaddeus G. Cowell, James S. Hemingway, John H. Vincent and Edward J. Dowling for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Atlantic Mills of Rhode Island, Respondent, v. The New York Central Railroad Company, Appellant.

      Real property — easements — railroads — injunction — action to restrain use of railroad right of way — purpose of grant — abandonment by nonuser.

      Atlantic Mills of R. I. v. N. Y. C. R. R. Co., 221 App. Div. 386, affirmed.
    (Submitted April 4, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered July 13, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury and directing judgment in favor of plaintiff. The action was to restrain the defendant from using a railroad right of way over property of the plaintiff and for damages from such use. In 1869 plaintiff’s predecessor in title conveyed certain dock property in the city of Hudson to the Delaware and Hudson Canal Company and also a right of way over other lands for rail tracks to connect the dock with the Hudson and Boston and Hudson River railroads. By subsequent conveyances the dock property and right of way came into possession of the Knickerbocker Portland Cement Company which in 1910 constructed a track on the right of way, not from the dock property, but from the line of the New York Central Railroad Company to what was formerly the Hudson and Boston railroad but is now the Boston and Albany and part of the New York Central system. Subsequently the cement company leased this track to the New York Central which uses it as a connecting line between its Hudson River and Boston and Albany divisions. The Appellate Division held that the right of way was granted solely for the purpose of connecting the dock property with the railroad and not for general railroad purposes and that in any event the easement was lost by nonuser for more than forty years.

      William V. Saxe for appellant.

      John V. Whitbeck, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary A. Reilly, Respondent, v. American Meat and Supply Company, Inc., Appellant.

      Negligence — stores — action to recover for injuries from fall in store caused by stepping on crushed fruit hidden by sawdust.

      Reilly v. Amer. Meat & Supply Co., Inc., 222 App. Div. 739, affirmed.
    (Argued April 4, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 20,1927, 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. Plaintiff, while walking along an aisle in defendant’s store, slipped on what was described as “ mashed fruit ” hidden by sawdust and fell receiving the injuries complained of.

      Robert H. Charlton and John T. Loughran for appellant.

      Harold R. Medina, Joseph Levy, Edward Gluck and Joseph A. McLaughlin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank Silver, Respondent, v. Park-Lex Holding Corporation et al., Appellants, Impleaded with Others.

      Real property — trust — foreclosure •*- action to foredose trust deed of real property given to secure bonds.

      Silver v. Park-Lex Holding Corp., 222 App. Div. 40, affirmed.
    (Argued April 4, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1928, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and granting a new trial. The action was to foreclose a trust deed of certain real property given by the owner to secure payment of certain bonds issued by it, it being alleged that there had been a default in payment of principal and interest.

      Joseph A. Seidman, Milton Zuckerman and Walter S. Seidman for appellants.

      Henry C. Burnstine and George E. Netter for respondent.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

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


text:
    Andrew McAnsh, Respondent, v. Julius Blauner, Appellant.

      Bills, notes and checks — vendor and purchaser — false representations — action to recover on note given as part of purchase price of real property — defense of false representations.

      McAnsh v. Blauner, 222 App. Div. 381, affirmed.
    (Argued April 5, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered January, 21, 1928, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by plaintiff for summary judgment and granted said motion. The action was to recover upon a promissory note executed and delivered as part payment for real property. The answer set up as a separate defense that defendant was induced to purchase the property by false and fraudulent representations.

      Harold R. Medina, William F. McNulty and I. Gainsburg for appellant.

      William J. Cullen and William H. Griffin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert Dickie, Respondent, v. William Kobransky et al., Copartners under the Firm Name of Kobransky Brothers, Appellants.

      Negligence — motor vehicles — damage to automobile from collision with motor truck.

      Dickie v. Kobransky, 222 App. Div. 752, affirmed.
    (Argued April 5, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 8, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for damage to plaintiff’s automobile arising from a collision with a motor truck belonging to defendants alleged to have been occasioned by the negligence of defendants’ servant. Plaintiff was driving his car south on Seventh avenue in the city of New York. There was evidence that a few feet north of Morton street defendants’ truck proceeding north on the west side of the street struck plaintiff’s car.

      Daniel Mungall for appellants.

      George J. McDonnell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Sidford & Greene, Inc., Appellant, v. Wehmeyer Coal Company, Respondent.

      Sale — contract — action to recover for goods alleged to have been sold and delivered — complaint dismissed for failure to show delivery.

      Sidford & Greene, Inc., v. Wehmeyer Coal Co., 221 App. Div. 778. affirmed.
    (Argued April 5, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 21, 1927, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover for goods alleged to have been sold and -delivered. Plaintiff’s proof showed that defendant ordered from plaintiff 350 tons of coke to be delivered at New York city and that plaintiff immediately transmitted the order to a Pittsburg company to be filled. After the coke had been shipped but before delivery defendant canceled the order and refused to accept delivery.

      Martin A. Schenck, Charles C. Lockwood and Murray C. Bernays for appellant.

      Lewis Nadel and William C. Relyea for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gerfish Realty Company, Inc., Appellant, v. James J. Dowd, Respondent.

      Vendor and purchaser — contract — validity of contract of corporation when signed simply with the name of its president and his seal.

      Gerfish Realty Co., Inc., v. Dowd, 222 App. Div. 690, reversed.
    (Argued April 5, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 2, 1927, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to compel specific performance of a contract to convey real property. The contract opened as follows:

      “ Agreement, made and dated May 8, 1926, between James J. Down, of 396 Van Burén Street, hereinafter described as the seller, and Gereish Realty Co., of 6923 Third Ave., Brooklyn, N. Y., hereinafter described as the purchaser,” and ended:

      “ Witness the signatures and seals of the above parties.
    “ In the Presence of:
    “ James J. Dowd,
    “ Wm. J. McAllister (l. s.)
    “ Max Fishelman,
    “ (l. s.) ”
    It was admitted that Max Fishelman was president of the plaintiff corporation, but the trial court held that the contract had not been signed by the plaintiff or by any officer thereof in its name.

      Herman A. Gray and Charles Gottlieb for appellant.

      Arthur J. Stern for respondent.
   Judgment of Appellate Division and that of Special Term reversed and judgment directed in favor of plaintiff for the relief demanded in the complaint, with costs in all courts, on the ground that the contract in suit as appears upon the face thereof was made by the plaintiff corporation and not by its president individually.

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


text:
    Jennie L. Canfield, Appellant, v. Elmer E. Harris & Co., Respondent.

      Landlord, and tenant — action for rent — whether tenant holds over by leaving property on premises after expiration of lease.

      Canfield v. Harris & Co., 222 App. Div. 326, affirmed.
    (Argued April 5, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1927, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial. The action was for rent and was brought on the theory that defendant became liable by holding over after expiration of its lease. The Appellate Division held that whether defendant became hable to pay rent for another year by leaving property on the premises presented a question of fact which should have been submitted to the jury.

      H. B. Butterfield for appellant.

      Henry Adsit Bull for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in ah courts; no opinion.

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


text:
    The New York Central Railroad Company, Respondent, v. The Western Union Telegraph Company, Appellant.

      Contract — contribution — railroads — telegraph company — action on written agreement to compel contribution to wages of workmen employed in maintenance of telegraph lines along railroad right of way.

      N. Y. C. R. R. Co. v. W. Ü. Tel. Co., 222 App. Div. 739, affirmed.
    (Argued April 6, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was on contract to recover contribution by defendant, in the proportion provided for in a written agreement, for wages paid by plaintiff to workmen employed in maintenance of telegraph lines along the railroad right of way. The answer raised the issue whether plaintiff could increase the wages of such workmen without the defendant’s consent and compel contribution to the increased amounts expended in the same percentage.

      Chester B. McLaughlin and Francis R. Stark for appellant.

      Jacob Aronson, Leo Manville, Robert J Cary and Alexander S. Lyman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Adriaansen, Appellant, v. Board of Education of Union Free School District No. 1 of the Town of Marion, Respondent.

      Schools — tax — assessment — consolidation of school districts — liability of taxpayer in one of annexed districts to assessment for payment of indebtedness voted in district to which his was annexed before consolidation.

      Adriaansen v. Board of Education, 222 App. Div. 320, affirmed.
    (Argued April 6, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered January 7, 1928, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. By order of a District Superintendent of Schools seven school districts in Wayne county were consolidated with Union Free School District No. 1 of the Town of Marion. Prior to that time the electors of the Marion School District had authorized the issuance of bonds to pay for a school. Plaintiff, a taxpayer in one of the annexed districts, brought this action to test the question of his liability to assessment for payment of such bonded indebtedness.

      George S. Van Schaick and Howard M. Woods for appellant.

      Harry D. Williams and Lawrence G. Williams for Wood & Brooks Company, amicus curiæ.

      Clyde W. Knapp for respondent.

      Albert Ottinger, Attorney-General, amicus curiæ.

      Ernest E. Cole for Commissioner of Education, amicus curiæ.

      Simon Fleischman, Frank C. Moore and Martin Clark for Union Free School District No. 1, Town of Tonawanda, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


text:
    Dorothea E. Becker, Appellant, v. John A. Muehlig, Individually and as Executor of Louis Muehlig, Deceased, et al., Defendants, and Caroline A. R. Harsch et al., Respondents.

      Vendor and. purchaser — practice — partition—judicial sale — referee must conform to directions of judgment — motion to compel bidder to complete purchase denied.

      Becker v. Muehlig, 221 App. Div. 512, affirmed.
    (Submitted April 6, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 17, 1928, which reversed an order of Special Term directing defendant Harsch to complete her purchase of premises bid in by her at a sale in partition and denied a motion to compel her so to do. By the interlocutory decree in partition the premises were directed to be sold “ free from the lien of all debts.” The property was offered for sale by the referee “ subject to all unpaid paving taxes.” The successful bidder refused to complete on the ground that she supposed she was buying the property free from all liens as directed by the judgment. The Appellate Division held that it was the duty of the referee to conform to the directions of the judgment.

      John G. Lesswing for appellant.

      Gottfried H. Wende 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 Claim of Loversa Windrums, Respondent, against Munson Steamship Lines, Appellant. State Industrial Board, Respondent.

      Constitutional law ■— jurisdiction — workmen’s compensation — master and servant — authority of State Industrial Board to award compensation for death of steamship clerk from drovming in course of employment.

      Matter of Windrums v. Munson S. S. Lines, 222 App. Div. 707, affirmed.
    (Submitted April 6, 1928;
    decded May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 7, 1927, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband was employed by defendant as a steamship clerk and checker. His work consisted of checking cargo discharged from steamers. He worked both on the vessel and on the dock. The Industrial Board found that while in the course of his employment he fell from the pier and was drowned. This appeal by the employer is taken under section 588 of the Civil Practice Act, subdivision 1, on the ground that the award violates section 2 of article 3 and section 8 of article 1 of the Federal Constitution, in that the case presented is exclusively within the admiralty and maritime jurisdiction.

      Cletus Keating, Vernon Sims Jones and Raymond Parmer for appellant.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    401 East 72nd Street Realty Co., Inc., Appellant, v. Ebling Realty Company, Respondent.

      Vendor and purchaser — contract — title — action to recover down payment on ground seller did not tender marketable title.

      401 East 71tnd St. Realty Co., Inc., v. Ebling Realty Co., 222 App. Div. 388, affirmed.
    (Submitted April 6, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered January 24, 1928, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying defendant’s motion for a dismissal of the complaint and granted said motion. The action was to recover the down payment made upon a contract to purchase real estate from the defendant on the ground that the defendant did not tender a marketable title. The only defect was that the cellar steps and areas encroached upon the street in front of the premises. The contract provision was as follows: “ Said premises shall be conveyed subject to the terms of tenants now in occupation of said premises, all of whom are monthly or statutory tenants, excepting those holding leases named below, and subject to encroachments of stoop, areas and cellar steps or appurtenances thereto on street and subject also to any state of facts an accurate survey of said premises may disclose that does not render the title unmarketable.”

      Charles A. Winter for appellant.

      Abraham Grometstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York; Respondent, v. Joseph J. Bernstein, Appellant.

      Crimes — grand larceny in first degree —judgment of conviction affirmed.

      People v. Bernstein, 223 App. Div. 786, affirmed.
    (Argued April 9, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 21, 1928, which affirmed a judgment rendered at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of grand larceny in the first degree.

      Robert H. Elder and Otho S. Bowling for appellant.

      Charles J. Dodd, District Attorney (James I. Cuff of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Moe H. Horowitz, Appellant, v. Bridget E. Gallivan, Respondent.

      Vendor and purchaser — contract — specific performance — tender — ■ action to compel specific performance of contract to sell real property — failure to lender payment at place named in contract.

      Horowitz v. Gallivan, 222 App. Div. 690, affirmed.
    (Argued April 10, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 1, 1927, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The action was to compel specific performance of a contract to sell real property. The trial court found that the contract was made in the State of Connecticut and required payment of the purchase money at defendant’s residence in that State and that plaintiff had never made or tendered such payment.

      Max Leff and I. J. Ginsberg for appellant.

      M. E. Kelley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Samuel Horowitz et al., Copartners under the Firm Name of Sterling Cotton Mills, Respondents, against Benjamin Kaplan et al., Copartners under the Firm Name of Kay Ar Eff Cloak Company, Appellants.

      Arbitration — award set aside for misconduct of arbitrator in examining merchandise in dispute in absence of his associate arbitrator.

      Matter of Horowitz v. Kaplan, 221 App. Div. 567, reversed.'
    (Submitted April 10, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 4, 1927, which reversed an order of Special Term granting a motion to vacate, annul and set aside an award of arbitrators, denied said motion and directed reinstatement of the award. The controversy was between buyer and seller of merchandise, it being contended by the purchaser that the goods did not conform to sample. During the course of the arbitration that followed the arbitrators examined the merchandise but being unable to arrive at a unanimous decision, it was agreed between them that one arbitrator should return the next day and again examine the merchandise. This he did and reported his opinion to the other arbitrators. It was contended that this independent examination constituted misconduct for which the award should be set aside.

      Jonah J. Goldstein and Thomas G. Frost for appellants.

      Moses Jaffe for respondents.
   Order of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the authority of Flannery v. Sahagian (134 N. Y. 85) and Hinkle v. Zimmerman (184 N. Y. 114).

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


text:
    Samuel H. Marsh, Appellant, v. Eva R. Marsh, an Incompetent Person, by Abraham L. Doris, Her Committee, Respondent.

      Vendor and purchaser — contract — specific performance ■ — • Frauds (Statute of) — action to compel specific performance of alleged oral agreement by wife to convey real property to husband, she having received purchase price.

      Marsh v. Marsh, 222 App. Div. 825, affirmed.
    (Argued April 10, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered February 6, 1928, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action, husband against wife, was to compel specific performance of oral agreements alleged to have been made by the wife, prior to her incompetency, to convey certain real estate to her husband, she having received the purchase price. The Appellate Division held that the consideration proved was too indefinite to sustain the alleged agreements and the acts relied upon as part performance insufficient to take them out of the Statute of Frauds.

      Irwin Isaacs and Joseph Force Crater for appellant.

      Thomas J. Cuff, Abraham L. Doris and Milton Pinkus for respondent.
   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, Respondent, v. John Giammarinaro, Appellant.

      Crimes — receiving stolen goods — evidence — judgment of conviction reversed for error in admission of evidence as to other stolen goods.

      People v. Giammarinaro, 222 App. Div. 818, reversed.
    (Argued April 10, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appel-' late Division of the Supreme Court in the second judicial department, entered January 13, 1928, which affirmed a judgment of the Nassau County Court rendered upon a verdict convicting the defendant of criminally receiving stolen property.

      Thomas J. Cuff and Milton Pinkus for appellant.

      Elvin N. Edwards, District Attorney (Richard H. Brown of counsel), for respondent.
   Judgment of Appellate Division and that of County Court reversed and new trial ordered for error in the admission of evidence as to other stolen cars.

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


text:
    The People of the State of New York ex rel. Rita Scotti, Respondent, v. The Superintendent of the New York State Reformatory for Women at Bedford Hills, Appellant. The People of the State of New York ex rel. Anna Smith, Respondent, v. The Superintendent of the New York State Reformatory at Bedford Hills, Appellant.

      Habeas corpus — magistrates — jurisdiction of magistrates in unincorporated village to sentence to reformatory upon conviction of vagrancy under subdivision 4 of section 887 of Code of Criminal Procedure.

      People ex rel. Scotti v. Supt. N. Y. State Reformatory, etc., 222 App. Div. 680, reversed.

      People ex rel. Smith v. Supt. N. Y. State Reformatory, etc., 222 App. Div. 681, reversed. ,
    (Argued April 10, 1928;
    decided May 1, 1928.)
    Appeal, in each of the above-entitled proceedings, .by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 4, 1927, which unanimously affirmed an order of Special Term sustaining a writ of habeas corpus and discharging relator from custody on the ground that the warrant of commitment was void. The relators were charged with vagrancy under subdivision 4 of section 887 of the Code of Criminal Procedure. They were tried and convicted before a magistrate in an unincorporated village. The question was as to his power to sentence relators to a reformatory, it being contended that only a city magistrate had that power in such cases.

      Albert Ottinger, Attorney-General (Henry C. Henderson of counsel), for appellant.

      Alton W. Teale for respondents.
   In each case order of Appellate Division and that of Special Term reversed and petition for writ of habeas corpus dismissed, upon the ground that the magistrate had jurisdiction to issue the commitment under section 226 of the State Charities Law.

Concur: Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ.; Crane, J., dissents and votes for dismissal of appeal upon the ground that the relators have not been found guilty.


text:
    The Fidelity and Columbia Trust Company, as Trustee of Nathan F. Block et al., Respondent, v. Gustav S. Levin et al., Appellants.

      Landlord and tenant — lease — option — waiver — action for declaratory judgment defining right of parties under lease and sublease — failure to exercise option to renew — alleged waiver of compliance with provisions of lease.

      Fidelity & Columbia Trust Co. v. Levin, 221 App. Div. 786, affirmed.
    (Argued April 10, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 11,1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to obtain a declaratory judgment defining the rights of the parties under a lease from plaintiff to defendant Levin and a sublease from Levin to defendant Israel. The question was as to whether plaintiff had waived compliance by defendant Levin with a provision in the lease in' reference to the exercise of an option to renew and whether it was in any way estopped from enforcing the contract.

      Simon Fleischmann, Martin Clark and William R. Pooley for Gustav S. Levin, appellant.

      Isadore Bookstein, Daniel J. Dugan and Avrom M. Jacobs for David Israel, appellant.

      E. C. Schlenker for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Louis H. Radin, Appellant, v. Nathan Reizen et al., Respondents.

      Vendor and purchaser — contract.— real property — action to recover down payment on ground part of property had been taken in condemnation proceedings.

      Radin v. Reizen, 222 App. Div. 774, affirmed.
    (Argued April 11, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 3, 1928, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was to recover the down payment on a contract to purchase real property, on the ground that part of the property agreed to be conveyed had been taken by the city of New York in condemnation proceedings and, therefore, defendants could not give title thereto. The contract provided that “ Any sum awarded to be paid by the City of New York on account of the condemnation of any portion of the said premises shall be paid in reduction of the said first mortgage at the time the said award is paid. In such event the holder of this second mortgage shall execute such release that the City of New York may require to enable such award to be paid to the first mortgagee. Such provisions to be contained in the said purchase money mortgage.”

      Otto C. Sommerich and Maxwell C. Katz for appellant.

      Henry Greenberg 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, Respondent, v. Wilmont L. Wagner, Appellant.

      Crimes — murder in first degree — judgment of conviction affirmed.

    (Argued April 11, 1928;
    decided May 1, 1928.)
    Appeal from a judgment of the Supreme Court, rendered November 28, 1927, at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of murder in the first degree.

      Thomas F. Rogers for appellant.

      Walter N. Renwich, District Attorney, for respondent.
   Judgment of conviction affirmed.

Pound, Crane and Andrews, JJ., vote to affirm upon the ground that the error in the charge as to the burden of proof upon the issue of self-defense may be disregarded under section 542 of the Code of Criminal Procedure, and O’Brien, J., upon the ground there is no evidence in the record presenting an issue as to self-defense; Cardozo, Ch. J., Lehman and Kellogg, JJ., dissent upon the ground that such error may not be disregarded.


text:
    United States Fidelity and Guaranty Company, Appellant, v. South Brooklyn Railway Company, Respondent, Impleaded with Another.

      Appeal —order of Appellate Division affirming order granting motion for dismissal of complaint — appeal from such order to Court of Appeals dismissed.

      United States F. & C. Co. v. South Brooklyn By. Co., 222 App. Div. 688, appeal dismissed.
    (Argued April 11, 1928;
    decided May 1, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 11, 1927, which affirmed an order of Special Term granting a motion by defendant-respondent for a dismissal of the complaint.

      Theodore J. Miller and William J. McArthur for appellant.

      Harold L. Warner and George D. Yeomans for respondent.
   Appeal dismissed, with costs, on the ground it is taken from the order of the Appellate Division and not from the judgment entered thereon, without prejudice, however, to an appeal from such judgment if the time to appeal therefrom has not expired; no opinion.

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


text:
    James B. Gage, Appellant, v. Irving Bank and Trust Company, Respondent.

      Trust — revocation —■ deed of trust for benefit of grantor during his life and directing payment of principal to his issue on his death — right to revoke when such right was not reserved and there were issue living at time of making grant.

      Cage v. Irving Bank & Trust Co., 222 App. Div. 92, affirmed.
    (Argued April 11, 1928;
    decided May 1, 1928.)
    Appeal from a judgment, entered December 10, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. Plaintiff, under an agreement with defendant, transferred to it a sum of money in trust “ to pay to or apply the net income therefrom to the use of the grantor during his life, and upon his death to pay, transfer and set over the principal of said fund to the issue of the grantor in equal shares per stirpes and in default of such issue to the next of kin of the grantor, as determined by the laws of the State of New York.” The grantor at the time of making the trust deed had three infant children and he reserved no right to revoke the trust. Thereafter plaintiff served a notice of revocation and brought this action to recover the principal fund and for an accounting as to income.

      David Joyce for appellant.

      Sydney G. Soons and Martin A. Schenck for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Petition of Emma S. Starbuck, as Executrix of Charles A. Starbuck, Deceased, Respondent. Arthur W. Graef et al., Respondents; Empire Trust Company et al., Appellants.

      Surrogate’s Court — practice — power of surrogate to modify prior decree fixing allowance to attorneys for estate.

      Matter of Starbuck, 221 App. Div. 702, affirmed.
    (Argued April 12, 1928;
    decided May 1, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 18, 1927, which reversed a decree of the Westchester County Surrogate’s Court purporting to modify a prior decree making an allowance to attorneys for the estate of Charles A. Starbuck, deceased. The Appellate Division held that the surrogate was without power to modify his prior decree and to reduce the allowance therein made to counsel.

      Melber B. Chambers, Henry L. Wheeler, Jr., and Stuart McNamara for appellants.

      Wallace T. Stock and Arthur W. Graef for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Bertha Rose et al., Appellants, v. The Great Atlantic and Pacific Tea Company et al., Respondents.

      Negligence — nuisance — injury to customer of store from slipping on ice m front of store ■— complaint dismissed in action to recover on theories of nuisance and negligence.

      Rose v. Great Atlantic <£ Pacific Tea Co., 222 App. Div. 655, affirmed.
    (Argued April 12, 1928;
    decided May 8, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 6, 1927, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries and for loss of services and expense alleged to have been sustained by plaintiffs through the negligence 'of and maintenance of a nuisance by defendants. Plaintiff, while leaving the store of defendant tea company, slipped on ice which had accumulated in front of the door and fell, receiving injury.

      Frank I. Finkler for appellants.

      Charles H. O’Connor and Michael J. O’Neill for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Daisy S. Borst, as Executrix of Henry V. Borst, Deceased, Respondent. Harry V. Borst et al., Appellants.

      Executors and administrators — accounting — decedent’s estate — title to stock and dividends claimed by executrix under written assignment

      Matter of Borst, 222 App. Div. 707, affirmed.
    (Argued April 12, 1928;
    decided May 8, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 23, 1927, which unanimously affirmed a decree of the Montgomery County Surrogate’s Court overruling objections to and settling the intermediate account of the executrix of Henry V. Borst, deceased. The contestants contended that the executrix should be surcharged the value of certain stock and dividends thereon received since the death of testator. The executrix claimed title thereto by virtue of a written assignment.

      Harry V. Borst for appellants.

      John T. Norton, Charles S. Nisbet and Daisy S. Borst for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Maurice B. Gluck, Appellant. The Association of the Bar of the City of New York, Respondent.

      Appeal — order appointing referee to take testimony of alleged professional misconduct of attorney — appeal to Court of Appeals dismissed.

      Matter of Gluck, 223 App. Div. 747, appeal dismissed.
    (Argued April 30, 1928;
    decided May 8, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 2, 1928, appointing a referee to take testimony as to alleged professional misconduct of an attorney.
    The motion was made upon the grounds that the order was not appealable as of right and that permission to appeal had not been obtained.

      Einar Chrystie for motion.

      Maurice B. Gluck opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. David Gordon, Appellant. The People of the State of New York, Respondent, v. Daily Worker Publishing Co., Inc., Appellant.
    (Submitted April 30, 1928;
    decided May 8, 1928.)
   Motion for reargument denied. (See 247 N. Y. 593.)


text:
    Anna M. Hicks, Respondent, v. Charles De La Vergne, Appellant.

      Appeal — unanimous affirmance — motion to dismiss appeal granted.

      Hides v. De La Vergne, 222 App. Div. 762, appeal dismissed.
    (Argued April 30, 1928;
    decided May 8, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 19, 1927, which unanimously reversed an order of the court at a Trial Term setting aside a verdict jn favor of plaintiff and granting a new trial and reinstated the verdict.
    The motion was made upon the ground that no appeal as of right could be taken to the Court of Appeals and that permission to appeal had not been granted.

      Joseph A. McCabe for motion.

      Owen B. Augspurger opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of J. Arthur Keesey, as Executor of David M. Drury, Deceased, Appellant. Trustees of the Masonic Hall and Asylum Fund et al., Appellants; Mary Russell et al., Respondents.

      Appeal — failure to file undertaking — motion to dismiss appeal denied.

    Reported below, 222 App. Div. 577.
    (Submitted April 30, 1928;
    decided May 8, 1928.)
    Three motions to dismiss appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 28, 1928, which affirmed a decree of the Kings County Surrogate’s Court declaring invalid a clause of the will of David M. Drury, deceased.
    The motions were made upon the grounds of failure to file the required undertaking and upon the further ground that the executor was not the party aggrieved.

      Gustave B. Garfield for motions.

      Frederick N. Van Zandt, S. Howard Cohen and John A. Dutton opposed.
   Motions to dismiss appeals taken by executor and by trustees of Masonic Hall and Asylum Fund denied. Motion to dismiss appeal taken by the infant appellants denied on condition that a proper undertaking be given within ten days; otherwise motion granted, with costs and ten dollars costs of motion.


text:
    Peter J. Poels et al., Copartners under the Firm Name of Poels & Brewster, Appellants, v. Charles E. Merrill et al., Copartners under the Firm Name of Merrill, Lynch & Co., Respondents.
    (Submitted April 30, 1928;
    decided May 8, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 647.)


text:
    John M. Brennan, Appellant, v. National Equitable Investment Co., Inc., Respondent.
    (Submitted April 30, 1928;
    decided May 8, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 486.)


text:
    Samuel B. Schweitzer, Respondent, v. Max Mindlin, Appellant.

      Pleading — negligence — motor vehicles — complaint alleging negligence in driving plaintiff past an arsenal where explosives were stored as a result of which he was injured by an explosion therein does not state cause of action.

      Schweitzer v. Mindlin, 222 App. Div. 738, reversed.
    (Argued April 30, 1928;
    decided May 11, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 23, 1927, which affirmed an order of Special Term denying a motion for a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that while plaintiff was riding as a passenger in defendant’s automobile, the car was negligently driven past an arsenal where explosives were stored and plaintiff was injured by an explosion which occurred in said arsenal.
    The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ”

      Lyman A. Spalding, Arthur McCausland and William J. Nolan for appellant.

      George Eilperin and Habeeb Abokair for respondent.
   Order of Appellate Division and that of Special Term reversed and defendant’s motion for judgment granted, with costs in all courts. Question certified answered in the negative. Held, that the complaint does not state facts sufficient to constitute a cause of action in that it fails to state any facts from which an inference of negligence is possible.

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


text:
    In the Matter of Proving the Will of Helen L. Beattie, Deceased. Nellie B. McFadden et al., Appellants; Irving Bank-Columbia Trust Company, as Executor, et al., Respondents.

      Appeal — order of Appellate Division affirming decree of Surrogate’s Court denying motion to vacate prior decree — appeal to Court of Appeals dismissed.

      Matter of Beattie, 222 App. Div. 729, appeal dismissed.
    (Argued April 30, 1928;
    decided May 11, 1928.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1927, which affirmed a decree of the New York County Surrogate’s Court denying a motion to vacate and set aside a prior decree admitting to probate the will of Helen L. Beattie, deceased.

      Wayne Ely, James W. Osborne and Kenneth D. Shrewsbury for appellants.

      Sydney G. Soons and Martin A. Schenck for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    Royal Indemnity Company, Appellant, v. Franklin-Kellum Company, Incorporated, et al., Defendants. Empire Trust Company, as Trustee, Respondent; Charles H. Hyde, as Receiver, Appellant.

      Mortgage — foreclosure — appeal — action to foreclose second mortgage — power of court to authorize issuance of receiver's certificates and make them a lien prior to first mortgage — appeal to Court of Appeals from order allowing issuance of certificates may be taken without bringing in party to whom they were sold.

      Royal Indemnity Co. v. Franklin- Kellum Co., Inc., 223 App. Div. 772, affirmed.
    (Argued April 30, 1928;
    decided May 11, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 5, 1928, which modified and affirmed as modified an order of Special Term authorizing the issuance of receiver’s certificates.
    The following questions were certified:
    “1. In a case where a foreclosure action is commenced by a second mortgagee holding a mortgage of $150,000 on an apartment house in the suburbs, appraised at $650,000, and a receiver of rents is appointed on the application of such second mortgagee; and later, the first mortgagee, although a defendant in such foreclosure action brought by the second mortgagee, institutes a separate foreclosure action on its mortgage of $400,000, claiming as actual defaults thereunder non-payment of taxes and insurance premiums, and by motion applies for and obtains an extension of such receivership to its own foreclosure action and mortgage, and thereby secures application of part of the income collected by the receiver to its own mortgage, and the receiver so appointed moves for leave to borrow money on receiver’s certificates sufficient to enable him (1) to repay to the first mortgagee insurance premiums that had been advanced by the first mortgagee, amounting to $1,088; (2) to pay $7,650 to the sinking fund under the first mortgage, which would be in default unless immediately paid; (3) to pay interest of $11,775, which was about to become due on the first mortgage; and to make such certificates a lien on the property prior to the first mortgage, when it appears that at the time of the hearing of the application for leave to issue receiver’s certificates the first mortgagee had been served with the summons and complaint as a party defendant in the foreclosure of the second mortgage, has the court the power to issue receiver’s certificates for such purposes, and has it power to make such certificates a lien prior to that of the first mortgage?
    “ 2. The certificates having been issued and sold to a bona fide purchaser before any appeal was taken to this court, could the appeal be entertained without bringing in such purchaser as a party to the appeal, the point having been duly raised? ”

      Selden Bacon, Abel E. Blackmar and Saul S. Myers for appellants.

      Leonard B. Smith, Thomas E. Dewey and Stuart McNamara for respondent.
   Order affirmed, with costs; first question certified answered “ no; ” second question answered “yes;” no opinion.

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