source: Caselaw Access Project

license: Public Domain

text:
    Blue Ridge Coal Corporation et al., Appellants, v. Genevieve M. Lewis, Defendant, and Royal Indemnity Company, Respondent.
    (Argued May 5, 1925;
    decided May 15, 1925.)

      Attachment — action to establish ownership of property attached and to recover value thereof — motion for summary judgment properly denied.

      Blue Ridge Coal Corporation v. Lewis, 210 App. Div. 275, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1924, which reversed an order of Special Term granting a motion for summary judgment and denied said motion. The complaint demanded that the defendant Genevieve M. Lewis establish that she was the owner of property at the time of its seizure under a warrant of attachment, and that in case of her failure so to do plaintiff recover from the defendants Genevieve M. Lewis and Royal Indemnity Company, jointly and severally, the value of the aforesaid property so claimed by the defendant Genevieve M. Lewis, with interest from the date of the undertaking. The Appellate Division held that a defense that the sheriff without any authority required a bond, although he failed to secure a bond from the attaching creditor as required by the Civil Practice Act; and that the claimant was entitled to her property under the circumstances without filing a bond, was good if sustained by proof. The following question was certified:
    “ Was plaintiff's motion properly denied as matter of law? ”

      Jonah J. Goldstein and Aiken A. Pope for appellants.

      Barnett Cohen and Frank J. O’ Neill for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    In the Matter of the Claim of Benjamin Lorchitsky, Respondent, against Gotham Folding Box Company et al., Appellants. The State Industrial Commission, Respondent.
    (Submitted May 11, 1925;
    decided May 15, 1925.)
   Motion to amend remittitur denied, without costs. (See 230 N. Y. 8.)___


author: Per Curiam.

text:
    Isabelle M. Niles, Respondent, v. Frederick Seeler, Appellant.
    (Argued May 11, 1925;
    decided June 2, 1925.)

      Practice — summary judgment — when answer and affidavit clearly ;present issue motion for summary judgment should he denied.

    Where defendant’s answer and affidavits upon a motion for summary judgment clearly present the issue whether there was any consideration for a note involved in the action, the issue should be tried in the ordinary manner and not disposed of by a summary judgment.

      Niles v. Seeler, 209 App. Div. 867, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1924, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term, striking out defendant’s answer and granting a motion for summary judgment.

      Milton R. Weinberger and William Klein for appellant.

      Joseph Walker Magrauth and Arthur F. Driscoll for respondent.
   Per Curiam.

The defendant’s answer and his affidavits produced upon the motion for summary judgment clearly present the issue whether there was any consideration for the note involved in this action.

Of course this was a substantial issue which defendant was entitled to have tried in the ordinary manner and which should not have been disposed of by a summary judgment. (Gravenhorst v. Zimmerman, 236 N. Y. 22, 38, 39; General Investment Co. v. Interborough Rap. Trans. Co., 235 N. Y. 133.)

The judgments should be reversed, with costs in all courts, and the motion for summary judgment denied, with. costs.

Hiscock, Ch. J., Cardozo, McLaughlin, Crane Andrews and Lehman, JJ., concur; Pound, J., absent.

Judgments reversed, etc.


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    In the Matter of the Application of Esther H. Salzberg, Respondent, for Payment of an Award Made in the Matter of Acquiring Title to Cooper Avenue and Central Avenue in the Borough of Queens, City of New York. The Comptroller of the City of New York et al., Appellants; Title Guarantee and Trust Company, Respondent.
    (Submitted May 4, 1925;
    decided June 2, 1925.)

      Tax — street opening proceeding — payment of award — title of claimant derived through tax sale — unpaid taxes for years prior to those for which property was sold not a lien on property.“

      Matter of Salzberg, 212 App. Div. 44, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 5, 1924, which unanimously affirmed an order of Special Term directing the comptroller of the city of New York to pay to the petitioner an award made in street opening proceedings. The question was whether unpaid taxes for the years 1891 to 1897, both-inclusive, were valid and enforcible liens on the property in question, notwithstanding the transfer and the foreclosure of a tax lien for unpaid taxes on the same property for the years 1899 to 1910, both inclusive, through which claimant derived her title.

      George P. Nicholson, Corporation Counsel (Joel J. Squier, Joseph G. Matthews and Charles E. Clarke of counsel), for appellants.

      Hyman Rubin, Arthur P. Hilton and Clarence C. Ferris for respondent.
   Order affirmed, with costs, on opinion of Young, J., below.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Anthony Niesen, Appellant, v. Charles Galewski, Respondent.
    (Argued May 5, 1925;
    decided June 2, 1925.)

      Commissions — action by broker against prospective customer to recover commissions he would have received from owner had sale been consummated.

      Niesen v. Galewski, 211 App. Div. 858, affirmed.
    Appeal from a judgment, entered December 19, 1924, 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 verdict and directing a dismissal of the complaint. The action was brought by a broker against a prospective purchaser of real estate to "recover commissions which the broker would have received from the owner had the customer purchased the premises and executed a formal contract of purchase and acquired title in accordance therewith.

      Francis X. Carmody, Joseph H. Kutner and Kenneth C. Newman for appellant.

      Jacob Landy and Joseph E. Greenberg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. . Absent: Pound, J.


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    United States Trust Company of Paterson, New Jersey, Respondent, v. Jacob Mendelson et al., Appellants.
    (Argued May 6, 1925;
    decided June 2, 1925.)

      Contract — factors — assignment of amount due under factoring contract — lien of factors on balance due — lien does not extend to secure trade acceptances which fell due several months after notice of assignment.

      U. S. Trust Co. of Paterson, N. J., v. Mendelson, 209 App. Div. 751, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 18, 1924, in favor of plaintiff upon the submission of a controversy under section 546 of the Civil Practice Act. The respondent claims under an assignment made to it in 1920 by the Rush Silk Manufacturing Company of an amount due the Rush Silk Manufacturing Company under a contract originally executed in 1917, and modified in 1918, whereby appellants undertook to act as factors in the marketing of merchandise made by the Rush Silk Manufacturing Company. The appellants contend that they are entitled to a lien on the balance due on the factoring contract to secure themselves for the payment of deliveries of raw silk made by them under contracts made in 1919 and 1920, whereby they sold silk to respondent’s assignor to be delivered in installments and paid for by trade acceptances, and that such lien extends to secure trade acceptances so given, which fell due several months after notice of the assignment and which, respondent’s assignor failed to meet.

      Joseph Sapinsky and Max Uviller for appellants.

      F. Carroll Taylor and Louis H. Porter for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Cuban Commercial and Industrial Company, Respondent, v. The Richmond Fire Insurance Company, Appellant.
    (Argued May 7, 1925;
    decided June 2, 1925.)

      Insurance — construction of indorsements on pol 'ey of fire insurance suspending insurance on certain merchandise while it was covered by other insurance.

      Cuban Cornel. & Industrial Co. v. Richmond F. Ins. Co., 211 App. Div. 846, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 27, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a policy of fire insurance. The question was as to the proper construction of the following indorsements on the policy. “ In consideration of the premium recited in this policy and other valuable considerations, it is herewith understood and agreed that no claim for premium of whatever nature shall be made under this policy in respect to any sugars that shall at any time come under the coverage of the Special Policy issued in conjunction with the so-called Cuban Sugar Finance Syndicate.” “ In consideration of the premium for which this policy is written, and other valuable considerations, it is herewith further understood and agreed that should any sugars of the assured at any time during the life of this policy be covered by insurance for the account of the Cuban Sugar Syndicate Corporation coincidentally and simultaneously with their release by the said Cuban Sugar Syndicate Corporation this policy shall then automatically cover such sugar so released.” The sugars insured by the policies were on May 10, 1918, pledged to the Cuban Sugar Syndicate Corporation and, in accordance with the plan and requirements for the syndicate, were covered by insurance policies for the account of the syndicate, during the life of the loan. The loan was wholly repaid by August 8, 1918, and the pledged sugars were released by the syndicate, the warehouse receipts surrendered and the insurance certificates covering the sugar for the account of the syndicate as pledgee and of the owner as pledgor were surrendered to the insurers. The fire occurred September 8, 1918.

      Milo Otis Bennett, Paul D. Compton and William Otis Badger, Jr., for appellant.

      W. Calvin Chesnut, William S. Sinclair and Bruce Ellison for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    August G. Clambour, Respondent, v. Gerseta Corporation, Appellant.
    (Argued May 7, 1925;
    decided June 2, 1925.)

      Contract — sale — action for breach of contract for purchase of merchandise — defense that seller had failed to notify purchaser of readiness to deliver as to part of merchandise purchased.

      Clambour v. Gerseta Corporation, 210 App. Div. 398, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 2, 1924, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was for breach of contract for failure to accept fifty bales of raw silk under a contract of sale entered into between Takata & Co., plaintiff’s assignor, and the defendant, to be delivered ten bales at a time. One of the rules of the Silk Association of America, which was made a part of the contract, is as follows: “ Seller should notify buyer of readiness to deliver in accordance with contract terms of delivery and buyer is under equal obligations to call for silk when due him, but inadvertent failure of either party to tender or call for delivery shall not void contract where readiness to deliver can be proved.” The answer set up as a defense that the seller in breach of its agreement failed to notify it during July of readiness to deliver said raw silk in accordance with the terms of the contract, and that the defendant was at all times ready, willing and able to accept and pay for deliveries in accordance with the contract, which it had fully performed, except in so far as it was prevented by Takata & Co. It appeared on the trial that the seller had notified defendant within the required time that twenty bales had arrived and were ready for shipment but that defendant had never called for them. Plaintiff contended that the seller had defaulted in failing to notify as to the remainder.

      Herman Shulman, Mortimer Hays, Jacob J. Podell and A. Kane Kaufman for appellant.

      Harry C. Kayser and Webster J. Oliver for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Marie C. Dolge, as Administratrix of the Estate of Edward H. Dolge, Deceased, Appellant, v. Commercial Casualty Insurance Company, Respondent.
    (Argued May 7, 1925;
    decided June 2, 1925.)

      Insurance (accident) — action to recover upon-poli y insuring against injury while passenger on public conveyance — no recovery for'gunshot wound received while waiting for train on platform of station.

      Dolge v. Commercial Casualty Ins. Co., 211 App. Div. 112, affirmed.
    Appeal from a judgment, entered December 19, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for judgment on the pleadings and directed a dismissal of the complaint. The action was brought by the plaintiff, as administratrix, to recover a single indemnity under a policy termed “ Travel Accident Policy,” issued to Edward H. Dolge, the deceased, which provided insurance in the event of an accident while the assured was a passenger on a public conveyance. The amended complaint sets forth that on January 5, 1924, while the policy was in full force and effect, said Dolge was traveling from The Bronx to his home in Mount Vernon, Westchester county, N. Y., and while a passenger on a public conveyance, namely, “ the Hunt’s Point Station of New York, Westchester and Boston Railway,” which is a common carrier of passengers, received an accidental injury, viz., a gunshot wound, inflicted by the discharge of a gun in the hands of an unknown person, and that the injury thus received resulted in Dolge’s death within twenty-four hours.

      Julius Hallheimer and Hugo Levy for appellant.

      Theodore H. Lord and Fred H. Rees for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Samuel Nagler, Respondent, v. James Butler, Inc., et al., Appellants.
    (Argued May 7, 1925;
    decided June 2, 1925.)

      Negligence — master and servant — injury to window cleaner while in the course of employment.

      Nagler v. Buffer, Inc., 212 App. Div. 861, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1925, 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 defendants. Plaintiff contended that while performing his work cleaning windows in the store of James Butler, Inc., he was injured through the negligence of defendant Mark Lawless, district superintendent of said defendant James Butler, Inc., who while acting within the scope of his employment entered the store and negligently struck against the ladder on which plaintiff was standing, throwing him to the floor and causing the injuries complained of:

      Clarence S. Zipp and E. C. Sherwood for James Butler, Inc., appellant.

      Lillian Herbert Andrews and John H. Rogan for Mark Lawless, appellant.

      Alfred M. Bailey and Nathan Frankel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Philippine National Bank, Respondent, v. Bowring & Company, Appellant.
    (Argued May 8, 1925;
    decided June 2, 1925.)

      Bills, notes and cheeks — action to recover amount paid under commercial letter of credit.

      Philippine Nat. Bankv. Bowring & Co., 213 App. Div. 809, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 14, 1925, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover $90,000 and interest, the amount alleged to have been paid by the plaintiff to one Umberto. De Poli in Manila, Philippine Islands, under a commercial letter of credit issued by plaintiff upon the application of defendant. The defendant resisted such claim upon the ground that the plaintiff did not comply with the terms of the credit and further that under the circumstances of the admixture by plaintiff of transactions alleged to be for defendant’s account with transactions for the plaintiff’s individual account, the defendant should not be held responsible for transactions not shown specifically to have been for its accpunt.

      Frederick B. Campbell and Paul C. Whipp for appellant.

      John T. Loughran, James A. Delehanty and John W. Hannon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


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    The People of the State of New York, Respondent, v. Thomas Mazurkiewicz, Appellant.
    (Submitted May 8, 1925;
    decided June 2, 1925.)

      Crimes — arson —judgment of conviction affirmed.

      People v. Mazurhiewicz, 213 App. Div. 851, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 30, 1925, which affirmed a judgment of the Erie County Court rendered upon a verdict convicting the defendant of the crime of arson in the first degree.

      Thomas L. Newton for appellant.

      Guy B. Moore, District Attorney (John J. Kane of counsel), for respondent.
   Judgment affirmed under provisions of section 542 of the Code of Criminal Procedure; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


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    Thomas M. Stanley, Appellant, v. Daniel J. Leary et al., Copartners under the Firm Name of Leary & Co., Respondents.
    (Argued May 8, 1925;
    decided June 2, 1925.)

      Contract — master and servant — action for services — when proper 1o deduct from, gross receipts sum paid as excess profits tax in computing compensation of profit-sharing employee.

      Stanley v. Leary, 208 App. Div. 714, affirmed.
    Appeal from a judgment, entered February 2, 1924, 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 plaintiff, a profit-sharing employee, brought this action against his employers for an accounting of an alleged unpaid balance of compensation for services rendered in the year 1917, claiming the same to be due because the defendants, in computing the amount of his compensation, included as a deduction from their gross receipts a sum paid by them to the United States as excess profits tax.

      Anson Burlingame Cole and George R. Holahan, Jr., for appellant.

      Siegfried F. Hartman for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


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    The People of the State of New York, Appellant, v. Michael Schlagel, Respondent.
    (Argued May 8, 1925;
    decided June 2, 1925.)

      Conservation Law — fish and game — action to recover penalty for having fish nets in possession.

      People v. Schlagel, 210 App. Div. 323, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 1, 1924, sustaining defendant’s exceptions, ordered to be heard in the first instance by the Appellate Division, and granting a motion for a new trial in an action to recover from defendant a penalty under the provisions of section 182 of the Conservation Law for having fish nets in his possession within 300 feet of inland waters.

      Albert Ottinger, Attorney-General (John O. Bates of counsel), for appellant.

      George D. Forsyth for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with, costs in all courts, on opinion of Clark, J., below.

Concur: .Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Edward J. Quinn, Appellant, v. Thomas McCochrane, Respondent.
    (Argued May 8, 1925;
    decided June 2, 1925.)

      B al property — forcible entry .and detainer — failure to prove damage.

      Quinn v. McCochrane, 210 App. Div. 569, affirmed.
    Appeal from a judgment, entered December 5, 1924, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was to recover for an alleged forcible entry and detainer. The evidence showed that during all of the period defendant was in possession he paid the rent and there was no evidence to show that the use of the premises was worth more than the rent reserved.

      James Farrell for appellant.

      P. C. Dugan and Abbott H. Jones for respondent.
   Judgment affirmed, with costs, on the ground that independent of any other question there was no proof of damages.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


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    The People of the State of New York, Respondent, v. Joseph Hagen, Appellant.
    (Argued May 11, 1925;
    decided June 2, 1925.)

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

      People v. Hagen, 212 App. Div. 886, affirmed.
    Appeal from a' judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 26, 1925, which affirmed a judgment of the Kings County Court rendered upon a verdict convicting defendant of the crime of murder in the second degree.

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

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

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound; J.


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    Aimone Manufacturing Company, Appellant, v. Carl R. Schultz et al., as Trustees of Louise Schultz et al., Respondents.
    (Argued May 11, 1925;
    decided June 2, 1925.)

      Landlord and tenant — specific performance — action to compel specific performance of alleged agreement to renew lease.

      Aimone Mfg. Co. v. Schultz, 210 App. Div. 41, affirmed.
    Appeal from a judgment, entered July 12, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a. judgment in favor of plaintiff entere^ upon the report of a referee and directing a dismissal of the complaint. The action was to compel specific performance by the defendant trustees of an alleged oral, agreement to renew a lease of certain property occupied by the plaintiff as a factory at Nos. 433-437 East Twenty-second street and Nos. 430-436 East Twenty-third street, in the city of New York, for a term of five years commencing May 1, 1921.

      Robert S. Johnstone and Ellery O. Anderson for appellant.

      Henry T. Hall for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Moses Beal, Respondent, v. Standard Oil Company of New York et al., Appellants.
    (Argued May 11, 1925;
    decided June 2, 1925.)

      Negligence — proximate cause — injury from explosion of gasoline in well — liability of owner and installer of adjacent gasoline pump.

      Beal v. Standard Oil Co. of N. Y., 212 App. Div. 822, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 16, 1925, 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- defendants. Plaintiff was injured by an explosion which occurred when he lowered a, lighted lantern into a well, and sought to recover damages from defendants on the ground that the explosion was caused by gasoline which had percolated through the ground from a leaky gasoline pump owned by defendant Standard Oil Company of New York and installed by defendant Oram.

      John C. R. Taylor for Standard Oil Company of New York, appellant.

      Percy V. D. Gott for Charles R. Oram, appellant.

      Elbert N. Oakes for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


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    Arthur L. Washburns et al., Copartners under the Firm Name of Washburns Engineering Company, Respondents, v. Property Owners Co-operative Association of Middlesex County, Inc., Appellant.
    (Argued May 11, 1925;
    decided June 2, 1925.)

      Contract — action to recover for breach of contract for laying out and grading streets — defense of failure to do work according to terms of contract.

      Washburne v. Property Owners’ Co-op. Association, Inc., 209 App. Div. 365, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 16, 1924, modifying and affirming as modified a judgment in favor of plaintiffs entered upon the report of- a referee. The action was to recover damages for alleged breach of a written contract under which plaintiffs agreed with defendant corporation to lay out and grade certain streets and parts of streets on a tract of land owned by defendant. The complaint alleged that defendant had prevented performance of the contract by plaintiffs. The answer set up as a defense and counterclaim that the plaintiffs had failed to do the work in accordance with the contract and that they at no time intended to complete the contract.

      Maurice Rose for appellant.

      Frank R. Greene for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Bartholomew J. Hopkins et al., Appellants, v. Hattie M. Hawkins et al., Respondents.
    (Argued May 12, 1925;
    decided June 2, 1925.)

      Beal property — easements — right of way — action to compel specific performance of alleged option to purchase.

      Hopkins v. Hawkins, 211 App. Div. 833, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 5, 1924, unanimously affirming a judgment in favor of defendants, entered upon an order of Special Term granting a motion to dismiss the complaint on the ground that it failed to state a cause of action. The complaint demanded specific performance of the following provision in a deed theretofore executed by defendants Hawkins to the plaintiff. “ Said second parties are to have the first privilege and option of purchasing said five foot strip of land from said first parties, their hens and assigns for the sum of Five hundred ($500.00) Dollars and such sale of said five foot strip shall extinguish said easement on the part of said first parties, their heirs, executors and assigns.” The strip therein referred to in connection with an adjoining strip of the land conveyed to plaintiffs was used as a common driveway by the parties and as a way to property in the rear owned by the said Hawkins. Subsequently they conveyed said rear property to defendant Seeley together with the said right of way thereto and plaintiffs by this action seek to exercise their option and terminate said right of way.

      Frank Hopkins for appellants.

      Joseph M. Meatyard for Hattie M. Hawkins et al., respondents.

      B. B. Aylesworth for Elizabeth S. Seeley, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    Crenshaw Engineering and Construction Co., Inc., Appellant, v. New York Municipal Railway Corporation, Respondent. Lindley M. Garrison, as Receiver of New York Municipal Railway Corporation, Respondent; Ætna Casualty and Surety Company et al., Appellants, Impleaded with Another.
    (Argued May 12, 1925;
    decided June 2, 1925.)

      Contract — action to recover upon quantum meruit —■ counterclaim for alleged breach of contract.

      Crenshaw Eng. & Construction Co. v. N. Y. Munic. Ry. Corporation, 209 App. Div. 893, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1924, which affirmed a judgment in favor of defendant receiver against the plaintiff entered upon a verdict directed by the court and reversed a judgment in favor of defendants, appellants, dismissing said receiver’s counterclaim against them and directed judgment against them on said counterclaims. Initially the plaintiff, a contractor, sued the railway corporation and the receiver thereof to recover upon a quantum meruit for the claimed breach of a construction contract. About a year later the receiver brought a counter action against the contractor and the sureties on its performance bond, claiming damages for breach of contract against the contractor and against the sureties. These two actions were consolidated by an order entered on the eve of a trial of the contractor’s suit.

      John W. Hogan, Paul Bonynge and William H. Harding for appellants.

      D. A. Marsh, George D. Yeomans and Trabue Carswell for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    Julian P. Fairchild et al., as Receivers of Atlantic Dock Company, Appellants, v. Union Ferry Company of New York and Brooklyn, Respondent.
    (Argued May 13, 1925;
    decided June 2, 1925.)

      Wharves and piers — riparian rights — action to enjoin maintenance of ferry rack, bridges and structures alongside pier owned by plaintiffs.

      Fairchild v. Union Ferry Co. of N. Y. & Brooklyn, 212 App. Div. 823, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was brought to enjoin the defendant from maintaining a ferry rack, ferry bridges and other ferry structures alongside and in front of a bulkhead and pier owned by the plaintiffs at and near the foot of Hamilton avenue in the borough .of Brooklyn and for the recovery of damages for maintenance of the structures complained of from 1916 to commencement of the action. • Plaintiffs’ claim was based upon the contention that the defendant had no right to maintain its rack in such close proximity to the side of the dock company’s pier as to prevent the latter from using that side of the pier for the mooring of vessels or for any commercial purpose.

      Francis L. Durk for appellants.

      George P. Hotaling for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    Arnold A. Kline et al., Appellants, v. The Myriad Pictures Corporation et al., Respondents.
    (Argued May 13, 1925;
    decided June 2, 1925.)

      Fraud — election of remedies — plaintiff may not maintain action to recover for fraud inducing execution of release of obligation of promissory .notes while prosecuting action to recover on notes.

      Kline v. Myriad Pictures Corporation, 211 App. Div. 550, affirmed.
    Appeal from a judgment, entered February 26, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing an order of Special Term denying a motion to strike out plaintiffs’ reply and for judgment in favor of defendants and granting said motion. The action was for alleged fraud by which plaintiffs were induced to execute'a release of the obligation of certain promissory notes. The answer set up as a defense that simultaneously with the commencement of this action plaintiffs had commenced another action to recover on the notes. The question was whether this action was barred under the doctrine of election of remedies.

      Jay Leo Rothschild and Louis Rivkin for appellants.

      Leopold Blumberg for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    Herbert Robinson, an Infant, by Winfield Robinson, His Guardian ad Litem, Respondent, v. The President and Trustees of the Village of Monticello, Appellant, Impleaded with Another.
    (Argued May 13, 1925;
    decided June 2, 1925.)

      Negligence — master and servant — child struck by truck — when driver hired by contractor in general employ of village for which work was being done.

      Robinson v. Prest., etc., Village of Monticello, 209 App. Div. 841, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 20', 1924, 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 defendants. The question was whether the driver of a truck which struck plaintiff and caused the injuries complained of was in the employ at the time of the accident of the defendant village for which the owner of the truck and employer of the driver was doing construction work pursuant to a contract.

      John Bright and Abram F. Servin for appellant.

      Leslie E. Hicks and Arthur C. Kyle for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Simon Doniger, Appellant, v. St. Mark’s Holding Corporation et al., Respondents.
    (Submitted May 14, 1925;
    decided June 2, 1925.)

      Lease — action to enjoin breach of alleged covenant.

      Doniger v. St. Mark’s Holding Corporation, 211 App. Div. 808, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November "28, 1924, 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 for an injunction to restrain the respondents from leasing or subletting the whole or any part of the block front from Union street to Eastern parkway on the easterly side of Franklin avenue, in the borough of Brooklyn, for the use and occupancy as a drug store and for the purchase, sale and distribution of drugs in any form whatsoever and for the purchase, sale or distribution of ice cream in connection with the said drug store, until February 15, 1932, in violation of an alleged covenant contained in a lease.

      Theodore B. Chancellor and A. Loeb Salkin for appellant.

      Arthur Hutter for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    John Palmieri, Appellant, v. Clara Katzenberg, Respondent.
    (Argued May 14, 1925;
    decided June 2, 1925.)

      Vendor and purchaser — real property — marketability of title.

      Palmieri v. Katzenberg, 209 App. Div. 889, affirmed.
    Appeal from a judgment, entered December 6, 1924, 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 judgment in favor of defendant. The action was to recover moneys paid on account of the purchase price of real property. The defendant counterclaimed for specific performance of the contract to purchase. Plaintiff contended that a certain judgment recovered against defendant’s predecessor in title a year after it conveyed its title to the premises was nevertheless a lien upon the property rendering the title unmarketable.

      John Palmieri, Abraham Wilkes and Charles F. Paterno for appellant.

      Louis Kunen and Oscar Englander for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Michael Kilgallon, Respondent, v. The Cunard Steamship Company, Ltd., Appellant.
    (Argued May 14, 1925;
    decided June 2, 1925.

      Negligence — master and servant — longshoreman injured by falling skid or fender.

      Kilgallon v. Cunard 8. 8. Co., Ltd., 212 App. Div. 825, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 13, 1925, 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, his employer. Plaintiff, a longshoreman, while employed in the hold of one of defendant’s steamers was struck by a falling skid or fendér which had been hung to protect the woodwork around the hatch about twenty- three feet above the hold.

      Thaddeus G. Cowell for appellant.

      James A. Gray and William S. Butler for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Shipley-Hollins Co., Inc., Respondent, v. Philip Miller et al., Doing Business under the Firm Name of Gold Brand Waist Company, Appellants.
    (Argued May 14, 1925;
    decided June 2, 1925.)

      Contract — sale — action to recover for refusal to accept delivery of goods sold.

      Shipley-Hollins Co., Inc., v. Miller, 211 App. Div. 846, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1924, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was to recover for refusal to accept goods alleged to have been purchased by defendants from the plaintiff. It was alleged that on January 29, 1920, the defendants gave plaintiff a written order for 220 pieces of cotton goods at a minimum price of seventy-five cents a yard, delivery to be made about the following November or December. During the spring and summer of 1920 the cotton market collapsed, so that in November and December these goods had fallen to eighteen cents per yard, and the defendants refused to accept delivery.

      Eugene L. Bondy and F. Sidney Williams for appellants.

      Alfred L. Marilley for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York, Respondent, v. John Russo, Appellant.
    (Submitted June 1, 1925;
    decided June 2, 1925.)
   Motion for re-argument denied. (See 239 N. Y. 548, 604.)


text:
    Charles M. Camp, as Executor of Ellen P. Kellogg, Deceased, Appellant, v. Alfred G. Reeves et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others. Ethel T. Kellogg, as Executrix of John P. Kellogg, Deceased, Appellant, v. Alfred G. Reeves et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others. Alva E. Belmont, Appellant, v. Alfred G. Reeves et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others.
    (Argued May 12, 1925;
    decided June 9, 1925.)

      Limitation of actions — attorney and client — failure by attorneys to inform client of facts knowledge of which might have prevented loss — action not brought within six years thereafter' barred by Statute of Limitations.

      Camp v. Reeves, 209 App. Div. 488; Kellogg v. Reeves, 209 App. Div. 496; Belmont v. Reeves, 209 App. Div. 497, affirmed.
    Appeal, in each of the above-entitled actions, from a judgment entered June 12, 1924, 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 of defendants, respondents, for a dismissal of the complaint as to them and granted said motion. The actions were brought to recover for failure of defendants, respondents, attorneys at law, to inform plaintiffs who, in various capacities, were their clients as to the theft, dishonesty and criminality of a partner, whereby the plaintiffs suffered loss. The Appellate Division held that the actions were barred by the Statute of Limitations.

      Vincent H. Rothwell, George Gordon Battle, Harold Harper and Albert C. Rothwell for appellants.

      Frederick Collin for respondents.
   Judgment in each case affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Cardozo, J.


text:
    Thomas E. Moore, Appellant, v. Van Beuren and New York Bill Posting Company, Respondent.
    (Argued May 13, 1925;
    decided June 9, 1925.)

      Negligence — proximate cause — destruction of property on land, from fire communicated from one negligently started several lots away.

      , Moore v. Van Beuren & N. Y. Bill Posting Co., 208 App. Div. 352, affirmed.
    Appeal from a judgment, entered May 22, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover for the destruction of property upon plaintiff’s land by fire alleged to have been communicated to such property from one negligently started by defendant’s employees. It appeared that between the plaintiff’s lot and the point. where it is claimed the fire was started there intervened several other lots owned by different people and a street. The Appellate Division held that defendant was not liable for the injury to plaintiff’s property, the origin of the fire being too remote.

      Mark Goldberg and Louis Kunen for appellant.

      George L. Hubbell, Jr., and Daniel S. Murphy for respondent.
   Judgment affirmed, with costs, on opinion of Merrell, J,, below.

Concur: Hiscock, Ch. J., Pound, McLaughlin and Andrews, JJ. Dissenting: Cardozo, Crane and Lehman, JJ.


text:
    Charles E. Olson, Respondent, v. Metal Package Corporation of New York, Appellant.
    (Argued May 14, 1925;
    decided June 9, 1925.)

      Negligence — injury to motorman of a trolley car through collision with motor truck.

      Olson v. Metal Package Corporation of New York, 211 App. Div. 848, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1925, modifying and affirming as modified 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, a motorman on a trolley car, received the injuries complained of as the result of a collision between his car and a motor truck belonging to defendant. The trolley car was proceeding easterly on Tremont avenue, borough of The Bronx and had come to' a stop at Mapes avenue. The defendant’s truck was also eastbound and while the trolley car was at or immediately near Mapes avenue, passed on the left and then endeavored to turn to the southeast to get upon the track ahead of the trolley car, and crashed into the left side of the front vestibule.

      Charles H. Tuttle and William B. Roulstone for appellant.

      Thomas J. O’ Neill and Leonard F. Fish for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Charles H. Tuttle, Respondent, v. Home Insurance Company, Appellant.
    (Argued May 15, 1925;
    decided June 9, 1925.)

      Insurance — action to recover upon policy of fire insurance covering ’ furniture in dwelling house and additions — furniture in separate building physically connected with dwelling covered.

      Tuttle v. Nome Ins. Co., 213 App. Div. 816, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 31, 1925, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a policy of fire insurance insuring furniture of the assured “ while contained in the said dwelling house and additions.” The furniture destroyed was contained in a building separate from the dwelling house though physically connected therewith.

      Frank Sowers for appellant.

      Charles H. Tuttle and Martin A. Schenck for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    W. H. Dill Company, Inc., Respondent, v. New York Central Railroad Company, Appellant.
    (Submitted May 15, 1925;
    decided June 9, 1925.)

      Negligence, — railroads — crossing accident — motor truck struck by locomotive at street crossing.

      Dill Co., Inc., v. N. Y. Central R. R. Co., 207 App. Div. 837, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 10, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages to an automobile truck which was struck by a locomotive of the defendant company in the city of Buffalo, at the point where Bird avenue crosses the railroad tracks of the defendant. It appeared that at a point approximately 130 feet from the crossing the track curves so as to shut off the view of an approaching train. There was evidence that the driver of the truck looked both ways when he was about 14 feet from the track; that he was driving about five miles an hour; that no crossing signal was sounded and that there was no flagman at the crossing though a city ordinance required that one should be kept there.

      J. E. Kelly for appellant.

      Julius A. Schreiber and Hamilton Ward for respondent.
   Judgment affirmed, with costs; no-opinion.

Concur: Caedozo, Pound, Ceane and Lehman, JJ. Dissenting: Hiscock, Ch. J., McLaughlin and Andrews, JJ.


text:
    Julia A. Walsh, Respondent, v. Guy B. Dickison, Appellant.
    (Argued May 15, 1925;
    decided June 9, 1925.)

      Negligence — streets — contractor engaged in paving street not liable to one crossing who sustains injury through the giving way of block of stone on which she stepped.

      Walshv. Dickison, 212 App. Div. -851. reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 26, 1925, 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, who, at the time of the accident was paving Oswego street in the city of Syracuse. The paving on one side of the street was completed. Beyond that a trench eighteen or twenty inches deep and the width of a car track had been excavated preliminary to paving. Plaintiff, in attempting to cross the street at a regular crosswalk stepped down into this trench, crossed it and seeing a stone against the further side stepped on it to regain the pavement, the stone gave way and she fell, sustaining the injuries complained of.

      Frederick T. Pierson for appellant.

      Walter J. Welch for respondent.
   Judgments reversed and new trial granted, costs to abide the event, on the ground that the evidence does not establish negligence on the part of defendant.

Concur: Hiscock, Ch. J., Caedozo, Pound, McLaughlin, Ceane, Andrews and Lehman, JJ.


text:
    In the Matter of the Application of William C. Whish, Chairman and Legislative Representative of the New York State Legislative Board, Brotherhood of Locomotive Engineers, et al., Appellants. Public Service Commission of the State of New York, Respondent.
    (Argued May 15, 1925;
    decided June 9, 1925.)

      Pailroads — Public Service Commission without authority to direct as to equipment of locomotives employed in interstate commerce.

      Matter of Whish v. Public Service Commission, 205 App. Div. 756, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 19, 1923, which confirmed a determination of the Public Service Commission of the State of New York refusing to issue an order requiring locomotive engines used within the State to be equipped with vestibuled cabs pursuant to the provisions of section 77 of the Railroad Law, as amended by chapter 649 of the Laws of 1918, upon the ground of lack of jurisdiction, the Commission holding that the law cannot be enforced by reason of the fact that Congress has asserted authority over the equipment of locomotives employed in interstate commerce, thus occupying the field to the exclusion of the State.

      William E. Fitzsimmons for appellants.

      Russell B. Burnside and Charles G. Blakeslee for respondent.
   Order affirmed, with costs, on opinion of Hinman, J., below. (See, also, act June 7, 1924 [43 Stat. 659], and C. & O. R. R. Co. v. Groeger, 266 U. S. 521, 530.)

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Railway Terminal Warehouse and Storage Company, Appellant, v. James Geary et al., Respondents.
    (Argued May 15, 1925;
    decided June 9, 1925.)

      Real property — action to have it adjudged that defendants had purchased real property as trustees for plaintiff and for an accounting as to rents and conveyance of the property.

      Railway Terminal Warehouse & Storage Co. v. Geary, 212 App. Div. 95, affirmed.
    Appeal from a judgment, entered March 9, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a Judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint: The action was in equity to have it adjudged that defendants had purchased and held certain real property as trustees for the plaintiff; that they be required to account for the rents and profits thereof and convey the said property to the plaintiff upon payment of the purchase ‘price less the amount of rents received.

      Daniel J. Dugan, Isadore Bookstein and W. Joseph Shanley for appellant.

      John T. Norton and George C. Lecomte for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaugh- ■ lin, Crane, Andrews and Lehman, JJ.


text:
    Catherine V. Trowbridge, Appellant, v. Katie Oehmsen, Respondent.
    (Submitted June 1, 1925;
    decided June 9, 1925.)

      Appeal — motion to dismiss denied upon payment of costs.

    Reported below, 207 App. Div. 740.
    Motion to dismiss an appeal from a judgment, entered May 8, 1924, 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 at a Trial Term without a jury and directing judgment in favor of defendant.
    The motion was made upon the ground of failure to file the required undertaking and serve copies of the case and briefs.

      William Baruch for motion.

      Benjamin I. Taylor opposed.
   Motion granted unless plaintiff within ten days pays ten dollars costs ’of motion in which case the motion is denied.


text:
    Albert S. Hecht, Respondent, v. Fred T. Ley & Co., Inc., Appellant, Impleaded with Others.
    (Submitted June 1, 1925;
    decided June 9, 1925.)
    Appeal— motion to dismiss appeal denied.

    Reported below, 213 App. Div. 817;
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    The motion was made upon the ground that the decision of the trial court was unanimously affirmed, except as modified by the striking out of an extra allowance.

      William H. Freedman for motion.

      Clifton P. Williamson and Edward V. Bourne opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Application of the City of New York, Relative to Acquiring Title to Seventh Avenue, etc., in the Borough of Manhattan. In the Matter of the Application of Margaretta K. Welsh et al., as Executors of and Trustees under the Will of Henry Welsh, Deceased, Respondents and Appellants. The Comptroller of the City of New York et al., Appellants and Respondents.
    (Argued June 1, 1925;
    decided June 12, 1925.)

      New York city — street opening — interest on award.

      Matter of City of New York (Seventh Ave.), 210 App. Div. 879, affirmed.
    Cross-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 21, 1924, which unanimously affirmed an order of Special Term directing and authorizing the comptroller of the city of New York to pay forthwith unto the surviving executor and trustee under the will of Henry Welsh, deceased, the interest from July 24, 1919, the date of the report of the commissioners of estimate, to April 29, 1921, the date of the confirmation of said report as to damage parcel No. 249 on the total sum of $131,172.02, together with lawful interest on said amount from April 29, 1921, down to the date of payment, and denied the motion of the petitioner for an order directing payment of interest on the award from the date of confirmation of the report of commissioners of estimate to the date of payment less certain lawful deductions together with interest thereon.

      George P. Nicholson, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for Comptroller of City of New York et al., appellants and respondents.

      Edwin W. Willcox for executors and trustees, respondents and appellants.
   Order affirmed, without costs to either party; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Josiah J. Russell et al., on Behalf of Themselves and Other Residents or Property Owners in the Borough of Brooklyn, Respondents, v. Nostrand Athletic Club, Inc., Appellant.
    (Argued June 8, 1925;
    decided June 12, 1925.)

      Nuisance — action to restrain maintenance in residential district of arena for boxing exhibitions — when judgment too broad.

      Russell v. Nostrand Athletic Club, Inc., 212 App. Div. 543, modified.
    Appeal from a judgment, entered April 21, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff upon new findings. The action was to restrain the defendant from maintaining and operating an open air arena for boxing exhibitions on the block bounded by Nostrand avenue, Sterling street, Clove road and Lefferts avenue, in the borough of Brooklyn, city of New York.

      John J. Fitzgerald and Abraham Lehman for appellant.

      George W. Tucker and Orville C. Sanborn for respondents.
   Per Curiam.

There is evidence to sustain the new findings made by the Appellate Division that the boxing matches conducted by the defendant at night constituted a nuisance in this residential section of the city, where the homes had been built and occupied long before the arena was constructed. With the weight of the evidence, we have nothing to do. The judgment, however, is too broad. The only complaint is against the boxing matches, which attract the noisy boisterous crowd; the evidence only relates to these. The judgment, however, restrains the defendant from holding “ any gymnastic or athletic entertainment or exhibition or public exhibition or show or any other similar activity in the night-time.” This would prevent any theatrical performance or any other exhibition, no matter how quiet and peaceful the performance and the spectators might be.

The judgment must be modified so as to restrain any prize fight, boxing exhibition, boxing contest, wrestling contest or any other similar activity in the night-time, plaintiffs to have the right to apply at the foot of this judgment for further relief as to any exhibition claimed to be an actiyity similar to those specifically restrained. As thus modified, the judgment should be affirmed, without costs.

His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ., concur; Pound, J., absent.

Judgment accordingly. •


text:
    Russian Reinsurance Company et al., Respondents, v. Francis R. Stoddard, Jr., as Superintendent of Insurance of the State of New York, et al., Appellants.
    (Submitted June 1, 1925;
    decided June 12, 1925.)
    Motion for re-argument. (See 240 N. Y. 149.)
   Per Curiam.

We have decided that considerations of justice and fairness to the defendant should lead „ the courts of this State to refuse jurisdiction of the present action to compel the defendant trust company to deliver securities and property to the plaintiff. We have not decided that equitable considerations ought not to lead the courts to take jurisdiction of some other action in which a measure of relief might be granted which would be fair to the plaintiff or its stockholders and yet afford adequate protection to the defendant.

The motion for a re-argument should be denied, without costs and without prejudice to the commencement of a new action for such, relief.


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Lands Required for the Opening of Eighteenth Avenue in the Borough of Queens. Anna A. Scheurer, Appellant.
    (Submitted June 1, 1925;
    decided June 12, 1925.)

      Appeal — motion to, dismiss appeal granted.

      Matter of City of New York (Eighteenth Ave.), 207 App. Div. 282, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 7, 1923, which reversed an order of Special Term denying a motion to confirm the report of commissioners of estimate and assessment and confirmed said report. The motion was made upon the grounds that the decision of the Appellate Division was unanimous and that permission to appeal had not been obtained; that no question of law was involved and that the appeal had not been prosecuted within the time prescribed by section 996 of-the charter of the city of New York.

      George P. Nicholson, Corporation Counsel (Joel J. Squier of counsel), for motion.
    No one opposed:'
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Foster R. Bowlby et al., as Executors of George M. Bowlby, Deceased, Appellants, v. John E. McQuail, Respondent.
    (Submitted June 2, 1925;
    decided July 15, 1925.)

      Appeal — when appeal from intermediate order, on certified questions, dismissed.

    Where, on appeal to the Court of Appeals, by permission, from an intermediate order, the questions certified will not be decisive of the appeal or are in such form that they cannot be answered at all, or if, in order to answer them, a question of fact must be determined,' the appeal will not be entertained.

      Bowlby v. McQuail, 211 App. Div. 869, appeal dismissed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 23, 1925, which affirmed an order of Special Term denying a motion to strike out the answer and for judgment .on the pleadings. The following questions were certified:
    1. Defendant’s “ separate defense ” seeks to rescind an agreement under the terms of which defendant gave the deceased plaintiff the promissory note sued upon in the complaint. Can a defendant maintain and establish the defense of rescission of an agreement by reason of false representations in a- case where he gave no notice of an election to rescind, and made no offer of restoration prior to his answer and until the expiration of fourteen months after the fraud alleged as the ground of the defense was discovered and then only in his amended answer in a pending action for the purpose of enabling him to allege a defense sufficient in law after a decision by the court to the effect that such defense without such an allegation was insufficient?
    2. Can a defendant maintain a defense of rescission of an agreement made between the parties to an action, if such defendant has not tendered and offered to restore all that he received from the" plaintiff as a consideration for the agreement at the time of the making of said agreement which he attempts to rescind?
    3. Can a defendant maintain a defense of rescission of an agreement made between the parties to an action, if it is impossible to place and restore the other party to the action and agreement to the same position as the said other party to the agreement was on the day and at the time they entered into the agreement, which agreement the defendant seeks to rescind, on the ground that he was induced to make such an agreement because of the false representations of the said other party?
    4. Can a defendant maintain a defense for the rescission of an agreement based upon an alleged false statement which alleged statement was a promise by the other party to do something for the defendant in the future, to induce the defendant to enter into the agreement sought to be rescinded, where there was no time agreed upon in which the other party was to perform such alleged promise, without having first made a demand on the other party for performance, and placed some limitation of time during which the other party was to perform and without alleging such demand in said defense?
    5. Does the defendant sufficiently allege fraud in said “ first defense ” to maintain the defense of rescission?
    6. Does the defendant sufficiently allege the defense of fraud as a ground for rescinding a written agreement between the parties to permit evidence to be introduced on behalf of the defendant to establish such defense when such evidence would tend to vary and contradict the terms of the said written agreement?
    7. Where the defendant pleads that an agreement of settlement of a prior action between the same parties as this action was without consideration, because the contract sued upon in the prior action was against public policy, that the agreement of settlement of said pending action is without any consideration, and that such agreement of settlement and any note given pursuant to the terms of said agreement is illegal, without consideration and void, in an action pending in another court to recover on a promissory note so given, between the same parties as in the action settled, can a defendant plead and maintain a defense to an action to recover on a promissory note given in settlement of a prior pending action to the effect that the agreement settling the former pending action in another court, that said former action settled, was based upon a contract against public policy, illegal and void?
    8. Is it against public. policy for a stockholder of a corporation, who is also an officer of the corporation, to receive compensation for his services, in obtaining three other stockholders to act with him, and who constitute themselves a committee to obtain sufficient stock from other stockholders of said corporation, to perform a contract made by such committee, to sell and deliver to a purchaser more than seventy per cent of the stock of such corporation, such compensation for said services being paid for by the purchaser of the stock?
    9. Is the settlement of a pending action by an agreement between the parties and an order made by the court in the action and entered pursuant to said agreement discontinuing and terminating the action res adjudicata and to the same extent as a judgment in the action determining the issues?
    10. - Can an agreement of settlement between the parties to a pending action, in the action, pursuant to which an order is made by the court in the action discontinuing and terminating the action, be attacked in another action in another court between the same parties to enforce said settlement- agreement?
    11. Can a promise "by one party to an agreement to do some act in the future for the other party, which promise induced the other party to execute the agreement, be made the basis of a defense of fraud to set aside the agreement executed, unaccompanied by some special circumstance entailing unusual hardship and where an action for damages would not give the party relying on the promise adequate relief?
    12. Is the “ separate defense ” together with the undisputed facts in the record, sufficient in law to constitute a defense?
    i, 13. Is the “ second defense ” together with the undisputed facts in the record, sufficient in law to constitute a defense?

      Theodore T. Baylor for appellants.

      Carroll Blakely Low and Walter Carroll Low for the respondent.
   Per Curiam.

The plaintiffs moved under Civil Practice Rules 103, 104, 109, 112, 113, “ and generally,” to strike out an entire answer and for summary judgment. The motion was denied and on appeal to the Appellate Division the order was affirmed, permission given to appeal to this court and certifying thirteen questions.

The order which we are asked to review is an intermediate one. The only.power this court has to review such an order is by virtue of the permission granted by the Appellate Division on the questions certified. (Civ. Prac. Act, § 588, subd. 3.) The questions which are certified limit the power of this court on review to answer such questions and no others. (Grannan v. Westchester Racing Association, 153 N. Y. 449.)

If the answers to the questions certified will not be decisive of the appeal, of if they aré in such form that they cannot be answered at all, or if in order to answer them this court must determine a question of fact, then the appeal will not be entertained. (Schieffelin v. Hylan, 229 N. Y. 633.) This is precisely the situation here. The answers to the questions certified will not be decisive of the appeal. Some of them cannot be answered at all and some in order to answer them require this court to determine a question of fact which the court has no power to do.

The appeal, therefore, must be dismissed, with costs.

His cock, Ch. J., Pound, McLaughlin, Crane and Andrews, JJ., concur; Cardozo, J., not voting; Lehman, J., dissenting.

Appeal dismissed.


text:
    Archibald B. Barker, Appellant, v. Liberty Bank of Jamestown, N. Y., Respondent.
    (Argued May 15, 1925;
    decided July 15, 1925.)

      Banks and banking — bills, notes and cheeks — action to recover balance of deposit in bank — defense that deposit was made as collateral security for payment of note made by president of depositor for its benefit — undisclosed principal.

      Barker v. Liberty Nat. Bank of Jamestown, 213 App. Div. 846, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 18, 1925, affirming a judgment in favor of defendant entered upon the report of a referee. The action was to recover a balance unpaid of a deposit made with defendant by a Canadian bank, plaintiff’s assignor. The defense was that the deposit was made as collateral security for the payment of a note made by the president of the Canadian bank with the knowledge and for the benefit of said bank which was the undisclosed principal in the transaction and received the proceeds of the loan.

      John S. Leonard and Louis L. Thrasher for appellant.

      Lee L. Ottaway and McKinley L. Phillips for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, McLaughlin, Crane and Lehman, JJ. Dissenting: His cock, Ch. J., Cardozo and Andrews, JJ.


text:
    The People of the State of New York ex rel. Falkenau & Hamershlag, Inc., Appellant, v. William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Respondents.
    (Argued June 2, 1925;
    decided July 15, 1925.)

      New York city — Zoning Law — determination of board of appeals refusing, in the exercise of discretion, permit to build garage, sustained.

      People ex rel. Falkenau & Hamershlag, Inc., v. Walsh, 214 App. Div 705, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1925, which reversed an order of Special Term sustaining a writ of certiorari and annulling a determination of the board of appeals of the city of New York refusing the relator a permit to build a garage on the easterly side of Jerome avenue, north of One Hundred and Eighty-third street in the borough of The Bronx. It was contended that the decision of the board of appeals denying a permit to the relator after granting permits to other property owners to erect garages in the same vicinity was a clear abuse of discretion.

      Horace S. Manges and Abram I. Elkus for appellant.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Willard S. Allen and William T. Kennedy of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York ex rel. Morris J. Werner, Appellant, v. William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Respondents.
    (Argued June 2, 1925;
    decided July 15, 1925.)

      New York city — Zoning Law — determination of hoard of appeals refusing, in the exercise of discretion, permit to build garage, sustained.

      People ex rel. Werner v. Walsh, 212 App. Div. 635, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1925, which reversed an order of Special Term sustaining a writ of certiorari and annulling a determination of the board of appeals of the city of New York refusing the relator a permit to build a garage on the easterly side of Jerome avenue between One Hundred and Eighty-third and One Hundred and Eighty-fourth streets in the borough of The Bronx. It was contended that the decision of the board of appeals denying a permit to the relator after granting permits to other property owners to erect garages in the same vicinity was a clear abuse of discretion.

      Henry S. Miller for appellant.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Willard S. Allen and William T. Kennedy of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Application of Joseph M. Ryan et al., Appellants, v. Abraham Kaplan et al., Composing the Municipal Civil Service Commission of the City of New York, Respondents.
    (Argued June 2, 1925;
    decided July 15, 1925.)

      New York city — civil service — board of education — jurisdiction of civil service commission to establish grades for employees of board of education not changed by chapter 680 of Laws of 1920.

      Matter of Ryan v. Kaplan, 213 App. Div. 131, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1925, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the municipal civil service commission of the city of New York to certify the salaries of the petitioners and other employees of the board of education of the city of New York at the rates fixed in the schedule adopted by said board of education June 16, 1920, and amended July 30, 1920. The civil service commission refused to certify salaries at the rates fixed on the ground that they were in excess of the maximum fixed for the grade of position under its rules. The petitioners contended that the Lockwood-Donohue Law (L. 1920, ch. 680) took away from the civil service commission the power to establish grades for the employees of the board of education, and that the fixing of respondents’ salaries in excess of the civil service commission’s grade by the board of education was not a promotion over which the municipal commission had jurisdiction. The Appellate Division held that the statute made, no change in the Civil Service Law or in respect to the jurisdiction of the civil service commission.

      John E. O’Brien and Robert L. Luce for appellants.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Elliot S. Benedict and Thomas W. A. Crowe of counsel), for respondents.
   Order affirmed, with costs, on opinion of McAvoy, J., below.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Pound, J.


text:
    Catherine M. Smith, as Administratrix of the Estate of John C. Smith, Deceased, Respondent, v. George H. Earle, Jr., et al., Defendants, and Walter J. Salmon, Appellant.
    (Submitted June 2, 1925;
    decided July 15, 1925.)

      Pleading — when complaint states cause of action against majority stockholder of corporation, lessee, of building, for death of workman through collapse of building during alteration.

      Smith v. Earle, 209 App. Div. 503, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 6, 1924, wffiich reversed an order of Special Term granting a motion for a dismissal of the complaint as to defendant, appellant, herein under rule 106 of the Rules of Civil Practice. The action was to recover for the death of plaintiff’s intestate, alleged to have been caused by the wrongful act, neglect and default of the defendants, and each of them, resulting in the collapse of the Strathmore Building, located on the northeast corner of Broadway and Fifty-second street, New York city, while intestate was lawfully at work therein and defendants were engaged in converting the structure from a tenement to a non-tenement building. The motion was made upon the ground that it appeared upon the face of the complaint that defendant, appellant, was neither the owner nor the lessee of the Strathmore Building, but that liability is attempted to be fastened upon him on the ground that the lessee, the Strathmore Leasing Company, was. a dummy to enable him as a majority stockholder and the true owner to carry on the work. The Appellate Division held that the complaint went further and alleged that the work was being done under the direction and control of defendant, appellant, and that he was guilty of the negligence which caused the building to collapse. The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, Walter J. Salmon? "

      Walter H. Bond for appellant.

      Ralph Gillette and Charles P. Carney for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Pound, J.


text:
    The People of the State of New York, Respondent, v. Ambrose Ross, Appellant.
    (Argued June 3, 1925;
    decided July 15, 1925.)

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

    Appeal from a judgment of the Nassau County Court, rendered October 10, 1924, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Frederick J. Groehl and Joseph Lonardo for appellant.

      Charles R. Weeks, District Attorney (Charles I. Wood of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Tillie Jacobstein, Respondent, v. Israel Jacobstein, Appellant.
    (Submitted June 3, 1925;
    decided July 15, 1925.)

      Husband mid wife — separation on grounds of cruel and inhuman treatment and abandonment.

      Jacobstein v. Jacobstein, 209 App. Div. 846, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 12, 1924, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action, wife against husband, for a separation on the grounds of cruel and inhuman treatment and abandonment.

      P. Chamberlain for appellant.

      John J. McInerney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Pound, J.


text:
    Thomas G. Abbott, Appellant, v. Richmond County Country Club, Respondent.
    (Argued June 4, 1925;
    decided July 15, 1925.)

      Negligence — maintenance in club locker room of concrete floor with smooth finish covered with thin coating of oil, not negligence — when visitor may not recover for injuries from fall.

      Abbott v. Richmond County Country Club, 211 App. Div. 231, affirmed.
    Appeal from a judgment, entered February 2, 1925, 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 verdict and directing 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. Plaintiff, while a guest of a member of defendant, received the injuries complained of through a fall while going out of the club locker room. The testimony showed that the floor was of concrete, with a smooth finish, stained and covered with a thin coating of linseed oil and was somewhat slippery. There was some evidence that others had fallen at the same spot. The Appellate Division held that the condition described was not such as to charge defendant with negligence.

      Don R. Almy for appellant.

      George F. Hickey and William Butler for respondent.
   Judgment affirmed, with costs; no opinion'.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not , voting: Pound, J


text:
    Louis Lavino, Respondent, v. John Ochsenhirt, Appellant, Impleaded with Another.
    (Argued June 4, 1925;
    decided July 15, 1925.)

      Negligence — motor vehicles — collision with motorcycle which swerved to left side of road to avoid striking another vehicle — recovery against driver for personal injuries sustained.

      Lavino v. Ochsenhirt, 211 App. Div. 848, affirmed.
    Appeal from a judgment, of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained through the negligence of the' defendant. The complaint alleged that while riding a motorcycle northerly, on Mott avenue at about One Hundred and Forty-fourth street in the city of New York, plaintiff received the injuries complained of as the result of a collision with a motorcycle which was being driven by defendant, appellant, a police officer, southerly on the east or wrong side of the road. It appeared that defendant approached behind a wagon and inclined to the left to avoid striking it when it. turned to the east to enter One Hundred and Forty-fourth street.

      George P. Nicholson, Corporation Counsel (John F. O'Brien, Willard S. Allen and Charles C. Marrin of counsel), for appellant.

      William J. Hogan and John Ambrose Goodwin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Pound, J.


text:
    Edward C. Suffern, Appellant, v. Kaufman Mandell et al., Respondents.
    (Argued June 4, 1925;
    decided July 15, 1925.)

      Contract — agreement by which plaintiffs business became a department of that of defendants’ — dispute as to who was entitled to proceeds of judgment recovered by plaintiff in action against third party for breach of contract.

      Suffern v. Mandell, 212 App. Div. 1, affirmed.
    Appeal from a judgment, entered March 13, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury, and directing judgment in favor of defendants. Plaintiff and defendants entered into a contract whereby the plaintiff’s business became a department in that of defendants’, the plaintiff agreeing to transfer his accounts and orders to defendants in consideration of their agreement to pay to him a percentage of the net profits. Thereafter plaintiff commenced an action and recovered judgment against a third party for breach of contract to deliver merchandise. The controversy here arises from a dispute as to whether plaintiff or defendants were entitled to the amount collected on the judgment.

      Chauncey E. Treadwell for appellant.

      Adolph Feldblum and Aaron William Levy for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Application of Anthony Moors, Appellant, for an Order of Mandamus against Charles L. Craig, as Comptroller of the City of New York, et al., Respondents.
    (Argued June 3, 1925;
    decided July 15, 1925.)

      Civil service— New York city — mandamus to compel reinstatement of petitioner in office of deputy receiver of taxes properly denied.

      Matter of Moors v. Craig, 211 App. Div. 813, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 12, 1924, which affirmed an order of Special Term denying a motion for an order of mandamus to compel the reinstatement of- the petitioner in the position of deputy receiver of taxes in the finance department of the city of New York, from which position he had been removed, after a hearing on charges of neglect of duty in withholding from the comptroller information regarding an investigation by the Queens county grand jury of the conduct of the Queens office of the receiver of taxes in June, 1922.

      George F. Hickey for appellant.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Elliot S. Benedict and Robert J. Culhane of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Cardozo and Pound, JJ.


text:
    Nancy E. Hunt, Respondent, v. Rebecca Wall, Appellant.
    (Submitted June 4, 1925;
    decided July 15, 1925.)

      Real property — mortgage —foreclosure of purchase-money 'mortgage — erroneous allowance of credit for deficiency in acreage.

      Hunt v. Wall, 211 App. Div. 856, affirmed.
    Appeal from a judgment, entered December 31, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment of Special Term in an action to foreclose a purchase-money mortgage on real property, which reduced the amount of the bond and mortgage by allowing a credit for a deficiency of acreage in the farm sold, and directing judgment of foreclosure and sale in favor of plaintiff for the full amount of the bond and mortgage upon new findings.

      Frederick P. Close for appellant.

      William L. Rumsey and Charles H. Banks for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Pound, J.


text:
    The People of the State of New York, Respondent, v. John Durkin, Appellant.
    (Argued June 5, 1925;
    decided July 15, 1925.)

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

    Appeal from a judgment of the Bronx County Court rendered October 1, 1924, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Arthur B. Kelly for appellant.

      John E. McGeehan, District Attorney, George B. DeLuca and Herman J. Fliederblum for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Anna L. Blakeslee, Appellant, v. Florence T. Nelson, as Executrix of Robert M. Nelson, Deceased, Respondent.
    (Argued June 5, 1925;
    decided July 15, 1925.)

      Vendor and purchaser — real property — specific perforinance — contract — action to compel specific performance of alleged contract to convey real property — offer and acceptance.

      Blakeslee v. Nelson, 212 App. Div. 219, affirmed.
    Appeal from a judgment, entered January 22, 1925 upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing an interlocutory judgment in favor of plaintiff entered upon a decision of the court at Special Term upon the submission of the within cause upon the minutes of trial at a Trial Term without a jury before a justice, since retired, and directing a dismissal of the complaint. The action was to compel specific performance of an alleged contract to convey real property. Plaintiff contended that certain letters and telegrams that passed between plaintiff’s agent and defendant’s testator constituted an offer and acceptance.

      William E. Woollard and Louis J. Rezzemini for appellant.

      A. Page Smith for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York, Respondent, v. Julius W. Miller, Appellant.
    (Argued June 8, 1925;
    decided July 15, 1925.)

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

    Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York, rendered November 10, 1924, upon a verdict convicting the defendant of the crime of murder in the first degree.

      John Caldwell Myers and John J. O’Connor for appellant.

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
   Judgment of conviction affirmed; no. opinion.

Concur: Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Hiscock, Ch. J. Absent: Pound, J.


text:
    Leo P. Byk et al., Doing Business under the Name of Triangle Novelty Company, Appellants, v. Richard E. Enright, as Commissioner of Police of the City of New York, et al., Respondents.
    (Argued June 8, 1925;
    decided July 15, 1925.)

      New York city — police — action to restrain police from interfering with slot machines — complaint properly dismissed.

      Byk v. Enright, 213 App. Div.-, affirmed.
    Appeal from a judgment, entered May 16, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint in an action to restrain the defendants from interfering with certain machines owned by the plaintiffs and leased to proprietors of stores and other places of business. Defendants contended that the machines were gambling devices and subject to seizure by the police.

      John P. Carroll for appellants.

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

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    George Neuberger, Appellant, v. Importers and Traders National Bank of New York, Respondent.
    (Submitted June 9, 1925;
    decided July 15, 1925.)

      Money had and received — action to recover proceeds of check drawn to order of infant and indorsed by guardian and deposited to account of her attorney by whom the whole amount was converted.

      Neuberger v. Importers & Traders Nat. Bank, 212 App. Div. 880, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 26, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at.a Trial Term without'a jury. The action was for money had and received, for $9,130.93, on an alleged cause of action claimed to have arisen out of the deposit with the defendant in 1911 of a check for $13,609.46, drawn by the Long Island Railroad Company to the order of the plaintiff (then an infant), indorsed in blank by his general guardian and delivered to one M. P. O’Connor, a depositor of defendant, and by him indorsed and deposited with the defendant, which collected the check and placed the proceeds to his credit and paid them out before the commencement of this action and before notice of any claim by plaintiff.

      Michael J. Joyce for appellant.

      Myron T. Townsend for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Henry S. Howe et al., Copartners under the Firm Name of Lawrence & Co., Respondents, v. Morris Hausman et al., Copartners under the Firm Name of Morris Hausman & Son, Appellants.
    (Argued June 9, 1925;
    decided July 15, 1925.)

      Contract — action to recover for failure to accept merchandise alleged to have been purchased — defense that goods were sold at “ guaranteed prices ” which plaintiffs refused to accept.

      Howe v. Hausman, 210 App. Div. 846, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1924, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict. The action was to recover damages for a claimed breach of contract arising out of the defendants’ alleged failure to accept and pay for merchandise ordered from the plaintiffs. The answer put in issue every material allegation of the complaint and for a separate defense alleged that the materials described in the complaint were sold upon the agreement and as a condition thereof that the price to be paid therefor was the price at which plaintiffs sold or agreed to sell to other customers similar goods on the date of the actual billing of said goods to the defendants; and that the defendants were at all times ready, able and willing to accept and pay for the goods described in the complaint in accordance with that agreement, but that the plaintiffs refused to deliver the goods.

      Terence J. McManus and Samuel Greenbaum for appellants.

      Chandler Bennitt for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    Henry J. McBride, Respondent, v. Lewis C. Hopkins Company, Appellant.
    (Submitted June 10, 1925;
    decided July 15, 1925.)

      Negligence — animals — action to recover for injury from bite of horse.

      McBride v. Hopkins Co., 213 App. Div. 855, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 5, 1925, modifying and affirming as modified 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 in harboring a vicious horse. The complaint alleged and there was testimony to show that while plaintiff was engaged in his work on a pier in New York city he .was bitten on the cheek by a horse belonging to defendant and that the same horse had previously snapped at another man on the same pier.

      Clarence S. Zipp, Joseph F. O’Brien and E. C. Sherwood for appellant.

      Julian J. Raphael and Samuel R. Robinson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound., J.


text:
    George S. Abell, Appellant, v. Henry Hunter et al., Composing the Board of Trustees of the Village of Cornwall, Appellants. John E. Preston et al., Respondents.
    (Argued June 10, 1925;
    decided July 15, 1925.)

      Judgment — practice ■ — • judgment amended so as to limit it to questions decided.

      Abell v. Hunter, 211 App. Div. 467, affirmed.
    Appeal from a judgment, entered February 9, 1925; upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of Special Term denying a motion to amend a final judgment so as to limit it to a determination only of questions decided by the Court of Appeals (237 N. Y. 85) and granted said motion. Plaintiff, instituted a certiorari in proceedings to review certain proceedings annexing territory to the village of Cornwall and to annul an election held in the enlarged village. Prior to the action the Legislature had enacted a statute purporting to validate the proceedings and this action was brought to test the validity of the act resulting in a decision by the Court of Appeals that the act was unconstitutional. Thereafter, the board of trustees of the village by resolution withdrew opposition to the certiorari proceeding and consented to entry of judgment in this action. At that meeting these appellants, who had been elected trustees of the enlarged village, were present and voted in opposition to the resolution. Thereafter a second judgment was entered by default in this action which adjudged that the determination of the board of trustees of the village of Cornwall in favor of the validity of the annexation petition and the election held and all steps taken in relation thereto, were null, void and illegal.

      Henry Hirschberg for appellants.

      Henry Hunter and Henry Kohl for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.


text:
    In the Matter of Thomas P. McKenna, an Attorney, Appellant. New York County Lawyers Association, Respondent.
    (Argued June 10, 1925;
    decided July 15, 1925.)

      Attorneys — disbarmeiit for professional misconduct.

      Matter of McKenna, 211 App. Div. 646, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 10, 1925, disbarring the appellant from practice as an attorney and counselor at law in' the State of New York for professional misconduct.

      Abraham Benedict for appellant.

      Richard H. Clarke and George R. Adams for respondent.
   Order affirmed; no opinion.

Concur: His cock, Ch. J., Cardozo, McLaughlin, Crane," Andrews and Lehman, JJ. Absent: Pound, J.


text:
    The Mariner Harbor National Bank, Appellant, v. Graham Beach Estates, Inc., Respondent, Impleaded with Others.
    (Argued June 11, 1925;
    decided July 15, 1925.)

      Appeal — 'order of Appellate Division reversing order granting motion for summary judgment and denying motion — appeal therefrom dismissed.

      Mariner Harbor Nat. Bank v. Graham Beach Estates, Inc., 213, App. Div. 875 appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department', entered April 9, 1925, which reversed an order of Special Term granting a motion to strike out the answer and for summary judgment and denied said motion.

      James Burke, Jr., for appellant.

      David May and Isaac N. Jacobson for respondent.
   Appeal dismissed, with costs: no opinion.

Concur: Hiscock, Ch. J., Cardozo, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Pound, J.