text:
    Edward C. Amundson, Doing Business under the Firm Name of W. L. Mildrum and Company, Appellant, v. James W. Armstrong, as Superintendent of Buildings of the City of Yonkers et al., Respondents.
    (Argued March 28, 1927;
    decided April 7, 1927.)

      Municipal corporations — Yonkers (city of) — mandamus — permit for erection of billboard properly refused.

      Amundson v. Armstrong, 218 App. Div. 748, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 29, 1926, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the superintendent of buildings of the city of Yonkers to issue a certificate for the erection of a billboard and denied said motion.

      John J. Finn for appellant.

      Arthur C. Hume, Corporation Counsel (Joseph W. Bryan of counsel), for respondent.
   Per Curiam.

Without passing upon other questions presented by this appeal, we hold that the petitioner’s failure to comply with the provisions of sections 7 and 8 of General Ordinance No. 1 of 1921 of the city of Yonkers justifies the action of the Superintendent of Buildings in refusing a permit for the erection of a billboard, and that no question as to the constitutional validity of such ordinance is presented by the record.

The order should be affirmed with costs.

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

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York ex rel. Ralph P. Stalter, Appellant, v. Patrick J. Lynch et al., Respondents. The People of the State of New York ex rel. Charles B. Byrnes, Appellant, v. John B. Lawson et al., Respondents.
    (Submitted March 28, 1927;
    decided April 7, 1927.)

      Villages — offices — elections ■— no election where person receiving highest number of votes for village office is ineligible.

      People ex rel. Stalter v. Lynch, 219 App. Div. 1, affirmed.

      People ex rel. Byrnes v. Lawson, 219 App. Div. 1, affirmed.
    Appeal in each of the above-entitled actions from a judgment entered December 28, 1926, 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 actions were to have it adjudged that plaintiffs were respectively entitled to the offices of president and trustee of the village of Haverstraw, as having received the next highest number of votes to candidates who were ineligible, and involved a construction of section 53 of the Village Law which reads, “ the person eligible and receiving the highest number of votes for an office shall be elected thereto.” The Appellate Division held that election depended upon “ eligibility ” and “ the highest number of votes,” and where the one receiving the highest number of votes was ineligible, no one was elected to the office in question.

      Albert Ottinger, Attorney-General (E. W. Hofstatter of counsel) for appellant.

      Frank Comesky for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Susquehanna Silk Mills, Respondent, against Fair Waist & Dress Co., Inc., Appellant.
    (Argued March 28, 1927;
    decided April 7, 1927.)

      Contract — sale —• arbitration — application to compel arbitration — defense that contract is void for lack of mutuality.

      Matter of Susquehanna Silk Mills v. Fair Waist & Dress Co., Inc., 217 App. Div. 727, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1926, which unanimously affirmed an order of Special Term directing the appellant to proceed to arbitration under a contract for the sale by respondent and purchase by appellant of a quantity of silk, which contract contained a provision for arbitration of all disputes. Appellant contended that the contract was void for want of mutuality in that under the third provision thereof the seller retained the option at any time, with or without notice, to increase, decrease, cancel or limit the deliveries. The provision read as follows:
    “ 3. The credit specified herein or which may hereafter be extended, both as to time and amount, as well as deliveries under this order, are subject to increase or decrease, cancellation or limitation at any time by the seller, or L. F. Dommerick & Co., with or without notice, and the merchandise herein described or such part as the seller may offer from time to time shall at its option be payable in cash on tender or offer of delivery, which the buyer agrees to pay, and upon default the seller may, at his option, hold the goods for the buyer’s account who shall be liable for the purchase price thereof, or sell the same for the account of the buyer, but at his risk and expense, giving credit for the amount realized therefor upon the purchase price thereof, or cancel the order in writing, but in no event shall the buyer be released from Ms liaMlity hereunder unless the order be cancelled by the seller in writing.”

      Henry C. Burnstine and Emanuel J. Freiberg for appellant.

      I. Maurice Wormser and I. Gainsburg for respondent.
   Order affirmed, with costs, on ground that the third condition of the contract permits cancellation of deliveries in accordance with the terms of credit and does not permit the cancellation or modification of other obligations of the contract.

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


text:
    In the Matter of the Application of Jacob Bassuk et al., Appellants, against John F. Hylan, as Mayor of the City of New York, et al., Respondents.
    (Argued March 28, 1927;
    decided April 7, 1927.)

      Appeal — reversal in exercise of discretion of order granting peremptory mandamus — appeal to Court of Appeals dismissed.

      Matter of Bassuk v. Hylan, 215 App. Div. 786, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 18, 1925, which reversed in the exercise of discretion an order of Special Term granting a motion for a peremptory order of mandamus and denied said moláon.

      Louis Nizer and Louis Phillips for appellants.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly and James E. O’Reilly of counsel), for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Application of Charles Klein, Respondent, against William J. Dalton, as Mayor of the City of Long Beach, et al., Appellants.
    (Argued March 28, 1927;
    decided April 7, 1927.)

      Municipal corporations — Long Beach (city of) —■ Optional City Government Lav: nov' in force.

      Matter of Klein v.- Dalton, 218 App. Div. 855, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1926, which affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel the defendants to perform all the acts and things necessary to carry out the provisions contained in chapter 444 of the Laws of 1914, known as the Optional City Government Law, to the end that an election may be held in the city of Long Beach, on the question of the adoption of a new charter, known as “ plan C ” in that law.

      David Cohen and Abraham H. Kessehnan for appellants.

      Irving G. Warshaw for respondent.
   Order, affirmed, with costs. Held that the Optional City Government Law (L. 1914, oh. 444) is now in force in* the city of Long Beach.

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


text:
    George H. Drake, Appellant, v. City of Buffalo et al., Respondents.
    (Argued April 5, 1927;
    decided April 7, 1927.)

      Municipal corporations — Buffalo (city of) — temporary injunction restraining the- holding of a special election vacated — submission to electors of resolution of city council.

      Dralce v. City of Buffalo, 220 App. Div. 233, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial. department, entered March 31, 1927, which affirmed an order of Special Term vacating a temporary injunction restraining the defendants from holding a special election pursuant to a resolution of the council of the city of Buffalo, submitting to the electors the following question: “ Shall the action of the council, taken December 29, 1926, in adopting item No. 57, authorizing the expenditure of two million one hundred sixty-nine thousand two hundred and sixteen ($2,169,216.00) dollars by the board of managers of the Buffalo City Hospital for additions to and alterations of existing buildings, be approved? ”
    The following question was certified: “ Does section 31 of the charter of the city of Buffalo, upon the filing of the requisite petition and the refusal of the council to rescind, require the submission to the electors of the resolution which is item 57, page 3036 of the council proceedings of the city of Buffalo of December 29, 1926, set forth in the complaint herein? ”

      Louis E. Desbecker and William S. Rann for appellant.

      Frederick C. Rupp, Corporation Counsel (Andrew P. Ronan of counsel), for respondents.

      Henry W. Killein, James O. Moore and Charles R. Sweeney for Edward E. Haley et al., intervenors.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    Carl Johndahl, Appellant, v. City of Buffalo et al., Respondents.
    (Argued April 5, 1927;
    decided April 7, 1927.)

      Municipal corporations — Buffalo (city of) — temporary injunction restraining holding of special election vacated — qualifications of signers of protest against resolution of city council.

      Johndahl v. City of Buffalo, 220 App. Div. 746, affirmed.
    Appeal, by permission, from 'an order of the Appellate Division of the Supreme Court in the fourth judicial department,. entered April. 1, 1927, which affirmed an order of Special Term vacating a temporary injunction restraining the defendants from holding a special election pursuant to a resolution of the council of the city of Buffalo submitting to the electors the following question: “ Shall the action of the council, taken December 29, 1926, in adopting item No. 67, authorizing the expenditure of two million one hundred sixty-nine thousand two hundred and sixteen (§2,169,216.00) dollars by the board of managers of the Buffalo City Hospital for additions to and alterations of existing buildings, be approved? ”
    The following question was certified: “ Under section 31 of the charter of the city of Buffalo, must the electors who have signed the petition in question, here, protesting against the enactment of a resolution of the council of the city of Buffalo, and requesting its repeal, be registered or enrolled electors of the city of Buffalo in order that their signatures may be counted? ”

      Walter C. Newcomb for appellant.

      Frederick C. Rupp, Corporation Counsel (Andrew P. Ronan of counsel), for respondents.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

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


text:
    Marie Helene Fluegel, as Administratrix of the Estate of Ernest J. Fluegel, Deceased, Appellant, v. Frederick R. Coudert, Respondent, Impleaded with Another.
    (Submitted April 4, 1927;
    decided April 7, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 393.)


text:
    Edward J. Richardson, Appellant, v. John H. Gregory, Respondent.
    (Argued March 28, 1927;
    decided May 3, 1927.)

      Contract — promise — consideration — action to recover money promised to be paid — complaint dismissed as not stating sufficient consideration.

      Richardson v. Gregory, 219 App. Div. 211, affirmed.
    Appeal from a judgment, entered February 11, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and granted said motion. The action was to recover a sum of money alleged to have been promised plaintiff by defendant if certain property was sold. The question was whether the complaint as amplified by a bill of particulars stated a sufficient consideration.

      H. D. Bailey for appellant.

      George S. Van Schaick for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Oh. J., Pound, Crane, Andrews, Lehman, Kellogg and O'Brien, JJ.


text:
    In the Matter of the Accounting of Guaranty Trust Company of New York, as Trustee under the Will of George P. Pollen, Deceased. Fritz L. Schmidt, Jr., Appellant; Rosalie F. Janoer, Respondent.
    (Argued May 2, 1927;
    decided May 3, 1927.)

      Attorneys — lien — substitution of attorneys — lien for services.

      Matter of Pollen, 219 App. Div. 714, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 9, 1927, which modified and affirmed as modified an order of the New York County Surrogate’s Court substituting attorneys for the appellant herein in place of the respondent and directing the appellant to pay to the respondent certain fees for legal services.

      E. Crosby Kindleberger and James C. Higgins for appellant.

      Rosalie F. Janoer, respondent, in person.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Albert Beckley, Appellant, against Berne A. Pyrke, Commissioner of Farms and Markets of the State of New York, Respondent.
    (Argued March 29, 1927;
    decided May 3, 1927.)
    Cattle— Department of Farms and Markets — compensation for slaughtered tubercular bull.

      Mailer of Beckley v. Pyrke, 218 App. Div. 352, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 15, 1927, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus and confirmed the determination of the Commissioner of Farms and Markets of the State of New York awarding compensation for a tubercular bull, slaughtered by the State, upon the basis that it was a “ grade ” animal rather than “ pure bred ” as claimed by appellant.

      Greenleaf 3. Van Gorder for appellant.

      Albert Ottinger, Attorney-General {Henry S. Manley of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Nellie Faulkner, Appellant, against Stratton-Amsterdam Corporation et al, Respondents. State Industrial Board, Respondent.
    (Argued March 29, 1927;
    decided May 3, 1927.)

      Workmen's compensation ■— master and servant — salesman kitted on road between place of employment and home — sufficiency of evidence that accident arose out of employment.

      Matter of Faulkner v. Stratton-Amsterdam Corp., 217 App. Div. 806, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 5, 1926, which reversed an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissed the claim. Claimant’s husband, an automobile salesman, was killed by the overturning of his automobile on one of two roads between his place of employment and his home. He had in his pocket a memorandum of the names of certain persons who lived along the road on which he was traveling, and an award was made upon the theory that he intended to call on prospective customers on his way home. The Appellate Division dismissed' the claim on the ground that there was no evidence that' the accident arose out of the employment.

      Charles S. Knight for appellant.

      F. A. W. Ireland and William S. Pendleton for respondent.

      Albert Ottinger, Attorney-General, for State Industrial Board, respondent.
   Order of Appellate Division reversed and award confirmed, with costs in this court and Appellate Division, upon the ground that there is evidence that the accident arose out of and in the course of employment.

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


text:
    In the Matter of the Claim of Mary Soverscany, Respondent, against New York Central Railroad Company, Appellant. State Industrial Board, Respondent.
    (Argued March 29, 1927;
    decided May 3, 1927.)

      Workmen’s compensation — master and servant — hemorrhage brought on by strain of using sledge.

      Matter of Soverscany v. New York Central B. B. Co., 218 App. Div. 803, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 20, 1926, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband, a blacksmith’s helper, after using a sledge hammer in the making of certain tools “ commenced to cough and spit up blood ” and shortly after was found lying behind the forge. An award was made upon evidence that the strain of using the sledge hammer was the activating cause of the hemorrhage and death.

      Robert E. Whalen for appellant.

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

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


text:
    In the Matter of the Claim of John H. Hubbard, Respondent, against The Lehigh and Hudson River Railway Company, Appellant. State Industrial Board, Respondent.
    (Submitted March 29, 1927;
    decided May 3, 1927.)

      Workmen's compensation — master and servant — railroads — foreman of yard coal pocket injured while unloading car — not engaged in interstate commerce.

      Matter of Hubbard v. Lehigh it H. R. Ry. Co., 217 App. Div. 808, affirmed.
    Appeal, by permission,' from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 18, 1926, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, employed as foreman of a coal pocket in the yard of a railroad engaged in interstate commerce, was injured while unloading a car at the pocket. The question was whether claimant was engaged in interstate commerce at the time of his injury.

      Stanley B. Johnson and Clifford S. Beattie for appellant.

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

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


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Real Property for Ferry Purposes Near the Foot of State Street and Atlantic Avenue, Borough of Brooklyn. Union Ferry Company of New York and Brooklyn, Appellant; The Comptroller of the City of New York, Respondent.
    (Argued March 29, 1927;
    decided May 3, 1927.)

      Eminent domain condemnation proceedings — Meie York city — interest on award for property taken for ferry purposes.

      Matter of City of New York ( Union Ferry Co.). 219 App. Div. 831, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 11, 1927, which affirmed an order of Special Term denying an application for an order directing the comptroller of the city of New York to pay to the appellant herein an award in condemnation proceedings with interest from January 19, 1922, the date of the vesting of title. Respondents contend that interest ceased to run on November 2, 1925, six months after the entry of the final decree and did not recommence to run until August 27, 1926, when appellant’s second demand was filed with the comptroller.

      Charles J. Nehrbas and James A. Lynch for appellant.

      George P. Nicholson, Corporation Counsel (Henry W. Mayo of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounts of Thomas Grieve, Deceased, Committee of the Estate of John T. Grieve, an Incompetent Person. John F. Kavanagh, as Substitute Committee, Appellant; The United States Fidelity and Guaranty Company, Respondent.
    (Argued March 30, 1927;
    decided May 3, 1927.)

      Incompetent persons — accounting — substituted, committee without authority to account for acts of deceased predecessor.

      Matter of Grieve, 218 App. Div. 780, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 5, 1926, which denied a motion for confirmation of the purported account of a deceased committee which account was prepared and filed by the substituted committee. The motion was. denied upon the ground that the substituted committee was without authority to account for the acts of his predecessor.

      John F. Kavanagh for appellant.

      Sunshine Ulman and William J. McArthur for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Conrad Gaschott, Respondent, v. The Land Title and Trust Company, Appellant.
    (Argued March 30, 1927;
    decided May 3, 1927.)

      Fraud — false representations' — action to recover damage arising from breach of contract by another into which plaintiff’s assignor loas induced to enter by false representations of defendant.

      Gaschott v. Land Title & Trust Co., 216 App. Div. 805, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1926; unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was for fraud, the complaint alleging that by reason of false representations made by defendant as to the financial standing of another corporation, plaintiff’s assignor was induced to enter into a contract with said corporation to drill certain oil wells and to enter upon the performance of said contract, and that by reason of the falsity of such representations and the subsequently discovered inability on the part of the corporation to carry out its obligations under the contract plaintiff suffered damage in a large amount.

      Herman Aaron for appellant.

      Frank C. Laughlin, William A. Moore, Lyman A. Spalding and John H. Jackson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Guiseppe Falco et al., Appellants, v. Zurich General Accident and Liability Insurance Company, Ltd., Respondent.
    (Submitted March 30, 1927;
    decided May 3, 1927.)

      Insurance (liability) — refusal by company to defend action or pay judgment recovered — arrest and confinement of policyholder on body execution for failure to pay judgment — action against company to recover damages — provision in policy that action may be maintained only to recover money paid in satisfactioti of judgment.

      Falco v. Zurich General Accident & Liability Ins. Co., 216 App. Div. 721, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 16, 1926, affirming a judgment in favor of defendant entered upon a dismissal of the complaint on the opening by the court at a Trial Term. The action was to recover upon a policy of liability insurance. The complaint alleged that defendant issued its policy insuring against liability for accident in and about certain premises; that plaintiffs purchased the premises and the policy was transferred to them; that a third party was injured by a fall on the sidewalk and that defendant was notified to defend but refused to do so; that a judgment was recovered against plaintiff which he could not pay and he was arrested and confined under a body execution. The policy contained the following clause: “No action for the indemnity against loss provided for in Agreement 1 of this policy shall lie against the Company, except for reimbursement of the amount of loss actually sustained and paid in money by the assured in full satisfaction of a judgment duly recovered against the assured after trial of the issue.”

      Benjamin C. Ribman for appellants.

      Edward P. Lyon and Harold S. Lyon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ralph Bash et al., Respondents, v. Hugh J. Sheeran, as Receiver of New York Railways Company, Appellant.
    (Argued March 30, 1027;
    decided May 3, 1927.)

      Landlord, and tenant — lease ■— action by tenants to recover sum deposited, as security for performance of covenants of lease ■ — • defense of breach of covenant to make alterations and repairs.

      Bash v. Sheeran, 216 App. Div. 800, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 26, 1926, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court. The action was to recover a sum deposited as security under a written lease to plaintiffs by defendant’s predecessor of real property. The defense was that plaintiffs had failed to make certain alterations and repairs in accordance with covenants in the lease. Plaintiffs’ evidence tended to show that the tenant in possession had prepared plans for the improvements and transmitted them to defendant for approval, but that no notice of approval was ever received by the plaintiffs. A year after the plans were submitted the premises were partially destroyed by fire. A year thereafter plaintiffs, pursuant to the fire clause in the lease, served notice that they elected to terminate the same. The trial court found that in the interval between the fire and termination of the lease plaintiffs remained in possession as agents of the lessor and not as tenants.

      Henry J. Smith and Eugene J. Noyes for appellant.

      Emanuel H. Reichart and Samuel Hettinger for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anne Nichols et al., Appellants, v. Hurtig & Seaman Theatrical Enterprises, Inc., et al., Respondents, Impleaded with Others.
    (Argued March 31, 1927;
    decided May 3, 1927.)

      Contract — license to produce play —- action to restrain production on ground time named within which play was to he produced had expired.

      Nichols v. Hurtig & Seaman Theatrical Enterprises, Inc., 217 App. Div. 107, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in" the first judicial department, entered June 4, 1926, unanimously affirming a judgment in favor of defendants entered upon the report of a referee. The action was to restrain defendants from producing a certain play in certain portions of the British Empire on the ground that the rights which defendants liad secured from plaintiffs to so produce the play had reverted to plaintiffs by reason of defendants’ failure to produce it within the time named in contracts between the parties.

      Benjamin Pepper and M. L. Malevinsky for appellants.

      Joseph J. Myers for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Chatham Phenix National Bank and Trust Company, as Trustee under the Will of Emile A. Thomas, Deceased. Mary F. Bremer, Appellant; Alice M. Hewes, as Executrix of James A. Hewes, Deceased, et al., Respondents.
    (Argued March 31, 1927;
    decided May 3, 1927.)

      Will — trust — residue to be divided amongst heirs'at law according to Statute of Distribution ■ — ■ rights in residue vested in heirs living at date of death.

      Matter of Thomas, 218 App. Div. 755, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in'the first judicial department, entered November 5, 1926, which unanimously affirmed a decree of the New York County Surrogate’s Court construing the will of Emile A. Thomas, deceased, and directing distribution of the residuary estate. Testatrix by her will created a trust for the benefit of a brother, nephew and niece and directed that upon the death of the brother and nephew her residuary estate be divided amongst her heirs at law according to the Statute of Distribution. At her death her heirs were three brothers and a nephew; at the time for distribution the niece was the only heir at law. The surrogate held that rights in the residue vested at the time of the death of testatrix and that it should be divided between the personal representatives of the heirs living at that date.

      Daniel A. Boyle for appellant.

      Louis G. Hart, Jr., and J. Hairy Hull for Alice M. Hewes, as executrix of James A. Hewes, deceased, respondent.

      Walter S. Newhouse for Mary H. Smyth, as administratrix of Peverill H. Smyth, deceased, respondent.
   Order affirmed, without costs; no opinion.

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


text:
    William F. O’Donnell, as Administrator of the Estate of Loretta O’Donnell, Deceased, Respondent, v. W. Louis Johnson, Appellant.
    (Argued March 31, 1927;
    decided May 3, 1927.)

      Negligence — motor vehicles — evidence — pedestrian killed at street crossing by being struck by automobile — reception in evidence of photograph of deceased.

      O’Donnell v. Johnson, 218 App. Div. 857, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 22, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate was struck by defendant’s automobile while crossing Bergen street at Sixth avenue in the borough of Brooklyn. The complaint alleged that at the time of the accident defendant was making a left-hand turn, cutting inside the intersection of the center lines of the two streets, without sounding his horn, and proceeding at a rate of speed in excess of that prescribed by the ordinance. During the trial of the action a photograph of the decedent was introduced in evidence by plaintiff’s counsel. Defendant contended this was error.

      Joseph F. Hanley, G. Everett Hunt and Alfred W. Andrews for appellant.

      Francis L. Driscoll and Richard J. Mackey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry B. Closson et al., as Executors of Corneliuett Smith, Deceased, Respondents, v. Susan D. Griffith et al., Appellants.
    (Argued April 1, 1927;
    decided May 3, 1927.)

      Negligence — motor vehicles — evidence — action for death through alleged negligence —’ evidence showing benefits received by next of kin under will of decedent improper — erroneous charge that jury may consider such evidence.

      Closson v. Griffith, 219 App. Div. 163, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1926, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial in an action to recover for the death of plaintiffs’ testator alleged to have been occasioned through the negligence of defendants. The Appellate Division held that the trial court improperly received evidence showing the benefits received by the next of kin of the testatrix as beneficiaries under her will, and improperly instructed the jury that such evidence might be considered in arriving at a verdict.

      F. A. W. Ireland for appellants.

      Henry F. Cochrane and William M. Sperry, 2nd, for respondents.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Bessie Steinhardt, Appellant.
    (Submitted April 4, 1927;
    decided May 3, 1927.)

      Crimes — landlord and tenant — New York city — violation of provision of Sanitary Code requiring landlords to furnish heat.

      People v. Steinhardt, 215 App. Div. 724, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 20, 1925, which affirmed a judgment of the Court of Special' Sessions of the city of New York convicting the defendant of violating section 225 of the Sanitary Code of the city of New York, in that being the owner of a building rented to and occupied by tenants as their homes, heated by a single.steam heating apparatus under control of defendant, who had contracted to furnish heat, the defendant failed to maintain a minimum temperature of sixty-eight degrees between the hours of six a. m. and ten p. m. on days when the outside temperature fell below fifty degrees Fahrenheit.

      Sidney Szerlip for appellant.

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, Joseph M. Lonergan and J. Joseph Lilly of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Philo A. Kent et al., Appellants, v. Burros Realty Corporation, Respondent, and Harry R. Austin, Appellant, Impleaded with Others.
    (Argued April 4, 1927;
    decided May 3, 1927.)

      Liens — mechanic’s lien — abandonment of work by contractor —■ action to foreclose liens for material and Idboi--allowance to owner for cost of completion and loss from delay.

      Kent v. Burros Realty Corp., 217 App. Div. 703, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 21,1926, modifying and affirming as modified a judgment in an action to foreclose a mechanic’s hen. The defendant-respondent entered into a contract with a builder for the erection of two houses. Before completion the builder abandoned the work and Hens for material and labor were filed against the buildings by materialmen and a workman. The owner proceeded to finish the work. Upon trial of this action the owner was allowed the cost of completing the buildings and for loss arising from delay in completion by reason of the default of the contractor and the balance of the contract price was awarded to the workman to be applied on his lien for labor. The Appellate Division modified so as to provide for payment of the whole of the workman’s lien.

      Howard E. Taylor and Ralph L. Emmons for appellants.

      Rollin W. Meeker for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Nicholas Solko, Respondent, v. Hay Foundry and Iron Works, Inc., Appellant.
    (Argued April 4, 1927;
    decided May 3, 1927.)

      Negligence — res ipsa loquitur — workmen injured through collapse of derrick.

      Solko v. Hay Foundry & Iron Works, Inc., 218 App. Div. 761, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 17, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was employed as a concrete worker on a building in course of construction arid defendant had the contract for and was engaged in placing the structural steel and iron work. Defendant’s workmen had raised a derrick on the fourteenth floor to hoist material. While a load of beams was being hoisted the derrick gave way and fell through to the seventh floor. Plaintiff, who was working in the basement, was struck by an angle plate and severely injured.

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

      Edgar J. Treacy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Daporta, as Administratrix of the Estate of Bernardo Daporta, Deceased, Respondent, v. Erie Railroad Company, Appellant.
    (Argued April 4, 1927;
    decided May 3, 1927.)

      Negligence — railroads — workman on railroad tracks struck by train backing without warning.

      Daporta v. Erie R. R. Co., 218 App. Div. 854, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 23,1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action brought by plaintiff’s intestate to recover for personal injuries alleged to have been sustained by him through the negligence of defendant. Intestate died after entry of judgment in his favor and his administratrix was substituted in his stead. In the course of his employment as track laborer intestate was one of a gang of men tamping the roadbed. Compressed air machines were used. The hose furnishing air to one of the machines having become disconnected near where intestate was at work, he proceeded to reconnect it and while doing so was struck by one of defendant’s trains which, it was alleged, backed down upon him without warning and received the injuries complained of.

      Murray G. Jenkins, William Dike Reed and William B. Shelton for appellant.

      Harold R. Medina and Sol Gelb for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Miriam G. Miller, Appellant, v. The Penn Mutual Life Insurance Company of Philadelphia, Defendant, and Irving Miller et al., Respondents.
    (Argued April 5, 1927;
    decided May 3, 1927.)

      Insurance — insolvency — liens — payment of premiums in excess of $BOO on life insurance policies payable to wife — death of insured insolvent — liens of creditors on policy.

      Miller v. Penn Mutual Life Ins. Co., 218 App. Dlv. 764, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 22, 1926, unanimously affirming a judgment in favor of defendants-respondents, entered upon a decision of the court at a Trial Term without a jury. Plaintiff was beneficiary of a policy of insurance on the life of her husband who had died insolvent. Premiums paid on policies on the life of deceased .exceeded $500 per annum, and the proceeds of policies purchased by the excess, including the one in litigation, were subject to the lien of creditors. Defendant insurance company paid the amount due into court and the question litigated was whether there were liens on the policy in favor of defendants-respondents as claimed.

      Mark W. Norman for appellant.

      Alfred Ekelman for Irving Miller, respondent.

      Jacob L, Holtzmann and Jacob Krisel for Sol. Miller et al., respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Glenn A. Dawley, an Infant, by LeRoy Dawley, His Guardian ad Litem, Respondent, v. Frederick McKibbin, Appellant. Leonard L. Dawley, an Infant, by LeRoy Dawley, His Guardian ad Litem, Respondent, v. Frederick McKibbin, Appellant.
    (Argued April 5, 1927;
    decided May 3, 1927.)

      Constitutional law — negligence — motor vehicles — constitutionality of section, %82-e of Highway Law making owner of automobile liable, for negligence of one operating car with his permission.

      Dawley v. McKibbin (2 eases), 217 App. Div 784, 785. affirmed.
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 15, 1926, unanimously affirming a judgment in favor of plaintiff, entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff by reason of a collision between an automobile in which he was riding and another belonging to defendant, it being alleged that the accident was occasioned through the negligence of the driver of the latter car. Defendant contended that section 282-e of the Highway Law, making the owner of an automobile liable for negligence of operator using car with his permission, was unconstitutional.
    , D. J. Seuberb and George R. Fearon for appellant.

      R. J. Shanahan for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Anna M. Angresani, Appellant, v. James Tozzi, Respondent.
    (Argued April 5, 1927;
    decided May 3, 1927.)

      Contract — services — verdict — action to recover on alleged contract for services — compromise verdict — immoral consideration.

      Angresani v. Tozzi, 217 App. Div. 642, affirmed.
    Appeal from a judgment, entered September 7, 1926, 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 the sum of $8,500 alleged to be due plaintiff for services, as housekeeper' for defendant for a term of four years and six months, it being alleged that defendant had agreed to pay for such services the sum of $150 per month. The jury awarded plaintiff a verdict of $2,500. The Appellate Division held that the verdict was clearly a compromise and could not be sustained. Furthermore, it appeared from the evidence that any agreement between the parties was founded upon an immoral consideration and could not be enforced.

      Andrew Byrne, Leonard F. Fish and Thomas J. O’ Neill for appellant.

      Irving Weinstein and Henry Silverman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The National Bank of Rochester, Respondent, v. M. S. Strome Company et al., Defendants, and Palmer-Marcy Co., Inc., et al., Appellants.
    (Argued April 6, 1927;
    decided May 3, 1927.)

      Mortgage — foreclosure — corporations — action to foreclose mortgage on real property owned by corporation — defense of failure to obtain stockholder’s consent to mortgage.

      National Bank of Rochester v. Strome Co., 219 App. Div. 761, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 11, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action to foreclose a mortgage upon real property. All of the defendants who appeal are holders of mechanics' liens on the property in question, except the defendant Anderson, as trustee in bankruptcy of M. S. Strome Company. That company was, when the action was commenced, the owner of the mortgaged premises. The plaintiff-respondent is the assignee of the mortgage. Pending the trial, the mortgaged premises were sold by consent of the parties, free of the liens claimed by the plaintiff and the various defendants, and these liens and claims were transferred to the proceeds of sale, which are held by the trustee in bankruptcy subject to the final judgment in this action. The answers of the trustee in bankruptcy and the defendant lienors alleged that the transaction which the trial court found resulted in a mortgage by the defendant M. S. Strome Company to the plaintiff herein was invalid for the reason that there was a failure to secure the stockholders’ consent and to file and record a certificate of such consent in the Monroe county clerk’s office, where the mortgage was recorded, pursuant to the requirements of section 16 of the Stock Corporation Law.'

      William H. Tompkins for appellants.

      Clarence P. Moser and Raymond Bentley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James L. Bruff et al., as Administrators of the Estate of Charles A. Bruff, Deceased, Appellants, v. Rochester Trust and Safe Deposit Company, Respondent.
    (Argued April 7, 1927;
    decided May 3, 1927.)

      Trust — income — husband and wife — trust for benefit of husband and wife and suroivoi--claim that income -paid to wife vested in husband as survivor upon her death — agreement that money should remain property of wife.

      Bruff v. Rochester Trust & Safe Deposit Co., 218 App. Div. 67, affirmed.
    Appeal from a judgment, entered December 7, 1926, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. This action was brought by the plaintiffs, as administrators of the estate of Charles A. Bruff, deceased, to recover of the defendant a sum of money deposited in the Fidelity Trust Company of Rochester in her own name by Ardelia Bruff, who was the wife of said Charles A. Bruff and predeceased him. The fund in dispute consisted of moneys paid to Ardelia Bruff by said Fidelity Trust Company as income under a certain trust agreement made for the benefit of said Ardelia Bruff and her husband, Charles A. Bruff, during their lives and the survivor of them, by Sarah L. Willis. The husband’s administrators claim that the accumulated income belonged to husband and wife jointly and vested in him as survivor upon her death. The Appellate Division made a new finding of fact to the effect that it was agreed between husband and wife that the income from the trust fund as paid to Ardelia Bruff should be and remain her property.

      Arthur E. Sutherland for appellants.

      George H. Harris and Horace G. Pierce for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edward S. Bowlend, Jr., Appellant, v. United States Fidelity and Guaranty Company, Respondent.
    (Argued April 7, 1927;
    decided May 3, 1927.)

      Principal and surety —■ undertaking —• bonds — condition that judgment not exceeding stated amount with interest and costs will be paid — surety not liable for running interest on claim, when such interest with principal sum recovered exceeds penal sum. of undertaking.

      Bowlend v. United States F. & G. Co., 218 App. Div. 656, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 11, 1927, in favor of defendant, upon the submission of a controversy under sections 546 and 547 of the Civil Practice Act. The controversy was as to the proper interpretation of an undertaking the condition of which was that “ the defendant, Frederick A. De Pilis, will, on demand, pay to the plaintiff the amount of any judgment which may be recovered in the action against the defendant, Frederick A. De Pilis, not exceeding the sum of One thousand (11,000) Dollars with interest and costs.” On March 16, 1926, plaintiff took judgment against De Pilis for $1,000, the amount of his claim, with $198 interest, being the amount accrued from October 21, 1922, and $186.71 costs. Defendant herein paid plaintiff the amount of its conceded liability, namely, $1,000, with interest from March 16, 1926, the date of the judgment against De Pilis, and $186.71 costs, with interest thereon from March 16, 1926. The question was as to plaintiff’s right to the additional $198 “ running interest ” on plaintiff’s claim against De Pilis. The Appellate Division held that the surety company was liable only for the amounts specified in the bond.

      W. N. Seligsberg, Clarence M. Lewis and Donald Marks for appellant.

      William J. McArthur for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Young Women’s Christian Association of the City of New York, Appellant, v. The City of New York, Respondent.
    (Argued April 7, 1927;
    decided May 3, 1927.)

      Tax — assessment — exemption — benevolent associations — action to cancel assessments levied upon real property of benevolent association used in part as public restaurant.

      Young Women’s Christian Assn. v. City of New York, 217 App. Div. 406, affirmed.
    Appeal from a judgment, entered June 24, 1926, 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 on trial at Special Term and directing a dismissal of the complaint. The action was in equity for cancellation of taxes assessed upon real property of the plaintiff for the years 1920, 1921 and 1922. The property in question, situated at the corner of Hudson and West Twelfth street in the city of New York, was used as a rooming and boarding house for working girls, and operated on a cost basis. A restaurant was also conducted in which meals were served not only to the occupants of the building but to the public. The Appellate Division held that the assessments complained of were not illegal.

      Nathan L. Miller and Harold Otis for appellant.

      George P. Nicholson, Corporation Counsel (William H. King and Isaac Phillips of counsel), for respondent.

      Seth T. Cole, William E. Sill and George F. Kenna for State Tax Commission.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles E. Earl, Appellant.
    (Submitted May 2, 1927;
    decided May 10, 1927.)

      Appeal — crimes — appeal without permission to Court of Appeals from unanimous affirmance of judgment of conviction dismissed.

      People v. Earl, 219 App. Div. 840, appeal dismissed.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department entered March 28, 1927, which unanimously affirmed a judgment of the Orange County Court rendered upon a verdict convicting the defendant of operating an automobile while intoxicated.
    The motion was made upon the ground that permission to appeal had not been granted.

      Elmer H. Lemon, District Attorney, for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Mary M. Ledwith, Appellant, v. Otto A. Rosalsky, Respondent.
    (Submitted May 2, 1927;
    decided May 10, 1927.)
   Motion to amend remittitur denied. (See 244 N. Y. 406.)


text:
    The People of the State of New York, Respondent, v. J. Frank Lilly, Appellant.
    (Submitted May 2, 1927;
    decided May 10, 1927.)

      Appeal — failure to file -papers and bring appeal on for argument — motion to dismiss granted.

      People v. Lilly, 217 App. Div. 732, appeal dismissed.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 11, 1926, which affirmed a judgment of the Court of General Sessions in the county of New York, rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.
    The motion was made upon the ground of failure to file the printed papers on appeal and bring the case on for argument.

      Joab H. Banton, District Attorney (William B. Moore of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    International Milk Co., Inc., Respondent, v. Isaac Cohen et al., Copartners under the Firm Name of I. Cohen & Sons, Appellants.
    (Submitted May 2, 1927;
    decided May 10, 1927.)

      Appeal ■ — • order of Appellate Division affirming order granting summary judgment — appeal to Court of Appeals without permission dismissed.

      International Milk Co., Inc., v. Cohen, 219 App. Div. 308, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 28, 1927, which affirmed an order of Kings County Court granting plaintiff’s motion for summary judgment.
    The motion was made upon the ground that permission to appeal had not been obtained and of failure to file the return and printed papers on appeal.

      John D. Beals, Jr., for motion.

      Louis Horoioits opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion..


text:
    Harvey A. Dwight et al, Appellants, v. Bertram H. Fancher et al., as Executors of Emily A. Watson, Deceased, et al., Respondents.
    (Submitted May 2, 1927;
    decided May 10, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 71.)


text:
    In the Matter of the Application of George Gardner, as Administrator of the Estate of Elizabeth M. Gardner, Deceased, Respondent, for a Judicial Construction of the Will of Blanche A. Thompson, Deceased. Friendship Hall Vacation Home, Inc., et al, Appellants; Farmers’ Loan and Trust Company, as Executor of Blanche A. Thompson, Deceased, et al., Respondent.
    (Argued May 2, 1927;
    decided May 17, 1927.)

      Will — trust — exercise of power of appointment — construction of will to determine whether there was a direct bequest of fund or whether it became part of residuary estate.

      Matter of Thompson, 218 App. Div. 130, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 5, 1926, which modified and affirmed as modified a decree of the New York County Surrogate’s Court construing the will of Blanche A. Thompson, deceased. The property left by testatrix at the time of her death was insufficient after the payment of her debts, the inheritance and estate taxes and administration expenses chargeable against her estate, to pay in full the legacies given by her will. The testatrix, however, had a power of appointment over a trust fund under a deed of trust which had been executed by herself and her husband. By her will the testatrix exercised the said power, and the question was whether she intended to blend the appointive fund with her own general estate (thereby subjecting it to the payment of her debts, legacies and other similar charges), or whether she intended the appointive fund to follow the course of distribution from the original trustees of the fund, to the appointees under the power — without becoming a part of her individual estate. The surrogate held the fund to be a part of the residuary estate applicable to the payment of legacies in full.

      Charles Angulo and Richard J. Turk, Jr., for Friendship Hall Vacation Home, Inc., appellant and respondent.

      Daniel J. Mooney and Carl E. Peterson for Mary- F. Garratt, appellant and respondent.

      J. Ard Haughwout and Arthur G. H. Power, Jr., for George Gardner, as administrator, respondent.

      Matthew C. Fleming and George N. Whittlesey for Farmers’ Loan and Trust Company, as executor, respondent.

      Reuben Leslie Maynard for Helen G. Durfee et al., respondents!

      Paul T. Kammerer, Jr., for Jean Gardner et al., respondents.
   Order affirmed, with costs to each respondent separately appearing on this appeal payable out of the estate; no opinion.

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


text:
    Shipman Coal Company, Respondent, v. The Delaware and Hudson Company, Respondent. Joseph Nahas and Edward Nahas, Appellants.
    (Argued May 2, 1927;
    decided May 17, 1927.)

      Practice ■— process ■— attachment — motions to vacate order for substituted service without the State and warrant of attachment.

      Shipman Coal Co. v. D. & H. Co., 219 App. Div. 312, affirmed.
    Appeals, by permission, from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 1927, which reversed orders of Special Term granting motions to vacate a warrant of attachment and an order for substituted service upon appellants herein without the State and denied said motions.
    The following question was certified on granting to Joseph Nahas permission to appeal: “ The defendant Joseph Nahas, a resident of the State of Pennsylvania, having obtained a judgment in the State of Pennsylvania against the defendant The Delaware and Hudson Company, a New York corporation having its principal place of business in New York county, for damages occasioned by the negligence of the Delaware and Hudson Company occurring in this State, is the judgment or debt represented thereby subject to attachment in the county of New York in an action brought in the Supreme Court of this State by the plaintiff, a Pennsylvania corporation, against Joseph Nahas and The Delaware and Hudson Company, as joint tort feasors to recover damages for an injury to plaintiff’s property in consequence of their negligence arising out of the occurrence for which damages were recovered in the action and in which the judgment attached was rendered? ’ ’ A similar question was certified on permitting the appeal of Edward Nahas.

      William D. Bosler for appellants.

      H. Barton Farr and Frederic Cunningham, Jr., for plaintiff, respondent.
   Orders affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Accounting of Guaranty Trust Company of New York of a Trust Fund under the Will of George P. Pollen, Deceased. Fritz L. Schmidt, Jr., Appellant; Elise M. Jewett et al., Respondents.
    (Argued March 29, 1927;
    decided May 17, 1927.)

      Will — trust —• direction that on death of life beneficiary remainder go to her “ legal issue ”■— distribution decreed equally to surviving descendants. '

      Matter of Pollen, 218 App. Div. 716, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 22, 1926, which affirmed a decree of the New York County Surrogate’s Court on the accounting herein directing distribution of a trust fund erected under the will of George P. Pollen, deceased, by a clause reading as follows: “ To my daughter, Melinda, I also give the interest or income as it accrues on Two hundred thousand ($200,000) dollars, during her natural life. The said amount to be set apart in such good dividend paying stocks and bonds as may stand in my name at the time of my decease, and at the then market value of the same. And at her death I Will that the said amount of Two hundred thousand dollars go to her legal issue, in equal portions, after they severally reach the full age of twenty-one years.” The surrogate held that the decision in Schmidt v. Jewett (195 N. Y. 486) was conclusive as to the distribution of the trust fund and accordingly decreed that it be distributed equally to the surviving descendants of the fife beneficiary.

      Abraham K. Kaufman, Frederick E. Weinberg and David Scheinker for appellant.

      RalphL. Baldwin for Elise M. Jewett et al., respondents. Carroll B. Low for Walter C. Low, respondent.

      Charles J. McDermott and Henry W. Showers, respondents in person.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Edward Michelfelder, Respondent, against Arthur B. Van Alstyne et al., Appellants. State Industrial Board, Respondent.
    (Argued May 2, 1927;
    decided May 17, 1927.)

      Workmen’s compensation — master and servant — award to garage employee for disability arising from inhaling carbon monoxide gas.

      Matter of Michelfelder v. Van Alstyne, 217 App. Div. 810, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 7, 1926, unanimously gffirmirig an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, an employee in a garage, while in the course of his employment, inhaled carbon monoxide gas, from which, it was alleged, he developed bronchitis, resulting in disability for a period of about five months.

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

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

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


text:
    In the Matter of the Accounting of J. Watson Burrows, as Administrator of the Estate of Jay E. Crandall, Deceased. Carrie M. Clark, Appellant; Clara W. Crandall, Respondent.
    (Submitted May 3, 1927;
    decided May 17, 1927.)

      Appeal — order of Appellate Division reversing order of Surrogate’s Court permitting amendment of record — appeal to Court of Appeals dismissed.

      Matter of Crandall, 218 App. Div. 190, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 9, 1926, which reversed an order of the Chautauqua County Surrogate’s Court permitting the defendant to amend the record in this proceeding in that court, so as to raise the issue of the constitutionality of section 8 of the Domestic Relations Law.

      Elijah W. Holt and Arthur S. Tennant for appellant

      Elmer O. Brinkman for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Swift & Company, Appellant, v. Obcanska Zalozna V. Karline, Respondent.
    (Argued May 3, 1927;
    decided May 17, 1927.)

      Jurisdiction — attachment — State courts vnihout jurisdiction of action by foreign corporation doing business in this State against foreign corporation, not doing business here, to recover on cause not arising in nor concerning properly in this State.

      Swift & Co. v. Obcanska Zalozna V. Karline, 219 App. Div. 821, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 25, 1927, unanimously affirming an order of Special Term granting a motion to vacate a warrant of attachment on the ground of lack of jurisdiction. The action was to recover for money had and received. Plaintiff and defendant were both foreign corporations. It is conceded that the cause of action did not arise in this State, did not concern property here and that defendant was not doing business in this State. Plaintiff claimed that the fact that it had obtained permission to do business in this State and was doing business here gave the courts jurisdiction.
    The following questions were certified:
    “1. Has the court power to grant a warrant of attachment herein?
    “ 2. Has the court jurisdiction of the cause of action herein under section 47 of the General Corporation Law? ”

      David Paine and Chester Bordean for appellant.

      Otto C. Sommerich and Maxwell C. Katz for respondent.
   Order affirmed, with costs; questions certified answered in the negative; no opinion.

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


text:
    Grace H. Griffin, Respondent, v. William H. Griffin, Appellant. In the Matter of the Application of William H. Griffin.
    (Argued May 3, 1927;
    decided May 17, 1927.)

      Appeal — order of Appellate Division denying motion for restitution of moneys paid under erroneous judgment — appeal to Court of Appeals dismissed.

      Griffin v. Griffin, 219 App. Div. 813, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 6,1927, which denied a motion for an order directing restitution of moneys paid by defendant to plaintiff under compulsion of an erroneous judgment.

      John Alexander, William H. Griffin and William J. Cullen for appellant.

      Warren Leslie and Edgar A. Martin for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Cabdozo, Ch. J., Pound, Cbane, Andbews, Lehman, Kellogg and O’Bbien, JJ.


text:
    William H. Roberts, Respondent, v. Olga Petrova, Appellant.
    (Argued May 2, 1927;
    decided May 17, 1927.)

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

      Roberts v. Petrova, 219 App. Div. 772, appeal dismissed.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the ground that permission to appeal had not been granted.

      Melville H. Cane for motion.

      Nash Rochwood opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    D. & G. Girl Coat Co., Inc., Respondent, v. Laura Kafka et al., Defendants, and Mary Zabelicky et al., Appellants.
    (Submitted May 9, 1927;
    decided May 17, 1927.)

      Appeal — motion to dismiss appeal denied.

    Reported below, 218 App. Div. 607.
    Motion to dismiss an appeal from a judgment entered March 21, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying plaintiff’s motion to strike out the answer and for judgment on the pleadings and granted said motion.
    The motion was made upon the ground that an appeal did not lie to the Court of Appeals direct from the final judgment.

      Abraham M. Weinberg and Gerson C. Young for motion.

      Max Rackmore opposed.
   Motion denied, with ten dollars costs.


text:
    Percy P. Cowans et al., Respondents, v. Ticonderoga Pulp and Paper Company, Appellant.
    (Submitted May 9, 1927;
    decided May 17, 1927.)

      Appeal — discretionary ordei--motion to dismiss appeal without permission to Court of Appeals granted.

    Reported below, 219 App. Div. 120.
    Motion to dismiss so much of an appeal from a judgment entered February 3, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which affirmed an order of Special Term denying defendant’s motion to amend its answer and granted a motion by plaintiffs for judgment on the pleadings, as seeks to bring up for review that part of the order of the Appellate Division which affirms the order denying the motion to amend the answer.
    The motion was made upon the ground that the order so sought to be reviewed was an intermediate order and that permission to appeal had not been obtained.

      Thomas B. Cotter for motion.

      Frank B. Wickes opposed.
   Motion granted to the extent of striking from notice of appeal all reference to intermediate order on the ground that said order is discretionary.


text:
    Erwin Balduan, Appellant, v. Frank Contey, Respondent.
    (Submitted May 9, 1927;
    decided May 17, 1927.)

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

      Balduan v. Contey, 220 App. Div. 336, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 22, 1927, which reversed an order of Special Term denying a motion by defendant to vacate a judgment taken against him by default on the ground that the summons had never been served and granted said motion.
    The motion was made upon the ground that the order appealed from was not a final order and that permission to appeal had not been obtained.

      Louis W. Stotesbury for motion.

      Herman Hoffman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author: Per Curiam.

text:
    In the Matter of the Claim of Charlotte Bogold, Respondent, against Bogold Brothers, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued May 9, 1927;
    decided May 20, 1927.)

      Appeal — workmen’s compensation ■— order of Appellate Division reversing rescission of award and remitting claim, appealable to Court .of Appeals.

    An order of the Appellate Division reversing the rescission of an award under the Workmen’s Compensation Law and remitting the claim merely to reinstate the award may be regarded as a final order or an order for a new trial with stipulation for judgment absolute subject to review in this court where no further hearing is contemplated.

      Matter of Bogold v. Bogold Brothers, Inc., 218 App. Div. 676, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 6, 1927, which reversed a decision of the State Industrial Board rescinding an award made under the Workmen’s Compensation Law and remitted the claim.

      William E. Lyons, Barnett Cohen and Frank J. O’ Neill for appellants.

      Philip A. Sullivan for respondent.
   Per Curiam.

The Appellate Division has remitted the claim to the State Industrial Board merely to reinstate the award to respondent in accordance with the opinions of the Appellate Division. No further hearing is contemplated. Appellant on the argument stipulates for such award in case of affirmance. The order may be regarded as a final order or an order for anew trial with stipulation for judgment absolute and subject to review in this court.

The order should be affirmed, with costs.

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

Order affirmed, etc.


text:
    Nellie T. McAvoy, as Executrix of Francis S. McAvoy, Deceased, Appellant, v. Sidney C. Schramme et al., Respondents, Impleaded with Others.
    (Argued May 10, 1927;
    decided May 20, 1927.)

      Attorney and client — contract• — -services — provision for payment in cash inconsistent with alleged intent to make equitable assignment.

    A provision of a contract for services of an attorney that payment shall be in cash, though the property received by the client may be something else, is inconsistent with an intention to make an equitable assignment.

      McAvoy v. Schramme, 219 App. Div. 604, affirmed.
    Appeal from a judgment entered March 14, 1927, 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 for a dismissal of the complaint and granted said motion. The action was to establish and enforce an equitable lien. The complaint alleged that one of the defendants, respondents, being the owner of certain shares of stock of a land improvement corporation, employed plaintiff’s testator, an attorney, to arrange for realization thereof; that testator entered upon the performance of his obligations and rendered services in connection with the acquisition of land belonging to the corporation for public purposes, for which an award is about to be made and demanded judgment impressing a lien in favor of plaintiff upon said award and upon the shares of stock. The contract of employment read in part as follows: “ The said Francis S. McAvoy for his services is to receive in cash twenty-five per cent of whatever is realized by the said Sidney C. Schramme out of such holdings, whether the same be by way of sale, mortgage, hypothecation, exchange or in any other manner.”

      Charles L. Craig for appellant.

      Louis L. Archer and Elon S. Hobbs for respondents.
   Per Curiam.

The provision of the contract that payment to the attorney shall be made in cash, though the property received by the client may be something other than cash, is inconsistent with an intention to make an equitable assignment.

The judgment should be affirmed with costs.

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

Judgment affirmed, etc.


text:
    William Schall et al., Respondents, v. Byron R. Newton et al., Appellants.
    (Argued May 5, 1927;
    decided May 20, 1927.)

      Conversion — release by Collector of Port of imported goods without production of bills of lading.

      Schall v. Newton, 217 App. Div. 171, affirmed.
    Appeal from a judgment entered October 3, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a verdict directed by the court and directing judgment in favor of plaintiffs. The action is in conversion, brought by the holders of bills of lading for imported goods against Byron R. Newton in his individual capacity, and United States Fidelity and Guaranty Company, on the ground that defendant Newton while Collector of the Port of New York, took into his possession and disposed of said goods without plaintiffs’ consent and contrary to the law then in effect, and that the defendant company procured and participated in the conversion by executing to the defendant Newton a bond indemnifying him for entering and releasing the goods without production of the bills of lading.

      William A. De Groot, United States District Attorney (Herbert H. Kellogg of counsel), for Byron R. Newton, appellant.

      William J. McArthur for United States Fidelity and Guaranty Company, appellant.

      Merle I. St. John, Charles Paul Brown and Hiram Thomas for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Julius Gibbs, Appellant.
    (Argued May 6, 1927;
    decided May 20, 1927.)

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

    Appeal from a judgment of the Supreme Court, rendered February 3, 1927, at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of murder in the first degree.

      Edwin Gaw Flanigen and Edward A. Gilroy for appellant.

      Guy B. Moore, District Attorney (Walter F. Hofheins of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Edward L. Larkin, Appellant, v. Pennsylvania Railroad Company et al., Respondents.
    (Argued May 6, 1927;
    decided May 20, 1927.)

      Conversion — literary property — action to recover for alleged appropriation by defendants of plans prepared by plaintiff for the improvement of their property.

      Larkin v. Penn. R. R. Co., 216 App. Div. 832, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 10, 1926, unanimously affirming a ju igment in favor of defendants entered upon an order of Special Term granting a motion by defendants for judgment on the pleadings. The complaint alleged that the defendants respectively were interested in or owned the land upon which the Pennsylvania Hotel now stands; that beneath part of the land are the tunnels and tracks of railroads; that the defendants desired to erect thereon a. hotel structure; that they informed the plaintiff that their engineer had said this would be impracticable to a height of more than twelve stories; that the plaintiff was interested with associates in securing the contract to construct this hotel; that he prepared plans for the construction of a twenty-five-story hotel building and plans for- the construction of a thirty-one-story hotel building; that he delivered these plans to the defendants in furtherance of the negotiations by which he and his associates hoped to secure the contract, and that the defendants used his foundation plans and did not award him the contract. Damages were demanded for the alleged appropriation of plaintiff’s literary property, by which he claimed the defendants were unjustly enriched.

      Henry A. Uterhart, Joseph Gazzam, John T. Dooling and Alfred M. Schaffer for appellant.

      Martin Conboy, David Asch, Philip W. Boardman and Harold G. Wentworth for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alex Burkes, Appellant, v. William Lieberman, Respondent.
    (Argued May 6, 1927;
    decided May 20, 1927.)

      Negligence — motor vehicles — ■pedestrian injured by stone struck and thrown by passing automobile — insufficiency of proof of negligence on part of driver.

      Burkes v. Lieberman, 218 App. Div. 600, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 17, 1926, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that while plaintiff was walking along a country road a passing automobile struck a pile of stones throwing one of them into the air in such manner that it struck plaintiff, causing the injuries complained of. The Appellate Division held that the testimony did not show negligence on the part of the driver.

      William B. Shelton and David Batt for appellant.

      George F. Hickey, Henry L. Ughetta and William Butler for respondent.
   Order affirmed and judgment absolute ordered against appellant on. the stipulation, with costs in all courts;

no opinion.

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


text:
    Rose M. Palmer et al., Appellants, v. Rotary Realty Co., Inc., et al., Respondents.
    (Submitted May 16, 1927;
    decided May 20, 1927.)

      Appeal — intermediate orders — motion to dismiss appeals without permission to Court of Appeals granted.

      Palmer v. Rotary Realty Co., Inc., 219 App. Div. 725, 834, 220 App. Div. 727> appeals dismissed.
    Motion to dismiss appeals from four orders of the Appellate Division of the Supreme Court in the second judicial department: (1) a motion for reargument entered January 7, 1927, (2) a motion for final judgment entered January 17,1927, (3) a motion to compel entry and service of judgment and orders by respondent, entered March 18, 1927, and (4) a motion to resettle the order denying the motion for final judgment, entered April 8, 1927.
    The motion was made upon the grounds that the orders appealed from were not final orders and that permission to appeal had not been obtained.

      Seymour Mork for motion.

      Bose M. Palmer opposed.
   Motion granted and appeals dismissed, with one bill of costs and ten dollars costs of motion. -


text:
    The People of the State of New York ex rel. Peter A. Finley, Respondent, v. Thomas H. Gorman, Appellant.
    (Argued May 3, 1927;
    decided May 31, 1927.)

      Municipal corporations — Saratoga Springs (city of) — city council — deputy commissioner of public safety does not succeed to duties of resigned commissioner as member of city council.

      People ex rel. Finley v. Gorman, 219 App. Div. 406, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 24, 1927, which affirmed an order of Special Term denying a motion by defendant for a- dismissal of the complaint. The action was to enjoin the defendant from voting as a member of the city council of the city of Saratoga Springs. The commissioner of public safety, who was by law a member of the council, having resigned, defendant, as his deputy, claimed the right to sit and vote in the council in his place and stead.
    The following questions were certified:

      “ 1. Does plaintiff’s complaint herein state a cause of action?
    “ 2. Has the defendant, Gorman, a right to vote in the City Council of the City of Saratoga Springs until such time as a new Commissioner of Public Safety be chosen? ”

      Spencer B. Eddy for appellant.

      Benjamin K. Walbridge for respondent.
   Order affirmed, with costs; first question certified answered in the affirmative, second question in the negative. Held, that under the wording of the charter of the city of Saratoga Springs, the deputy of the commissioner of public safety does not succeed upon the resignation of a commissioner to the duties of such commissioner as a member of the council.

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


text:
    The People of the State of New York ex rel. Empire City Subway Company (Limited), Respondent, v. State Tax Commission, Appellant. The City of New York, Appellant. (Two proceedings.)
    (Argued May 3, 1927;
    decided May 31, 1927.)

      Tax — franchise tax — valuation of special franchises.

      People ex rel. Empire City Subway Co. v. State Tax Comm. (2 cases), 218 App. Div. 819, affirmed.
    Appeal, in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 3, 1926, which affirmed an order of Special Term reducing, on certiorari, assessments for taxation of special franchises, levied against the relator. Its property consisted almost entirely of electrical subways and conduits maintained and operated under the streets of the boroughs of Manhattan and The Bronx. The State Tax Commission in its return to the writs certified that “ the valuation of the special franchise was made in gross and as a whole after considering separately, as elements in arriving at said valuation, both the intangible right or privilege to occupy and use the streets, highways and public places for the business purposes for which the special franchise in question was granted, and the value of the tangible property located therein and used in connection therewith.” The Special Term held that the “ net earnings rule ” was the method best adapted to arrive at a correct valuation.

      Albert Oltinger, Attorney-General (Robert S. Conklin of counsel), for State Tax Commission, appellant.

      George P. Nicholson, Corporation Counsel (William PL. King and Joseph A. Dodin of counsel), for city of New York, appellant.

      Edward W. Beattie, James F. McLvor and Charles T. Russell for respondent.
   Order in each proceeding affirmed, with costs; no opinion.

Concur: Cardozo, Oh. J., Pound, Crane, Andrews, Lehman, Kellogg and O'Brien, JJ.


text:
    Laura H. Lelo, Respondent, v. Morard Realty Corporation et al., Appellants.
    (Submitted May 6, 1927;
    decided May 31, 1927.)

      Negligence ■ — nuisance — streets — injury of pedestrian from collapse of sideivalk into drainage cesspool illegally constructed and maintained thereunder.

      Lelo v. Morard Realty Corp., 218 App. Div. 841, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December' 10, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. While plaintiff was walking southerly along the west side of East Fourteenth street in the borough of Brooklyn the sidewalk collapsed beneath her and she received the injuries complained of. It was alleged that the accident was caused by the defective condition of a house drainage cesspool illegally constructed under the sidewalk by defendant Morard Realty Corporation and there maintained by defendant Selpro Realty Corporation, the present owner of the adjoining property.

      Andrew F. Van Thun, Jr., and Robert H. Woody for Morard Realty Corporation, appellant.

      Barnett Cohen, William E. Lyons and Frank J. 0’ Neill for Selpro Realty Corporation, appellant.

      George W. Matheson, George C. Wildermuth and Beatrix Kimmelman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Crane, Andrews, Kellogg and O’Brien, JJ.; Cardozo, Cb. J., and Lehman, J., vote to affirm as to defendant Morard Realty Corporation and for reversal and new trial as to defendant Selpro Realty Corporation.


text:
    Michael J. Leahy, Appellant, v. Interborough Rapid Transit Company, Respondent.
    (Argued May 9, 1927;
    decided May 31, 1927.)

      Contract — conversion — action for work done and. materials furnished in performance of contract and for conversion of material used to complete work.

      Leahy v. Interborough Rapid, Transit Co., 217 App. Div. 754, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 9, 1926, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was brought to recover for work done and materials furnished by the plaintiff in partial performance of a contract for the construction of a section of an elevated railroad consisting of a steel superstructure erected on concrete foundations or piers constituting a portion of the Webster Avenue line, located in the borough of The Bronx, New York city, and for the conversion by the defendant of steel belonging to the plaintiff, used by defendant in completing the work.

      Abram J. Bose, Alfred C. Petté and Asa B. Kellogg for appellant.

      J. Osgood Nichols, Henry J. Smith, Frederick G. Watson and James L. Quackenbush for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel Blank, Appellant, v. Wallace L. Conner et al., Respondents.
    (Argued May 10, 1927;
    decided May 31, 1927.)

      Subrogation — loss by employer from dishonesty of employee covered by indemnity bond — repayment by employee of amount with money obtained by fraud from plaintiff— action for subrogation to rights of employer under bond.

      Blank v. Conner, 219 App. Div. 789, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 9, 1927, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The complaint alleged that the defendant Manufacturers Trust Company held an indemnity bond of the defendant United States Fidelity and Guaranty Company, indemnifying it against any loss by reason of any dishonesty or criminal act of any of its officers or employees; that the defendant Conner, one of the officers of the Manufacturers Trust Company covered by the said indemnity bond, procured it to cash for him two checks drawn on bis account in another bank; that Conner did not have sufficient funds in the bank to meet the checks and the trust company thereby sustained a loss of $6,050, which it could have recovered on the indemnity bond of United States Fidelity and Guaranty Company; that subsequently Conner obtained $6,000 from the plaintiff by fraud and fraudulent representations, which he used to make good the loss alleged to have been sustained by the Manufacturers Trust Company and that by reason of the premises plaintiff is entitled to be subrogated to the rights of the Manufacturers Trust Company on the indemnity bond of the United States Fidelity and Guaranty Company to recover from the latter the sum which it lost.

      Arthur L. Burchell for appellant.

      William J. McArthur for United States Fidelity and Guaranty Company, respondent.

      Murray L. Jacobs for Manufacturers Trust Company, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Edward Westcoatt, Appellant.
    (Argued May 10, 1927;
    decided May 31, 1927.)

      Crimes — receiving stolen property — judgment of conviction affirmed.

      People v. Westcoatt, 219 App. Div. 807, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1927, which affirmed a judgment of the Court of General Sessions of the county of New York, rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property in the first degree.

      Clark L. Jor dan for appellant.

      Joab H. Banton, District Attorney (Edwin B. McGuire of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of Frank P. Keenan, Appellant, against Frederick S. Greene, State Superintendent of Public Works, et al., Respondents.
    (Submitted May 13, 1927;
    decided May 31, 1927.)

      Civil service — veterans — abolishment of position held by veteran of Spanish-American War — mandamus to compel reinstatement properly denied.

      Matter of Keenan v. Greene, 216 App. Div. 775, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 12, 1926, which unanimously affirmed an order of Special Term denying a motion for an order of mandamus to compel reinstatement of the petitioner in office in the Department of Public Works. The petitioner, a veteran of the Spanish-American War, held the position of Superintendent of Terminals in that department, a position in the competitive class of the civil service, for which he had passed a competitive-examination, and been duly certified for appointment. Upon the general reorganization of the Department of Public Works his position was abolished and the duties thereof transferred to others. Petitioner contended that his removal from office and failure to transfer him to such branch of the sendee as he was fitted to fill was illegal.

      Rosalie Ulrich and Milton M. Eisenberg for appellant.

      Albert Ottinger, Attorney-General (Patrick H. Clune of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of John H. White, Deceased. John W. White et al., as Executors, Appellants; Melissa B. White, Respondent.
    (Argued May 12, 1927;
    decided May 31, 1927.)

      Will — dower — construction of provision of will giving to widow a sum equal to her dower right in real and personal estate.

      Matter of White, 219 App. Div. 502, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 10, 1927, which reversed a decree of the Schenectady County Surrogate’s Court construing so much of the will of John H. White, deceased, as1 provided: “ I give and bequeath to my wife, Melissa Bame White, a sum equal to her dower right, in both my real and personal estate.” The surrogate held that the widow, on her husband’s death, became entitled to her dower in his real estate and in addition thereto a sum equal to the cash value of such dower. The Appellate Division held that the widow was entitled to the cash value of her dower in the real estate and in addition to one-third of the personalty.

      Do.niel Naylon for appellants.

      Walter F. Wellman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Harry L. Hoffman, Respondent.
    (Argued May 12, 1927;
    decided May 31, 1927.)

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

      People v. Hoffman, 219 App. Div. 334, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 25, 1927, which reversed a judgment of the Richmond County Court rendered upon a verdict convicting defendant of the crime of murder in the second degree and granted a new trial.

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

      Leonard A. Snitkin and Leo H. Klugherz for respondent.
   Judgment affirmed; no opinion.

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


text:
    In the Matter of the Estate of Anastasia Fitzgerald. Joseph Fitzgerald, Appellant; Anna L. Reed, Respondent.
    (Argued May 13, 1927;
    decided May 31, 1927.)

      Decedent's estate — petition for side of real property to pay legacies — decree directing sale reoersed where annuity prodded for in will is made a lien upon said properly.

      Matter of Fitzgerald, 217 App. Div. 188, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 29, 1926, which reversed a decree of the Erie County Surrogate’s Court directing the sale of certain real property belonging to the estate of Anastasia Fitzgerald, deceased, for the purpose of paying legacies and dismissed the petition. The will directed payment of a certain annuity which was made “ a hen upon any and all real estate which I own or possess ” except certain property devised. The Appellate Division held that this forbade the sale directed by the surrogate.

      Irving W. Cole and Edward E. Lewis for appellant.

      Clayton M. Smith for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Mildred E. Kelly, as Administratrix of the Estate of Edgar J. Kelly, Deceased, Respondent, v. Fulmer-Agne Realty Company et al., Appellants.
    (Argued May 13, 1927;
    decided May 31, 1927.)

      Negligence — fire escapes — death of roofer from fall of portion of fire escape he was using to reach roof of building for purpose of making repairs.

      Kelly v. Fulmer-Agne Realty Co., 219 App. Div. 760, affirmed. '
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 10, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Intestate, an employee of a roofing contractor, was sent to a building owned by defendant Fulmer-Agne Realty Company and leased by defendant Waldorf System, Inc., to make repairs to the roof, at the request of the manager of defendant Waldorf System, Inc. There was evidence that to reach the roof to make repairs a fire escape on the side of the building was customarily used. On the day of the accident while intestate was upon the fire escape attempting to lower the drop ladder at the lower end thereof a chain supporting the ladder broke and plaintiff was precipitated to the sidewalk causing injuries resulting in his death.

      G. E. Pritchard for Fulmer-Agne Realty Company, appellant.

      William E. Fitzsimmons for Waldorf System, Inc., appellant.

      Gay H. Brown for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel Lander, Respondent, v. Isaac Wald, Appellant.
    (Submitted May 13, 1927;
    decided May 31, 1927.)

      Pleading — slander — words actionable per se — complaint alleging defendant charged plaintiff with being a “ pimp ” states a cause of action for slander.

      Lander v. Wald, 218 Apg. Div. 514, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1926, which reversed an order of Special Term granting a motion by defendant for a dismissal of the complaint and denied said motion. The action was for slander. The complaint alleged that the defendant in the presence of third persons “ maliciously spoke of and concerning the plaintiff, the false and defamatory words as follows: c You have no business to work. You are a pimp,’ ” and “ The pimp is making $100 a week and he goes home so early.” The Appellate Division held that the words alleged to have been spoken charge a crime and are actionable per se.

    The following question was certified:
    “ Does the complaint state a cause of action ? ”

      Maurice Deiches and Elwood G. Feldstein for appellant.

      Walter L. Bunnell for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Peter Heslin, Appellant.
    (Argued May 16, 1927;
    decided May 31, 1927.)

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

    Appeal from a judgment of the Court of General Sessions of the county' of New York, rendered November 4, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Alexander I. Rorke, James M. Vincent and Frederick L. Kane for appellant.

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

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