text:
    In the Matter of the Petition of Robert F. Raymond, Appellant, for Direction to Andrew A. Smith et al., as Administrators c. t. a. of the Estate of Philip Smith, Deceased, to Pay Certain Funds Out of Said Estate. James P. Smith et al., Respondents.

      Appeal ■ — • intermediate order — appeal without permission to Court of Appeals dismissed.

      Matter of Raymond, 214 App. Div. 622, appeal dismissed.
    (Argued February 23, 1926;
    decided March 2, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1925, which reversed a decree of the New York County Surrogate’s Court granting a petition for the establishment of an attorney’s lien for services and remitting the proceeding to the surrogate for further action.
    The motion was made upon the grounds that the order attempted to be appealed from was not a final order and that no permission to appeal had been granted.

      William A. Kirk for motion.

      Harold II. Corbin opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


source: Caselaw Access Project

license: Public Domain

text:
    Bank of London and South America, Ltd., Appellant, v. Garlock Packing Company, Respondent. Ultramares Corporation, Appellant v. Garlock Packing Company, Respondent.

      Appeal — ■ motion to dismiss denied.

    Reported below, 215 App. Div. 674.
    (Submitted February 23, 1926;
    decided March 2, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1925, which affirmed an order of Special Term granting a motion for interpleader.

      The motion was made upon the grounds that the order appealed from was not a final order and was discretionary. Franklin G. Manley for motion.

      Herbert R. Limburg opposed.
   Motion denied without prejudice to consideration on argument of appeal whether order is appealable.


text:
    Leemor Realty Corporation et al., Respondents, v. Nathaniel Tonkin et al., Appellants, and Carlton-Summerfield Estates, Inc., Respondent.
    (Submitted February 2, 1926;
    decided March 2, 1926.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 546.)


text:
    The People of the State of New York, Respondent, v. Peter J. Candeau, Appellant.

      Appeal — failure to file record and briefs.

    Reported below, 215 App. Div. 671.
    (Submitted February 23, 1926;
    decided March 2, 1926.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1925, which affirmed a judgment of the Court of General Sessions in the county of New York rendered upon a verdict convicting the defendant of the crime of forgery in the second degree.
    The motion was made upon the grounds that the printed case and points had not been filed and the time for such filing had elapsed.

      Joab H. Banton, District Attorney (Matthew F. Mahan of counsel) for motion.

      Leonard A. Snitkin opposed.
   Motion denied on condition that appellant file and serve printed record on appeal within twenty days and within ten days thereafter serve briefs; otherwise said motion granted.


text:
    In the Matter of the Accounting of William L. Visscher, as Executor of the Will of Thomas H. Ham, Deceased. May W. Ham, Appellant; Fred C. Ham, Respondent.

      Will — residuary clause directing conversion of real and personal property into money and division among charitable institutions — gift invalid as to amount in excess of one-half of estate —• heir at law entitled to pi-oceeds of real property unnecessarily sold and as to. which testator died intestate in preference to widow.

      Matter of Ham, 213 App. Div. 487, affirmed.
    (Argued February 23, 1926;
    decided March 4, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1925, which modified and affirmed as modified a decree of the Albany County Surrogate’s Court judicially settling the account of William L. Visscher as executor and directing distribution of the estate of Thomas H. Ham, deceased. By the residuary clause of his will testator directed his executor to convert the residue of his real and personal estate into cash and divide it among certain charitable corporations. More than one-half of the estate having been given to charity and testator leaving a widow, the amount bequeathed to them was valid only to the extent of one-half of the estate. After paying all debts, lawful legacies and expenses of administration there remained for distribution $21,214.33 as the proceeds of personal property and $18,000 the proceeds of real estate as to which testator died intestate. The controversy was between the testator’s widow and his brother and heir at law and related solely to the proceeds of the real estate. The former contended that under the residuary clause of the will there was a conversion of the realty into personalty and that she was, therefore, entitled to one-half of the proceeds of the realty. The latter contended that the personal estate being more than sufficient to pay all expenses of administration and all valid bequests there was no necessity for the conversion of the real property and that the same descended to him upon the death of the testator and that the proceeds thereof unnecessarily sold belong to him. The Appellate Division upheld the latter contention.

      James J. Fatten, Frederick S. Harris and Samuel H. King for appellant.

      Newton B. Van Derzee for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Alexander A. Mayper, Appellant, v. Kenneth D. Harlan, Respondent.

      Attorney and client — husband and wife — attorney may not recover from husband for services in procuring absolute divorce for wife.

      Mayper v. Harlan, 215 App. Div. 767, affirmed.
    (Argued February 23, 1926;
    decided March 4, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1925, which reversed an order of the Appellate Term affirming an order of the City Court of the city of New York denying a motion for a dismissal of the complaint and granted said motion. The action was brought by an attorney to recover from defendant the value of’ services rendered his former wife in obtaining for her an absolute divorce from defendant.

      Alexander A. Mayper and Jerome M. Hirsch for appellant.

      David 0. Decker and J. Robert Rubin for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Aktiebolaget Malareprovinsernas Bank, Respondent, v. American Merchant Marine Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Federal Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Ætna Insurance Company of Hartford, Connecticut, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. National Fire and Marine Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. The Globe and Rutgers Fire Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Stuyvesant Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. The Insurance Company of the State of Pennsylvania, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Glens Falls Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. The Hanover Fire Insurance Company, Appellant.
    (Submitted March 1, 1926;
    decided March 4, 1926.)
   Motions for reargument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 197, 551.)


text:
    Selmor Estates Corporation Respondent, v. Land Map Realty Corporation et al., Appellants.

      Appeal — failure to file undertaking and prosecute appeal.

      Selmor Estates Corp. v. Land Map Realty Corp., 208 App. Div. 846, appeal dismissed.
    (Submitted March 1, 1926;
    decided March 4, 1926.)
    Motion to dismiss an appeal from an order of the-Appellate Division of the Supreme Court in the first judicia ■ department, entered April 25, 1924, which dismissed an appeal by the defendants from a judgment entered against them by default.
    The motion was made upon the grounds that no undertaking on appeal has ever been served and on the further grounds that appellants have never taken any steps to prosecute the said appeal.

      Bernard H. King for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Wellesley Richards et al., Respondents, v. Edward W. Browning, Appellant.
    1 ppeal — motion to dismiss appeal granted where case originated in City Court and permission to appeal had not been- obtained.

      Richards v. Browning, 214 App. Div. 665, appeal dismissed.
    (Submitted March 1, 1926;
    decided March 4, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1925, which reversed a determination of the Appellate Term reversing a judgment of the City Court of the city of New York in favor of plaintiffs and reinstated said City Court judgment.
    The motion was made upon the grounds that this court had no jurisdiction to entertain an appeal originating in a court of inferior jurisdiction, permission to appeal not having been obtained.

      Abraham H. Sarasohn for motion.

      Charles G. F. Wahle opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York ex rel. Arthur F. Broderick, Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax — capital employed in general stock brokerage business and in ownership of Stock Exchange seat not in competition with business of National banks — assessment properly vacated.

      People ex rel. Broderick v. Goldfogle, 213 App. Div. 677, affirmed.
    (Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial depart-’ ment, entered July 6, 1925, which unanimously affirmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by him and alleged to have been used in competition with the business of National banks. The assessment against relator for the year 1923 was held invalid on the ground that his moneyed capital, which was employed in a general stock brokerage business, and in his ownership of a Stock Exchange seat for the purposes of such business, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellants.

      John W. Davis and Michael F. Dee for respondent.

      Louis J. Vorhaus for Louis M. Josephthal et al., amici curice.

      Knowlton Durham for Robert L. Bigelow et al., amici curice.

      John Ewen for Charles A. Frank et al., amici curice.

      Edward S. Greenbaum for Sidney S. Prince et al., amici curice.

   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

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


text:
    The People of the State of New York ex rel. Charles W. Bonner, Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax — capital employed in general stock brokerage business not in competition with National banks — assessment properly vacated.

      People ex rel. Bonner v. Goldfogle, 213 App. Div. 715, affirmed.
    (Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1925, which unanimously affirmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by him and alleged to have been used in competition with the business of National banks. The assessment against the relator for the year 1923 was held invalid on the ground that his moneyed capital, which was employed in a general stock brokerage business, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellants.

      John W. Davis, Martin Saxe and Charles R. McSparren for respondent.
   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

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


text:
    The People of the State of New York ex rel. Temple T. Berdan, Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax —• capital employed in stock brokerage business, principally in “ odd lot ” and “ specialist ” branches thereof, not in competition with business of National banks — assessment properly vacated.

      People ex rel. Berdan v. Goldfogle, 213 App. Div. 702, affirmed.
    (Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1925, which unanimously afirrmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by him and alleged to have been used in competition with the business of National banks. The assessment against the relator for the year 1923 was held invalid on the ground that his moneyed capital, which was employed in a stock brokerage business, principally engaged in the “ odd lot ” and “ specialist ” branches thereof, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellants.

      John W. Davis, Franklin B. Lord and Sherman Baldwin for respondent.
   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

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


text:
    The People of the State of New York ex rel. Peabody, Houghteling & Co., Inc., Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax — capital employed in purchasing corporate bonds secured by mortgages on real estate and selling same at a profit not in competition with business of National banks — assessment properly vacated.

      People ex rel. Peabody, Houghteling & Co., Inc., v. Goldfogle, 213 App. Div. 710, affirmed.
    (Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1925, which unanimously affirmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by it and alleged to have been used in competition with the business of National banks. The assessment against the relator for the year 1923 was held invalid on the ground that its moneyed capital, which was employed in the business of purchasing corporate bonds secured by mortgages on real estate and selling such bonds at a profit to its customers for cash, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellants.

      John W. Davis, Carlyle M. Keyes and Guernsey Price for respondent.
   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

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


text:
    The People of the State of New York ex rel. James Talcott, Inc., Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax — capital employed in business of factor and commission merchant not in competition with business of National banks — assessment properly vacated.

      People ex rel. Talcott, Inc., v. Goldfogle, 213 App. Div. 719, affirmed.
    Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1925, which unanimously affirmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by it and alleged to have been used in competition with the business of National banks. The assessment against the relator for the year 1923 was held invalid on the ground that its moneyed capital, which was employed in the business of factor and commission merchant, selling and financing for textile mills and agents, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William PL. King and Eugene Fay of counsel), for appellants.

      John W. Davis, George W. Schurman, Arthur C. Bounds, Jacob C. Schurman, Jr., and Bertram F. Willcox for respondent.
   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

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


text:
    The People of the State of New York ex rel. Bankers Commercial Security Company, Inc., Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax — capital employed in business of dealing in installment paper not in competition with business of National banks — assessment properly vacated.

      People ex rel. Bankers Com. Security Co., Inc., v. Goldfogle, 213 App. Div. 716, affirmed.
    (Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1925, which unanimously affirmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by it and alleged to have been used in competition with the business of National banks. The assessment against the relator for the year 1923 was held invalid on .the ground that its moneyed capital, which was employed in the business of dealing in installment paper, which comprised contracts of conditional sale, leases, mortgages or notes all evidencing the sale of merchandise on the installment or deferred payment plan, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellants.

      John W. Davis, Henry M. Powell, Reginald F. Isaacs and Walter A. Hall for respondent.
   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

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


text:
    The People of the State of New York ex rel. J. Philip Benkard, Respondent, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

      Tax — moneyed capital tax — capital employed in general stock brokerage business and in ownership of seats in Cotton Exchange and Board of Trade not in competition with business of National banks — assessment properly vacated.

      People ex rel. Benkard v. Goldfogle, 213 App. Div. 713, affirmed.
    (Argued December 14, 1925;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1925, which unanimously affirmed an order of Special Term vacating and canceling an assessment levied against relator on the value of moneyed capital owned or held by him and alleged to have been used in competition with the business of National banks. The assessment against the relator for the year 1923 was held invalid on the ground that his moneyed capital, which was employed in a stock brokerage business, engaged in buying and selling stocks, bonds and commodities for its customers and in seats in the New York Cotton Exchange and in the Chicago Board of Trade, was not in competition with the business of National banks.

      George P. Nicholson, Corporation Counsel (William H. King and Eugene Fay of counsel), for appellants.

      John W. Davis and William F. Unger for respondent.
   Order affirmed, with costs, on authority of People ex rel. Pratt v. Goldfogle (242 N. Y. 277).

Concur: His cock, Ch. J., Cardozo, Poun-d, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    John S. Kedrovsky, as Delegate of the Holy Synod and Archbishop and Consistory of the Russian Orthodox Greek Catholic Church, Respondent, v. Platon Rojdesvensky et al., Appellants.

      Religious associations — action to determine right of occupancy of church property.

      Kedrovsky v. Rojdesvensky, 214 App. Div. 483, affirmed.
    (Argued January 20, 1926;
    decided March 30, 1926.)
    Appeal from a judgment, entered December 4, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was brought to prevent the defendants from occupying the Cathedral of St. Nicholas in New York, because it was alleged that the defendants were not the Archbishop and Dean of this Russian Orthodox Greek Catholic Churchy as they asserted, and were in their occupancy diverting the property of the church from the trust to which it was subject, to wit, the occupancy by the accredited Archbishop of the North American Diocese of the Russian Orthodox Church and the Dean of the Cathedral.

      Thomas H. Mahony, George Zabriskie, George Gordon Battle and Charles J. Katzenstein for appellants.

      Ralph M. Frink for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    United States Trust Company of New York, as Ancillary Administrator with the Will Annexed of Frederick Wesche, Deceased, Respondent, v. Ernest T. Greiner, Respondent, and A. B. Leach & Co., Inc., Appellant, Impleaded with Another.

      Practice — reference — complaint alleging that defendant had received funds and securities of plaintiff with notice that they were delivered under breach of trust and demanding accounting ■— order sending issues to referee proper.

      United States Trust Co. v. Leach & Co., Inc., 214 App. Div. 718, affirmed.
    (Argued February 23, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 9, 1925, which affirmed an order of Special Term sending the issues between the plaintiff and defendant, appellant, to a referee to hear and determine. The action was originally brought against defendant Greiner for an accounting as to certain funds and securities. Thereafter plaintiff obtained an order bringing in appellant as an additional defendant and permitting service of a supplemental complaint which alleged that it had received certain of the plaintiff’s funds and securities with notice that Greiner was violating his trust in delivering them and demanding an accounting as to said funds and securities. The following question was certified: “ Does the record herein present a proper case for the granting of a motion for a reference of the issues between the plaintiff and the defendant, A. B. Leach & Co., Inc., raised by the supplemental complaint and the amended answer? ”

      Karl T. 'Frederick, Henry M. Earle and John Schubert for appellant.

      Selden Bacon for plaintiff, respondent.

      Isaac N. Jacobson for defendant, respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Claim of Mary S. Hill against Morrell Vrooman et al., Respondents. State Industrial Board, Appellant.

      Workmen’s compensation — husband and wife — woman who with husband living lives wilh another man as his acknowledged wife for a number of years and continues such relationship after death of husband without further affirmative. act or declaration, not entitled to compensation as widow upon his death through accident.

      Hill v. Yrooman, 215 App. Div. 847, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 8, 1926, reversing an award of the State Industrial Board, made under the Workmen’s Compensation Law, and dismissing the claim. George A. Hill was tilled by an accident arising out of and in the course of his employment. Claimant, claiming to be his common-law widow, made claim for compensation. It appeared that they had lived together for a period of twenty-three years in an acknowledged relation of husband and wife. They publicly declared themselves as such, she assuming his name. In the meantime claimant had a husband living; she and decedent had full knowledge of all the facts and also of the fact that they were legally incompetent to enter into a contract of marriage, common law or otherwise. After the death of the husband they continued to live under the same conditions and relations without further affirmative act or declaration or any ceremonial marriage. The Appellate Division held that claimant was not the widow of the deceased employee.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for appellant.

      Clarence B. Tippett for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    In the Matter of the Application of Arthur H. Marks, Respondent, for the Appointment of an Arbitrator. Lydia L. Dornblaser, Appellant.

      Appeal — order of Appellate Division reversing order which granted motion to vacate ex parte order appointing arbitrator and denying motion — appeal to Court of Appeals dismissed.

      Matter of Maries, 215 App. Div. 771,- appeal dismissed.
    (Argued February 23, 1926;
    decided March 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1925, which reversed an order of Special Term granting a motion to vacate an ex parte order appointing an arbitrator under a contract between the appellant and the respondent, who were formerly husband and wife, and provided that if the respondent claimed a violation of it, he should give written notice of such claim to the Bankers Trust Company, specifying the alleged violation, nominating an arbitrator to determine his claim, and requiring the appellant to nominate an arbitrator within thirty days, failing which “ the Supreme Court of the State of New York shall nominate and appoint an arbitrator for her pursuant to section 4, chapter 275 of the Laws of 1920 of the State of New York.”

      Harold H. Corbin and Max D. Steuer for appellant.

      Frederic C. Scofield and Herbert C. Smyth for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Margaret McPadden, Respondent, against St. George’s Church et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — cook employed by church which had insured its employees entitled to compensation for injury from fall on kitchen floor.

      Matter of McPadden v. St. George’s Church, 214 App. Div. 829, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 1, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, while employed as cook by a religious corporation, tripped and fell on the kitchen floor receiving injuries for which compensation has been awarded, the employer having elected to insure its employees. Objection to the award was made upon the ground that claimant was employed as a domestic servant and, therefore, was not covered by the Workmen’s Compensation Law.

      Jeremiah F. Connor and William Butler for appellants.

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

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


text:
    In the Matter of the Claim of Etta Gibbs, Respondent, against R. H. Macy & Co., Inc., et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — store detective injured on way home after attending court in the course of her employment entitled to compensation.

      Gibbs v. Macy & Co., Inc., 214 App. Div. 335, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    • Appeal, by permission, from an order of the-Appellate Division of the Supreme Court in the third judicial department, entered November 10, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant was employed as a store detective. She left her home Sunday morning and went to a Magistrate’s Court where she had a shoplifting case. After the case was disposed of she left the court and on her way home was struck by a motorcycle and injured. It was contended that the injuries did not arise out of and in the course of claimant’s employment.

      Jeremiah F. Connor and William Butler for appellants.

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

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


text:
    In the Matter of the Claim of Pauline S. Becker et al., Respondents, against August Schul et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — farm laborer killed while operating farm machinery — dependents entitled to compensation where master had taken out insurance.

      Becker v. Schul, 214 App. Div. 743, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 16, 1925, unanimously affirming an award of- the State Industrial Board made under the Workmen’s Compensation Law. The claim was for the death of a farm laborer who was killed in the course of his employment while operating farm machinery. His employer had taken out a policy of insurance covering all persons operating farm machinery. It was contended that deceased being employed as a farm laborer his dependents were not entitled to an award.

      Edward E. Franchot for appellants.

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

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


text:
    In the Matter of the Application of The Brooklyn Edison Company, Inc., Respondent, for a Peremptory Order of Mandamus against Charles L. Craig, Comptroller of the City of New York, et al., Appellants.

      Tax — mandamus ■— corporations — New York city —■ mandamus granted to compel credit against special franchise tax of payment made in accordance with terms of franchise.

      Matter of Brooklyn Edison Co., Inc., v. Craig, 214 App. Div. 801, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 26, 1925, which unanimously affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel defendants to credit upon the tax rolls of the city of New York against taxes on relator’s special franchise for the year 1923 a payment made July 24, 1922, as required by the terms of its franchise.

      George P. Nicholson, Corporation Counsel (William H.

      King, Eugene Fay and Joseph A. Dodin of counsel), for appellants.

      Frank C. Laughlin, George H. Olney and Charles D. Miller for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Loretta Caruthers, Respondent, v. Bankers Trust Company, as Executor of John H. Flagler, Deceased, Appellant.

      Limitation of actions — practice —■ discontinuance, on motion of plaintiff, without prejudice, of action on claim against decedent’s estate —• right to commence new action within year.

      Caruthers v. Bankers Trust Co., 215 App. Div. 694, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 30, 1925, which reversed an order of Special Term granting a motion by defendant for judgment upon the grounds that the cause of action alleged in the complaint did not accrue within the time limited by law for the commencement of the action and that there was an existing final judgment or decree of a court of competent jurisdiction rendered on the merits dismissing the same cause of action between the same parties. The action was originally brought within three months after rejection of a claim against decedent’s estate and upon coming on for trial a motion of discontinuance made by plaintiff was granted, it being ordered that plaintiff upon payment of costs might “ start her action over again without prejudice.” The following question was certified: “ Did the order of discontinuance of the former action entered at Supreme Court Trial Term New York county on the 19th day of June 1924, upon motion of the plaintiff in said action over the opposition of the defendant executor, the defendant executor having thereafter accepted the costs awarded upon such discontinuance, have the effect as matter of law, pursuant to Civil Practice Act, section 23, of giving to the plaintiff the right to commence a new action upon the same cause of action within one year after the entry of said order without regard to the limitations contained in Surrogate’s Court Act, section 211? ”

      Ralph Royall for appellant.

      Van Sinderen Lindsey for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    Earl B. Barnes, as Trustee in Bankruptcy of Thomas H. Cowley et al., Individually and as Copartners under the Firm Name of Thos. H. Cowley & Co., Appellant, v. William Schatzkin et al., Individually and as Copartners under the Firm Name of Schatzkin, Bernstein & Co., Respondents, Impleaded with Others. Earl B. Barnes, as Trustee in Bankruptcy of Thomas H. Cowley et al., Individually and as Copartners under the Firm Name of Thos. H. Cowley & Co., Appellant, v. Lawrence J. Hirsch et al., Individually and as Copartners under the Firm Name of Morris & Smith, Respondents, Impleaded with Others.

      Bankruptcy — trustee in bankruptcy may not sue upon a claim, which had not existed in favor of the bankrupt and had not arisen in his favor but had been merely assigned to the trustee after bankruptcy.

      Barnes v. Hirsch, 215 App. Div. 10, affirmed.
    (Argued February 24, 1926;
    decided March 30, 1926.)
    Appeal, in each of the above-entitled actions, from a judgment entered December 11, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendants, respondents, for judgment dismissing the amended complaint and granted said motion. The complaints alleged that Cowley & Co. conducted a bucket shop; that by false and fraudulent representations they induced their customers to deal with them as legitimate stockbrokers and to buy securities on margin and deposit cash and collateral with them; that promptly after buying securities for their customers they sold them for their own account; that they converted to their own use cash and collateral of their customers; that the defendants, members of the New York Stock Exchange, executed orders for Cowley & Co., knowing them to be conducting a bucket shop, and aided and abetted in the fraud and the conversion; that Cowley & Co. became bankrupt and their customers lost the equities in their several accounts; that these customers have assigned their several claims against the defendants to the plaintiff as trustee in bankruptcy of Cowley & Co. The Appellate Division held that the plaintiff was without legal capacity to sue and that the complaints did not state causes of action.

      Charles H. Tuttle and Saul S. Myers for appellant.

      Harold Nathan and I. Howard Lehman for William Schatzkin et al., respondents.

      Lester B. Bachner for Lawrence J. Hirsch et al., respondents.
   Judgment, in each case, affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Anthony Senes, Appellant.

      Crimes — wiretapping—judgment of conviction affirmed.

      People v. Senes, 210 App. Div. 845, affirmed.
    (Argued February 25, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 24, 1924, which affirmed a judgment rendered at a Trial Term for the county of New York upon a verdict convicting the defendant of wiretapping in violation of subdivision 6 of section 1423 of the Penal Law.

      Cyril F. dos Passos and Edward V. Broderick for appellant.

      Joab H. Banton, District Attorney {Feliz C. Benvenga of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Benjamin F. Hernandez, Appellant.

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

      People v. Hernandez, 210 App. Div. 842, affirmed.
    (Argued February 25, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 17, 1924, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York' rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.

      Imre M. Schwarz for appellant.

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

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


text:
    Ridley Watts et al., Respondents, v. Phillips-Jones Corporation, Appellant.

      Contract — sale — evidence — action to recover for alleged breach of contract to purchase goods — defenses that plaintiffs were not real parties in interest and that goods tendered were defective — evidence of prices.

      Watts v. Phillips-Jones Corp., 211 App. Div. 523, affirmed.
    (Argued February 25, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 15, 1925, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict. The action was brought to recover for breach of an alleged contract whereby defendant agreed to purchase from plaintiffs some 300,000 yards of unbleached cotton cloth to be delivered in weekly installments commencing in November, 1920. Defendant contended that plaintiffs in making the contract acted as agents for others and have no right to maintain the action in their own names, also that the goods tendered were defective and not in accordance with the terms of the contract.

      Louis Marshall, I. Henry Kwtz, Hugo Hirsh, Emanuel Neuman and Benjamin Reass for appellant.

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

Concur: Cardozo, Pound, Crane and Andrews, JJ.; His cock, Ch. J., McLaughlin and Lehman, JJ., dissent, on the ground that purported market reports were improperly received as evidence of prices.


text:
    Ebba Veeck, Respondent, v. Gustav A. Veeck, Appellant.

      Husband and wife — former adjudication — action by wife to set aside separation agreement —• defense of res adjudícala based upon findings and judgment in former action.

      Veeck v. Veeck, 215 App. Div. 705, affirmed.
    (Submitted February 26, 1926;
    decided March 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 20, 1925, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings. The action was brought to set aside a separation agreement between husband and wife on the ground that it did not make proper provision for the plaintiff according to the present means of the defendant. The defense of res adjudícala was based upon the findings and judgment in a previous action to set aside the same agreement. (See 237 N. Y. 555.)
    The following question was certified: “ Was the defendant entitled as a matter of law to judgment on the pleadings, dismissing the complaint? ”

      Alexander J. Lindsay and Richmond J. Reese for appellant.

      Milton R. Weinberger and William Klein for respondent.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

Concur: Cabdozo, Pound, Crane and Lehman, JJ. Dissenting: Hiscock, Ch. J., McLaughlin and And-JJ.


text:
    Elvira Sinclair, Plaintiff, v. Lydia M. Purdy, Individually and as Administratrix of the Estate of Elijah F. Purdy, Deceased, et al., Defendants; Guy W. Daly as Executor of Jennie A. Mapes, Deceased, Appellant, and Edwin G. Corey et al., as Executors of Elvira Purdy, Deceased, et al., Respondents.

      Contract — decedent’s estate — insufficiency of evidence to establish contract to devise lands.

      Sinclair v. Purdy, 213 App. Div. 439, affirmed.
    (Argued February 26, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 13, 1925, which modified an interlocutory judgment in an action of partition so as to direct a dismissal of a counterclaim of one of the defendants alleging that the owner of an undivided interest in the land in suit had contracted with said defendant to devise to her his interest in the lands in consideration of her permitting him to five with her for the rest of his life and praying for specific performance of said agreement. The Appellate Division held that there was no sufficient evidence of such a contract.

      Arthur H. Parkhurst and C. F. Swart for appellant.

      George H. Corey for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Carmine De Cicco, as Administrator of the Estate of Emma De Cicco, Deceased, Appellant, v. The New York Central Railroad Company, Respondent. Carmine De Cicco, as Administrator of the Estate of Rosina De Cicco, Deceased, Appellant, v. The New York Central Railroad Company, Respondent.

      Negligence — railroads — automobile stalled on tracks at crossing struck by train — actions for death of children passengers in automobile.

      De Cicco v. New York Central R. R. Co. (2 cases), 207 App. Div. 875, affirmed.
    (Argued February 26, 1926;
    decided March 30, 1926.)
    ■ Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 21, 1923, affirming a judgment in favor of defendant entered upon a verdict. The actions were to recover for the death of plaintiff’s intestates alleged to have been occasioned through the negligence of defendant. The two intestates, aged eight and eleven years, respectively, were passengers in an automobile which had become stalled upon the tracks of the West Shore railroad at the Flatbush avenue crossing in the city of Kingston and was struck by a train approaching from the north. There was evidence from which the jury could have found that the gates were closed when the automobile approached the tracks and that the same were raised by the person in charge of the automobile in order to permit it to pass onto the tracks. There was also evidence from which the jury could have found that the children had opportunity to leave the automobile after it became stalled, thus presenting the question whether they used the amount of care children of their age should have used in remaining in'the automobile.

      John G. Van Etten for appellants.

      Amos Van Etten for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of The New York Central Railroad Company, Respondent, against The Public Service Commission of the State of New York et al., Appellants.

      Railroads — certiorari — order of Public Service Commission directing railroad to make repairs to roadway and approaches to viaducts crossing tracks properly annulled.

      Matter of New York Central R. R. Co. v. Public Seru. Comm., 214 App. Div. 830, affirmed.
    (Argued February 26, 1926;
    decided March 30, 1926.)
    Appeal from, an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 21, 1925, which annulled, on certiorari, an order of the Public Service Commission directing the petitioner herein to make certain repairs to the roadways and approaches of the Clinton street and Mineral Springs road viaducts in the town of West Seneca, N. Y. The order of the Appellate Division directed that the proceeding “ be remitted to the Commission with instructions to follow the decision of the Court of Appeals (231 N. Y. 1) by relieving the petitioner of the burden of maintaining the roadway and sidewalks and approaches of the two viaducts outside the limits of the abutments, since the petitioner does not use said portion for railroad purposes and said portion is not ‘ railroad property ’ "within the meaning of that phrase as used by the Court of Appeals in 231 N. Y. 1.”

      Bussell B. Burnside and Charles G. Blakeslee for appellants.

      Noel S. Symons for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Northeastern Paper Co., Inc., Respondent, v. Concord Paper Co., Inc., Appellant.

      Contract — sale — Statute of Frauds — action to recover for breach of contract to purchase goods — defense that contract failed to state with reasonable certainty the amount sold.

      Northeastern Paper Co., Inc., v. Concord Paper, Co., Inc., 214 App. Div. 537, affirmed.
    (Submitted March 1, 1926;
    decided March 30, 1926.)
    Appeal from a judgment, entered December 1, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and reinstated said verdict. The action was to recover for an alleged breach of a contract to purchase merchandise. The writing specified a sale of “ all the paper in rolls now stored at the warehouse at 405 East 10th street, New York city * * * as is,” and made provision for weighing and for payment. The defense was that the contract was deficient in that it failed to state with reasonable certainty the amount of the merchandise sold.

      William S. Evans for appellant.

      Walter W. Gross and Arthur F. Gotthold for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George R. Hall, Appellant, v. The Board of Education of the City of New York, Respondent.

      Contract — New York city — action for breach of building contract — progress payments.

      Hall v. Board of Education, 214 App. Div. 705, affirmed.

      (Argued March 2, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Divirion of the Supreme. Court in the first judicial department, entered May 13, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover for an alleged breach of a building contract in that defendant refused to make certain progress payments as requested by the contractor. The contract was for the completing and finishing in accordance with the original plans and specifications of a school building, the original contract for which had been declared abandoned. The contractor contended that he was entitled to fourteen progress payments as provided in the original contract but defendant argued that nine payments had already been made to the original contractor so that he was only entitled to five.

      M. Carl Levine for appellant.

      George P. Nicholson, Corporation Counsel (John F. O’Brien and Elliot S. Benedict of counsel), for respondent.
   Judgment affirmed, with costs: no opinion.

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


text:
    James F. Daley, Respondent, v. Dyer B. Talley, Appellant.

      Negligence — malpractice — dentists — action to recover for improper dental treatment.

      Daley v. Talley, 214 App. Div. 755, affirmed.
    (Argued March 2, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 5, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The action was for malpractice. The complaint alleged that plaintiff employed the defendant, as a dentist, to extract a certain tooth and the defendant undertook, as such dentist, to extract such tooth with the necessary and proper skill in extracting the same and thereafter caring for the plaintiff’s mouth and jaw; that thereupon the defendant extracted said tooth, but did not thereafter properly treat plaintiff’s mouth and jaw, or properly wash out the cavity nor properly treat the same and by reason thereof plaintiff’s jaw and mouth became greatly infected. The answer admitted the employment and denied the other allegations of the complaint.

      George II. Bond for appellant.

      Frank J. Cregg for respondent.
   Judgment affirmed, "with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George S. Van Der Werken, Appellant.

      Crimes — officers — making or giving false certificate — judgment of conviction affirmed. t

      People v. Van Der Werken, 215 App. Div. 721, affirmed.
    (Argued March 3, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 13, 1925, which affirmed a judgment of the Supreme Court rendered at a Trial Term for the county of Nassau, upon a verdict convicting the defendant of a violation of section 1861 of the Penal Law in that he, as a public officer, being authorized by law to make or give a certificate or other writing, knowingly made and delivered as true such a certificate containing a statement which he knew to be false.

      Henry A. Uterhart, Alfred M. Schaffer and Peter P. Smith for appellant.

      Albert Ottinger, Attorney-General (Kenneth M. Spence and Robert S. Johnstone of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Levering & Garrigues Company, Respondent, v. Edward & John Burke, Ltd., et al., Respondents, and P. J. Duncan, Inc., Appellant, Impleaded with Others.

      Liens — foreclosure — action to foreclose mechanic’s lien — subrogation of surety company which furnished bond to discharge lien to rights of lienor.

      Levering & Garrigues Co. v. Burke, Ltd., 214 App. Div. 730, affirmed.
    (Argued March 3, 1926;
    decided March 30, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The judgment appealed from in substance adjudged that the mechanic’s lien of the plaintiff, bonded and discharged by the general contractor, was superior to the open and unsatisfied lien of the appellant, in form decreed a foreclosure of plaintiff’s lien, and in lieu of a sale of the premises awarded plaintiff personal judgment against the general contractor and the defendant surety company. The judgment further adjudged that -the defendant surety company be subrogated to the rights of the plaintiff in and to the sum earned and unpaid on the contract and held by the defendant Burke, Ltd., the owner, and excluded the appellant from any rights against the property or said fund.

      Samuel F. Moran and Arthur A. Kaye for appellant.

      Harry E. Herman and Arthur 0. Ernst for plaintiff, respondent.

      Daniel S. Murphy and Emerson F. Davis for Edward & John Burke, Ltd., defendant, respondent.

      Thomas L. Walsh and Joseph T. Magee for National Surety Company, defendant, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dora Laufer, Respondent, v. Morris Shapiro, Appellant. Max Laufer, Respondent, v. Morris Shapiro, Appellant.

      Negligence — buildings — duty of owner of building to one who came therein in answer to a cry of distress — action for injuries received from fall through open trap door.

      Laufer v. Shapiro (2 cases), 215 App. Div. 769, affirmed.
    (Argued March 4, 1926;
    decided March 30, 1926.)
    Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The first action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second, brought by the husband of the plaintiff in the first action, was to recover for expense caused and loss of her services by reason of the same accident. The defendant was the owner of a tenement house in which the janitress lived .in the basement. The plaintiff Dora Laufer was a friend of the janitress and, on the day of the accident, met her while marketing and walked with her to the entrance of her house. After standing and talking with her for a short time, the plaintiff left the janitress and started to go to her own home. The janitress went down the stairway to the basement, opened the door, took a step or two, and fell through a trap door which had been opened by plumbers in her absence. When a short distance away plaintiff, Dora Laufer, heard a scream and recognized it as the voice of the janitress. She thereupon turned back to the house, ran down to the basement door, opened it and rushed inside, whereupon she fell into the same uncovered trap and received the injuries for which damages are sought in these actions. (See 210 App. Div. 436.)

      Walter L. Glemiey and BertrandL. Pettigrew for appellant.

      Harry G. Anderson and Nathaniel Phillips for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Morris Run Coal Company, Inc., Appellant, v. Carthage Sulphite Pulp and Paper Company, Inc., et al., Respondents.

      Contract — sale — question of fact — action to recover for goods sold and delivered — questions as to when there was a complete contract and whether there was a breach of warranty for the jury.

      Morris Run Coal Co., Inc., v. Carthage Sulphite P. & P. Co., Inc., 210 App. Div. 678, affirmed.
    (Argued March 4, 1926;
    decided March 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 19, 1924, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial. The action was to recover for goods alleged to have been sold and delivered under two separate contracts whereby plaintiff agreed to sell and defendant Carthage Sulphite Pulp and Paper Company agreed to buy ten carloads of anthracite screenings. The Appellate Division reversed on the ground that questions as to when there was a complete contract and as to whether there was a breach of warranty as to quality should have been submitted to the jury.

      William L. Bowman for appellant.

      Fred L. Smith for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


author: Per Curiam.

text:
    Alexander Roman, Appellant, v. Juliana Lobe, Respondent.
    (Submitted March 1, 1926;
    decided March 30, 1926.)
    Motion for reargumont. (See 241 N. Y. 514.)
   Per Curiam.

In view of the fact, which is now pointed out to us upon this motion for reargument, that the defendant’s answer admits the employment of the plaintiff and his procurement of the sale, the judgment of the Appellate Division must have been based upon the holding that a license was essential, since no other issue was presented by the pleadings.

A reargument will be granted to the end that the constitutionality of the statute (Real Prop. Law [Cons. Laws, ch. 50], § 442-e) may be considered and determined.

Pursuant to section 68 of the Executive Law (Cons. Laws, ch. 18), the plaintiff is directed to give notice to the Attorney-General of the argument of this appeal and the questions to be raised thereon.

Motion for reargument granted.


text:
    Vernon Metal and Produce Company, Inc., Appellant, v. The Joseph Joseph & Brothers Company, Respondent.
    (Submitted January 11, 1926;
    decided March 30, 1926.)
   Motion by defendant, respondent, to amend remittitur granted. Return of remittitur requested and when returned the remittitur will be deemed amended by reducing judgment in favor of plaintiff to the sum of $358.60, with costs in all courts, and motion by plaintiff, appellant, to amend remittitur denied, without costs to either party of either motion. (See 241 N. Y. 544.)


text:
    Harry Kottler, Respondent, v. New York Bargain House, Inc., Appellant.
    (Submitted February 23, 1926;
    decided March 30, 1926.)
   Motion by defendant to amend remittitur and motion by plaintiff for reargument denied, without costs to either party. (See 242 N. Y. 28.)


text:
    William R. Craig et al., Appellants and Respondents, v. Jambs T. Anyon et al., Respondents and Appellants.

      Negligence — accountants — action to recover for failure of accountants to discover defalcation.

      Craig v. Anyon, 212 App. Div. 55, affirmed.
    (Argued March 1, 1926;
    decided April 6, 1926.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 3, 1925, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court. The action was for negligence in that defendants, who composed an accounting firm and had contracted to audit the plaintiffs’ books every three months, did their work so carelessly that they failed to discover and report a defalcation by one of plaintiffs’ employees through a period of nearly five years whereby plaintiffs had been defrauded of large sums of money. The trial court directed a verdict for the amount paid for the defendants’ services.

      J ohn H. Jackson and Warren W. Cunningham for plaintiffs, appellants and respondents.

      Alfred A. Cook, Harold Nathan and Frederick F. Greenman for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    The National Cash Register Company, Appellant, v. Remington Arms Company, Inc., Respondent.
    (Submitted March 29, 1926;
    decided April 6, 1926.)
   Motion for reargument or to amend remittitur denied, with- ten dollars costs and necessary printing disbursements. (See 242 N. Y. 99.)


text:
    Millie Metzroth, as Administratrix of the Estate of Charles P. Metzroth, Deceased, Appellant, v. City of New York et al., Respondents, Impleaded with Others.
    (Submitted March 29, 1926;
    decided April 6, 1926.)
    Motion to amend remittitur. (See 241 N. Y. 470.)
   Motion granted, without costs. Return of remittitur requested and when returned said remittitur will be amended by striking out names of defendants Jacob Volk and Volk Housewrecking Co., Inc., respondents.'


text:
    Edwin F. McGee, Appellant, v. Nathan Levy, Respondent.

      Appeal — failure to file undertaking with clerk of court wherein original judgment or order was entered — motion to dismiss appeal granted. McOee v. Levy, 215 App. Div. 720, appeal dismissed.
    (Submitted March 29, 1926;
    decided April 6, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 13, 1925, which reversed an order of Special Term denying a motion to dismiss the complaint and granted said motion.
    The motion was made upon the ground of failure to file the required undertaking.

      Morris Schneider for motion.
    No one opposed.
   Appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Theodorus Bailey, Respondent, v. Robbins S. Rutherford, Appellant.
    (Submitted March 29, 1926;
    decided April 6, 1926.)
   Motion for reargument denied, without costs. Motion to amend remittitur granted. Return of said remittitur requested and when returned same will be deemed amended so as to provide that appellant pay to respondent the sum of $1,113.90, with costs to appellant in this court. (See 242 N. Y. 220.)


text:
    In the Matter of the Application of Joseph E. Sergio Cuevas, Jr., Appellant, for an Order of Mandamus against Joab H. Banton, as District Attorney of New York County, Respondent.

      Appeal — leave not obtained — papers on appeal not served — 'motion granted and appeal dismissed.

      Matter of Cuevas, 215 App. Div. 708, appeal dismissed.
    (Submitted March 29, 1926;
    decided April 6, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 11, 1925, which dismissed an appeal by appellant from an order of the Special Term denying an application for an order of mandamus.
    The motion was made upon the grounds that permission to appeal had not been obtained and that appellant had failed to serve the record on appeal.

      Joáb H. Banton, District Attorney (Edwin B. McGuire, of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Guisippina Parascandola, as Administratrix with the Will Annexed of Joseph Auditore, Deceased, Plaintiff, v. Frank Auditore, Individually and as Administrator with the Will Annexed of Joseph Auditore, Deceased, Appellant, and Auditore Contracting Co., Inc., Respondent, Impleaded with Others.

      Appeal —■ permission to appeal on certified questions granted by Appellate Division — appeal dismissed for failure to perfect same within thirty days after leave was granted.

      Parascandola v. Auditore, 215 App. Div. 277, appeal dismissed.
    (Submitted March 29, 1926;
    decided April 6, 1926.)
    Motion to dismiss an appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 15, 1926, which reversed two orders of Special Term, one of which refused to grant leave to the respondent to issue an execution against the person of Frank Auditore and the other of which vacated an execution which had been issued against him.
    The motion was made upon the ground that said appeal had not been perfected within the time prescribed by law.

      John J. Kean for motion.

      John B. Johnston opposed.
   Appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Application of the People of the State of New York by James A. Beha, as Superintendent of Insurance of the State of New York, Respondent, for an Order to Take Possession of the Property and Assets of the Second Russian Insurance Company, Appellant.

      Appeal — order — motion to dismiss denied.

    Reported below, 215 App. Div. 796.
    (Argued March 29, 1926;
    decided April 6, 1926.)
    Motion to dismiss an appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 29, 1926, which unanimously affirmed an order of Special' Term authorizing and directing the Superintendent of Insurance to take possession of the business, property and affairs of the Second Russian Insurance Company for purposes of liquidation.
    The motion was made upon the grounds that the order appealed from was discretionary and that there was involved no question of law which the Court of Appeals could review.

      Albert Ottinger, Attorney-General (Clarence C. Fowler and Joseph C. H. Flynn of counsel), for motion.

      Wendell P. Barker and Hervey J. Drake opposed.
   Motion denied, with ten dollars costs.


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    Joseph Helman, an Infant, by John Helman, His Guardian ad Litem, Respondent, v. International Railway Company, Appellant.

      Negligence — railroads — carriers — collision between two cars of defendant railroad — action by passenger to recover for injuries received.

      Helman v. International Ry. Co., 214 App. Div. 763, affirmed.
    (Argued March 2, 1926;
    decided April 7, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 27, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The injuries were sustained as the result of a collision between two cars of defendant, in one of which plaintiff was riding as a passenger Defendant admitted liability and the only issue tried and submitted to the jury was that of damages.

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

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

Concur: Cardozo, Pound, Andrews and Lehman, JJ. Dissenting: Hiscock, Ch. J., McLaughlin and Crane, JJ., on ground of errors in charge.


text:
    The People of the State of New York, Respondent, v. Walter J. Salmon, Appellant.

      Crimes — violation of Labor Law — failure to install water closet as directed by State Industrial Commission.

      People v. Salmon, 206 App. Div. 749, affirmed.
    (Submitted March 3, 1926;
    decided April 7, 1926.)
    . Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 22, 1923, which affirmed a judgment of a Court of Special Sessions of the city of New York convicting the defendant of a violation of the Labor Law in that he failed to obey the following order of the State Industrial Commission: “ You are hereby directed to comply with the following requirements of law (Chap. 36, Laws of 1909, as amended) in the building located at No. 1 W. 42nd St., in the City and County of New York, Borough of Manhattan, now used for Shaw’s Jewelry Shop purposes and which you are the owner:
    “1. Provide a suitable water closet, to be constructed, lighted and ventilated, according to the provisions of the Industrial Code.”

      Walter H. Bond for appellant.

      Joab H. Banton, District . Ittorney (Felix C. Benvenga of counsel), for respondent.
   Judgment affirmed; no opinion.

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


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    In the Matter of the Application of the People of the State of New York, by James A. Beha, as Superintendent of Insurance, Appellant. Second Russian Insurance Company, Respondent.

      Appeal — order of Appellate Division denying motion to dismiss appeal thereto — appeal to Court of Appeals dismissed.

      Matter of People (Second Russ. Ins. Co.), 215 App. Div. 801, appeal dismissed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1926, which denied a motion to dismiss the appeal of the Second Russian Insurance Company to that court from an order directing its liquidation.

      Albert Ottinger, Attorney-General (Clarence C. Fowler, and Joseph C. H. Flynn of counsel), for appellant.

      Hervey J. Drake and Wendell P. Barker for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    William H. W. Youngs, Plaintiff, v. Clarissa Goodman et al., Defendants, Walter G. Herbert, as Ancillary Administrator of Louise Montes, Deceased, Appellant. Philip Berolzheimer, Chamberlain of the City of New York, Respondent.

      Partition — dower — gross sum deposited with chamberlain of city of New York in lieu of dower — amount properly paid to husband upon death of wife without making claim thereto.

      Youngs v. Goodman, 214 App. Div. 497, affirmed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal, by permission, from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered November 27, 1925, which affirmed two orders of Special Term, the first of which denied a motion to vacate an ex parte order directing payment of certain moneys on deposit with the chamberlain of the city of New York in a partition action, and the second of which denied a motion for payment of said moneys to the appellant herein.
    The following questions were certified: “1. Did the Supreme Court at Special Term, subsequent to the final judgment in partition, herein, dated May 13, 1912, and subsequent to the order of the Supreme Court, dated July 22, 1912, entered upon the application of the defendant, Harry E. Montes, which order directed that the sum of One thousand six hundred • thirty-three and 81 /100 ($1,633.81) Dollars be deposited with the Chamberlain of the City of New York as and for a gross sum to which Louise Montes, a defendant, wife of Harry E. Montes, Was entitled in lieu of her dower interest in the proceeds of sale in such partition, have the power, right and authority, ex parte and without notice, to direct the payment of the said sum so deposited, to Harry E. Montes, instead of Louise Montes, by reason of the death of the said Louise Montes, without her, during her lifetime, having asserted her right thereto?
    “2. Was the order made by Mr. Justice Finch on January 29, 1921, sufficient authority to justify payment by the Chamberlain of the City of New York of the funds therein mentioned to Harry E. Montes?

      “ 3. Did the order of January 29, 1921, show, on its face that the Court was without jurisdiction to make it?
    “ 4. Was any duty imposed upon the Chamberlain of the City of New York to verify the recital in the order of January 29, 1921, ‘ that no other party to this action, or other person has any share or interest in the sum of money still remaining on deposit with the Chamberlain of ■ the City of New York to the credit of this action, and adjudged and directed to be paid to the said Louise Montes, now deceased, save and except the petitioner, Harry E. Montes, her surviving husband? ’ ”

      Harry M. Lewy for appellant.

      George P. Nicholson, Corporation Counsel (William E. C. Mayer and Walter B. Caughlan of counsel), for respondent.
   Orders affirmed, with costs; first question certified answered in the affirmative; other questions not answered; no opinion.

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


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    In the Matter of the Application of Peter Goldenberg, Respondent, v. William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Appellants.

      New York city — zoning law — erroneous reversal of determination of board of appeals denying permission to alter stores into garage.

      Matter of Goldenberg v. Walsh, 215 App. Div. 396, reversed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 5, 1926, which affirmed an order of Special Term sustaining an order of certiorari and annulling a determination of the board of appeals of the city of New York denying the application of the petitioner for a permit to convert ’his one-story building on Webster avenue near One Hundred and Ninety-fourth street in the borough of The Bronx from stores into a garage. The Appellate Division held that the action of the board in denying petitioner’s application was unreasonable and discriminatory.

      George P. Nicholson, Corporation Counsel {John F. O’Brien and William T. Kennedy of counsel), for appellants.

      Charles B. McLaughlin for respondent.
   Orders reversed and determination of board of appeals affirmed, with costs in all courts, on dissenting opinion of McAvoy, J., below.

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


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    In the Matter of the Claim of Charles Pickerell, Respondent, against A. C. Schumacher et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant ■— apoplexy alleged to be due to effort of driver of automobile to avert accident.

      Pickerell v. Schumacher, 215 App. Div. 745, affirmed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 18, 1925, modifying and affirming as modified an award of the State Industrial Board made under the Workmen’s Compensation Law. The claim for compensation was made upon the theory that the claimant in attempting to avert an accident sustained a cerebral apoplexy, due to increased muscular effort in the operation of an automobile hearse.. As he was driving the hearse up a grade which led into the cemetery at Borodino, the car immediately preceding it Was stalled and the claimant applied his emergency brake for the purpose of stopping his car but the brake was not effective and the car started to back up. Claimant pulled the steering wheel to the right and after bacldng down a distance of about twenty feet backed the hearse into a bank on the left side of the road. There is evidence that while in bed early the following morning he suffered a partial stroke followed by another eight days thereafter.

      Lewis C. Ryan for appellants.

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

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


text:
    In the Matter of the Claim of Jesse Brandow, Respondent, against Town of Coxsackie et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — owner of wagon and team employed to work with them on roads injured while attempting to stop horses from running away.

      Brandow v. Town of Coxsackie, 215 App. Div. 732, affirmed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 11, 1925, affirming an award of the State Industrial Board made under the Workmen's Compensation Law. The claimant was employed by the town of Coxsackie to work with a wagon and team of horses belonging to him in connection with the construction of roads and bridges. Previous to the day of the accident the claimant had been instructed by his foreman to go up the road to take some posts back to where the gang was working. On that day he got up early and started hitching up his horses. This Was done in the road, in front of his bam. Just as he was hitching the horses to the wagon a dog, chasing a rabbit, ran under the horses, frightening them, so that they jumped, and started to run. Claimant jumped on the wagon and tried to stop his horses, but they continued running for a considerable distance and ultimately he was thrown out of the wagon and received the injuries for which an award of compensation has been made.

      Walter L. Glenney for appellants.

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

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


text:
    In the Matter of the Claim of Rose Newman, Respondent, against American Fruit Growers, Inc., et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — salesman injured, through crate falling on foot crushing a toe — death from gangrene.

      Newman v. American Fruit Growers, Inc., 215 App. Div. 738, affirmed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the -third judicial department, entered December 18, 1925, modifying and affirming as modified an award of the State Industrial Board made under the Workmen’s Compensation Law. The business of the employer was that of produce commission. The occupation of the employee that of salesman. While in the course of his employment the latter was injured by the falling of a crate of celery on his foot crushing one of his toes. Gangrene subsequently set in causing death. Edward P. 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: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Claim of Theodore Anderson, Respondent, against Jarrett-Chambers Company, Inc., et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant ■— resident of New York, hired in New York by New York corporation having control office in New York, to work on job in New Jersey — jurisdiction of New York Industrial Commission to award compensation for injury in course of employment.

      Anderson v. Jarrett-Chambers Co., Inc., 215 App. Div. 742, affirmed.
    (Argued March 29, 1926;
    decided April 7, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 11, 1925, affirming an award of the State Industrial Board made under the. Workmen’s Compensation Law. Claimant, a resident of Brooklyn, was hired in New York by the Jarrett-Chambers Company, which was incorporated under the laws of the State of New York and had its offices of control in New York city, to Work on a job in New Jersey. In the course of his employment he was injured and the question was whether the Industrial Commission of the State of New York had jurisdiction to award compensation therefor.

      William B. Davis and E. C. Sherwood for appellants.

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

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


text:
    J. Hermon McLear, Appellant, v. Joseph Balmat et al., Defendants, Northern Ore Company, Respondent, and Sylvia Lake Company, Inc., et al., Appellants.
    (Submitted April 5, 1926;
    decided April 7, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 238 N. Y. 568, 614; 239 N. Y. 540.)


text:
    In the Matter of Eugene F. McGee, Appellant. Association of the Bar of the City of New York, Respondent.

      Attorneys — order of disbarment affirmed.

      Matter of McGee, 211 App. Div. 650, affirmed.
    (Argued March 29, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 17, 1925, disbarring the appellant from practice and directing that his name be stricken from the roll of attorneys and counselors at law in the State of New York.

      I. Maurice Wormser, Peter J. Baxter and Clark L. Jordan for appellant.

      Binar Chrystie for respondent.
   Order affirmed; no opinion.

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


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    William J. Schieffelin, Respondent, v. Dominick Henry et al., Appellants.

      Constitutional law — taxpayer’s action — municipal corporations — police — invalidity of statute authorizing municipality to reimburse police officer for expense incurred in defending himself from criminal prosecution.

      Schieffelin v. Henry, 215 App. Div. 706, affirmed.
    (Argued March 30, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 25, 1925, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion for judgment on the pleadings in a taxpayer’s action against the comptroller and chamberlain of the city of New York and Dominick Henry, an inspector of police, to secure an injunction preventing the officials of the city from paying pursuant to a resolution of the board of estimate and apportionment of the city of New York, the sum of° $29,880.60 to defendant Henry, to reimburse him for expenses incurred in defending himself against criminal prosecutions. The auditing and allowing of Henry’s claim by the board of estimate and apportionment was specifically authorized by chapter 758 of the Laws of 1923, which authorization, however, the plaintiff claimed to be unconstitutional.

      George P. Nicholson, Corporation Counsel (Martin Conhoy and Henry T. Hall of counsel), for appellants.

      Leonard M. Wallstein and Ralph M. Frink for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George M. Clough, Respondent, v. United States Fidelity and Guaranty Company, Appellant.

      Undertaking — sureties — debtor and creditor — action to recover upon undertaking given to secure return of judgment debtor to custody of sheriff — sufficiency of demand for surrender.

      Clough v. United States F. & C. Co., 215 App. Div. 790, affirmed.
    (Argued March 30, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 11, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon an undertaking given October 16, 1918, whereby defendant agreed that if a judgment debtor did not surrender into the custody of the sheriff within fifteen days after written demand, defendant would pay to the attorney of plaintiff’s assignor five thousand dollars, waiving all technical defenses. The assignor from time to time made demand upon defendant to surrender the judgment debtor but upon payment of small amounts on the judgment withdrew such demands. Finally in April, 1923, the judgment debtor disappeared and this action was brought to recover on the undertaking. The defenses were that the undertaking given in 1918 required a reasonable demand to be made for the return of the judgment debtor to custody, and that a demand made in April, 1923, was not a reasonable demand, nor a demand made within a reasonable time; that there was no evidence that plaintiff had sustained any damage because of the failure of the judgment debtor to return to custody in compliance with the demand of April 27, 1918; and that on April 27, 1923, the time within which he could -be lawfully arrested had expired.

      Charles Capron Marsh and Bolph Thayer Marsh for appellant.

      Clarence Alexander for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    E. Rodgers Sylvester, Appellant, v. New York Herald Company, Respondent.

      Master and servant — article mitten by plaintiff in course of employment printed by defendant, his employer, under name of another — complaint states no cause of action in absence of allegation of violation of contract or custom or of special damage.

      Sylvester v. New York Herald Co., 214 App. Div. 713, affirmed.
    (Submitted March 30, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 26, 1925, which unanimously affirmed a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for a dismissal of the complaint. Defendant printed an article, written by plaintiff, one of its employees, without affixing his name thereto and ascribing it to another person. This action was brought to recover for alleged damage to plaintiff's reputation and property rights. There was no allegation of any contract that plaintiff's productions either should be printed under his name or should not be printed under the name of another, nor was any custom to that effect set up nor special damages pleaded.

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

      R. 0. Willguss and John Lehman for respondent.
   Judgment affirmed, w th costs; no opinion.

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


text:
    Marie Poulsen, Appellant, v. Peter Poulsen, Respondent.

      Husband and wife — divorce — complaint in action for divorce properly dismissed.

      Poulsen v. Poulsen, 215 App. Div. 861, affirmed.
    (Submitted March 30, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 15, 1926, modifying and affirming as modified a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action for divorce.

      Bernard Swartz for appellant.

      Merritt N. Baker for respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Morris Arnheim, Respondent, v. Simon E. Hecht et al., Appellants.

      Negligence —• streets — defect in covering of vault maintained in front of premises ■— injury to pedestrian from fall caused by catching foot in hole.

      Arnheim v. Hecht, 215 App. Div. 764, affirmed.
    (Argued March 31, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 17, 1925, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. The complaint alleged that plaintiff while walking on the west side of Broadway in the borough of Manhattan caught his foot in a hole in a steel and glass vault covering maintained by defendants in front of their premises and falling received the injuries complained of.

      Walter L. Glenney and Bertrand L. Pettigrew for appellants.

      Harold R. Medina and Nathan Gordon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Meter Renting Co., Inc., Respondent, v. Thomas E. Greacen et al., Appellants.

      Corporations — directors — action by corporation to recover from directors amount of alleged improper payments authorized by them.

      Meter Renting Co., Inc., v. Greacen, 214 App. Div. 722, affirmed.
    (Argued March 31, 1926;
    decided May 4, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 5, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought to recover from three former directors of plaintiff, a corporation, payments authorized by them for salaries and expenses in violation of an alleged agreement between the organizers of the corporation that “ so long as any such loans are unpaid no salaries shall be paid to officers or to the general manager, nor fees to directors, nor shall the company incur any expenses whatever except by consent of all the directors and the net profits of the business shall be applied first to the payment of such loans.”

      George D. Carrington, Samuel Greenbaum and Jonas J. Shapiro for appellants.

      Harford T. Marshall for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Naro, Respondent, v. Liggett Winchester Ley Realty Corporation, Appellant.

      Negligence —• elevators — workman engaged in removing rubbish from cellar injured through sudden starting of elevator after stopping below sidewalk level.

      Naro v. Liggett Winchester Ley Realty Corp., 215 App. Div. 835, affirmed.
    (Argued March 31, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 20, 1926, 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 injured while lawfully riding on a lift elevator running from the sub-basement of defendant’s building to the sidewalk and operated by an employee of defendant. It was alleged that at the time of the accident plaintiff was engaged in removing bags of rubbish from the basement to the sidewalk; that the elevator loaded with bags stopped two feet below the sidewalk level and plaintiff assuming that it would remain there started to unload the bags. While he was thus engaged the operator manipulated the mechanism so that the elevator started with a jerk causing plaintiff to slip back so that his foot was caught between the elevator and wall resulting in the injury complained of.

      Walter L. Glenney for appellant.

      Jacquin Frank, David M. Fink and Sol Boneparth for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Merchants Loan and Investment Corporation, Appellant, v. William Abramson et al., Respondents, Impleaded with Others.

      Corporations — officers and directors ■— right to office question of law to be determined in action of quo warranto and not by action in equity for injunction.

      Merchants Loan & Investment Corp. v. Abramson, 214 App. Div. 252, affirmed.
    (Submitted March 31, 1926;
    decided May 4, 1926.)
    Appeal from a judgment, entered November 2, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for judgment on the pleadings, denied said motion and directed a dismissal of the complaint. The question involved was as to which of two sets of officers and directors of a corporation were lawfully elected and entitled to office. The Appellate Division held that an action in equity to enjoin one set of officers and directors from functioning would not lie,'the rights to the offices being legal and to be determined by an action at law in the nature of quo warranto.

      Reuben Brown for appellant.

      Reuben Dorfman for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Rosina Passaretti, as Administratrix of the Estate of James Fierro, Deceased, Appellant, v. Frank Cerra, Respondent, Impleaded with Another.

      Negligence — employee of subcontractor killed by fall from plank placed across stair well of building in course of construction — insufficiency of evidence to show negligence on part of general contractor.

      Passaretti v. Cerra, 215 App. Div. 714, affirmed.
    (Argued March 31, 1926;
    decided May 4, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 12, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through .the negligence of defendant. Decedent was employed as a plumber’s helper by a subcontractor of the defendant, and was worldng on the third floor of a building in the course of construction in Long Island City, of which respondent was general contractor. Not far from where decedent worked there was an open stair well about fifteen by ten feet. Across the ten-foot space was a plank eight to ten inches wide and one and one-half to two inches thick. It spanned this open space within eighteen inches of the building wall, and within the same distance of a window opening in the wall. Decedent walked out on this plank and when he had gone about three to four feet, lost his balance and fell off, sustaining injuries from which he died. The plank did not break or fall, and there is no evidence that it moved or shifted in any way, the only evidence' being that it sagged somewhat.

      George P. Foulk and William H. Wack for appellant.

      John C. Robinson and James B. Henney for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Edward L. Finch et al., as Trustees under a Deed of Trust, Made by Annie R. Finch, Appellants, v. Unity Fee Company, Inc., et al., Respondents, and Caggle Realty Co., Inc., et al., Appellants, Impleaded with Others.

      Real property — covenants — action to obtain declaratory judgment declaring rights of parties under restrictive covenant affecting part of plaintiff’s premises.

      Finch v. Unity Fee Co., Inc., 211 App. Div. 430, affirmed.
    (Argued April 1, 1926;
    decided May 4, 1926.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 21, 1925, modifying and aflSrming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term-. This action was brought under the provisions of section 473 of the Civil Practice Act and rules 210-214 of the Rules of Civil Practice for a judgment declaring the rights of the various parties under a certain restrictive covenant affecting a portion of the plaintiffs’ premises, which, it was claimed, had been abandoned, and which owing to change in the neighborhood was no longer needed. As alternative relief the plaintiffs asked that in the event the court should find that the covenant was still operative, then that there should be judgment holding the erection and maintenance of a building on an adjoining parcel to be in violation of the covenant, and that the building be ordered removed. The Appellate Division upheld the covenant and granting to plaintiffs the alternative relief asked directed the removal of the buildings from the parcel in question and enjoined the further maintenance of a building thereon.

      William D. Guthrie and George A. Lewis for plaintiffs, appellants.

      Abraham P. Wilkes and Irving Katz for defendants, appellants.

      Harold Swain, Arthur H. Indell and Frank M. Tichenor for respondent.
   Judgment affirmed, with costs; no opinion.

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