text:
    Giovanni Zolezzi, Respondent, v. Ruth A. Bruce-Brown et al., Appellants.
    Nuisance — real property — landlord and tenant — New York city — ordinance of city of New York authorizing placing of signs on buildings does not impose upon owner duty to see that sign erected by tenant is securely fastened — duty of owner to repair walls of building does not require inspection of manner in which sign in control of tenant is attached to a wall — liability of owner to one injured by fall of sign not predicated upon lease of entire building to third party while sign placed upon its front by a tenant of a part constituted a nuisance.
    1. An ordinance of the city of New York providing that “ signs may be placed on the fronts of buildings with the consent of the owner thereof. They must be securely fastened,” does not expressly or by fair implication impose upon an owner, who has consented to the erection of a sign by a tenant, the duty to see that the sign is securely erected or carefully maintained.
    2. Nor may liability of the owner for injury to plaintiff from the fall of a sign, erected and maintained by her tenant, be predicated upon the fact that she retained some control of the outer walls for the purpose of making repairs, where the fall was occasioned by the negligent erection or maintenance of the sign and not from failure to keep the walls in repair. The duty to repair the walls of a building, of which the landlord maintains control, does not include the duty to inspect the manner in which a sign in the exclusive control of a tenant is attached to a wall.
    3. The fact that, while the lease of a portion of the building to the tenant who erected the sign was in existence, the owner leased the entire building to a third party, does not render her liable upon the theory that while the sign upon its front constituted a nuisance she parted with control under circumstances from which an inference might be drawn that she authorized its continuance or profited thereby. The owner was never in control of the nuisance and had neither actual nor constructive knowledge that it was such. No greater duty of care may be imposed upon a landlord who is about to part with bis reversion than he was under while privity of estate with the tenant continued. A landlord who parts only with a right to future control of a nuisance for which he is then not responsible, and of which he is not informed, commits no wrong to the public, and from his act no inference can arise that he either authorized its continuance or intended to profit thereby. If thereafter those in actual control of the nuisance choose to continue it, he has not by wrongful act or intendment contributed to their wrong, and may not be held for damages to others caused thereby.
    (Argued October 1, 1926;
    decided November 16, 1926.)

      Zolezzi v. Kroll & Horowitz Furniture Co., 216 App. Div. 719, modified.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 2, 1926, affirming a judgment in favor of plaintiff entered upon a verdict.

      Edward P. Mowton, Leonard J. Obermeier and Alvin S. Rosenson for Ruth A. Bruce-Brown, appellant.
    The defendant owner, having leased the entire premises, was not in possession or control at the time of the injury. and was not liable for the negligence of the tenant, nor for a nuisance created or permitted by the tenant. (Metzroth v. City of New York, 241 N. Y. 470; Ahern v. Steele, 115 N. Y. 203; Uggla v. Brokaw, 117 App. Div. 586; Clancy v. Byrne, 56 N. Y. 129; Jennings v. Van Schaick, 108 N. Y. 530; Anderson v. Caulfield, 60 App. Div. 560; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Conhocton Stone Road v. Buffalo, etc., R. R. Co., 51 N. Y. 573.) The sign was personal property and never became a part of the premises which were leased. The demised premises were not a nuisance. (Bedlow v. New York Floating Dock Co., 112 N. Y. 263; Stahl & Jaeger v. Statenstein, 233 N. Y. 196; Baldwin v. Morgan, 43 Hun, 355.)

      S. M. Ress, Samuel Greenbaum, Clayton J. Heermance and Jonas J. Shapiro for Kroll & Horowitz Furniture Company, appellant.
    There is no proof either that the defect in the sign which was the proximate cause of its fall existed at the time the defendant general lessee renewed the subordinate lease; or that the sign was defective in any respect at that time. (Ahern v. Steele, 115 N. Y. 203; Uggla v. Brokaw, 117 App. Div. 586; MacRae v. Chelsea Fibre Mills, 145 App. Div. 588; Schumer v. Caplin, 241 N. Y. 346; Walls v. Bailey, 49 N. Y. 464; Odell v. Solomon, 99 N. Y. 635; Clancy v. Byrne, 56 N. Y. 129; Simon v. Etgen, 213 N. Y. 589; Taylor v. Higgs, 202 N. Y. 65.) Even assuming that there was some evidence that the sign was a nuisance prior to the time that the defendant general lessee took a lease of the entire premises from the owner, it is not liable because there is no proof that it had any knowledge of the nuisance at the time it relet, nor were any facts shown from which such notice might have been implied. (Newburger v. American Surety Co., 242 N. Y. 134.)

      Herbert Northrup Warbasse and George W. Matheson for respondent.
    The owner is liable because she permitted a public nuisance to be maintained on the premises in question; and after the creation of the public nuisance, she relet the premises without abating the nuisance. (Bohan v. Port Jervis Gas Light Co., 122 N. Y. 32; Melker v. City of New York, 190 N. Y. 481; People v. 131 Boerum Street Co., 233 N. Y. 268; Village of Carthage v. Frederick, 122 N. Y. 268; Crayton v. Larabee, 220 N. Y. 493; Hart v. City Theaters Co., 215 N. Y. 322; Cohen v. Mayor, etc., of N. Y., 113 N. Y. 532; Ackerman v. True, 175 N. Y. 353; Acme Realty Co. v. Schinasi, 215 N. Y. 495; Matter of McCoy v. Apgar, 241 N. Y. 71.) Even though the sign in question was personal property of the tenant, the owner is not exempted thereby from liability. (Hungerford v. Bent, 55 Hun, 6; 130 N. Y. 653; Woodman v. Sheppard, 238 Mass. 196.) There was ample evidence to sustain, a finding that the sign in question was a nuisance from the date of its erection to the date of the accident. (McNulty v. Ludwig & Co., 153 App. Div. 206; San Filippo v. Am. Bill Post. Co., 112 App. Div. 395; 188 N. Y. 514; Dougherty v. Milliken, 163 N. Y. 527; Jenks v. Thompson, 179 N. Y. 20; Kent v. Erie R. R. Co., 217 N. Y. 349; Bennett v. L. I. R. R. Co., 163 N. Y. 1; Shanahan v. E. M. P. E. Co., 204 N. Y. 543; Webster v. L. & P. Co., 158 App. Div. 214; While v. Ken. Pub. Elev. Co., 186 Ky. 91; Thompson v. DeLong, 110 Atl. Rep. 251.) The lessee of the building is liable because it renewed the lease of a part thereof when a public nuisance existed on the premises and reserved to itself control over signs to be erected on the walls of the building. (Ahern v. Steele, 115 N. Y. 231; 16 Ruling Case Law, 1079; Clancy v. Byrne, 56 N. Y. 129; Dalay v. Savage, 145 Mass. 38; Hungerford v. Bent, 55 Hun, 3; 130 N. Y. 653; Timlin v. Standard Oil Co., 126 N. Y. 514; Matthews v. De Groff, 13 App. Div. 356; McNulty v. Ludwig & Co., 153 App. Div. 206.)
   Lehman, J.

On October 26th, 1922, the plaintiff was injured by the fall of a sign which had been attached to a building owned by the defendant Ruth A. Bruce-Brown. In October, 1916, six years before the accident, Mrs. Bruce-Brown had leased to Harry McCanliss “ the third loft, being the fourth story,” of the building for a period of five years commencing February 1st, 1917. After McCanliss entered into possession of the loft, he placed on its exterior wall the sign which fell down and injured the plaintiff several months after the lease from Mrs. Bruce-Brown to McCanliss had expired. On December 19th, 1921, while the sign erected by McCanliss was still in position and the term of the lease to him had not entirely expired, Mrs. Bruce-Brown leased the entire building to Kroll & Horowitz Furniture Co., Inc., for a term of years. Thereupon Kroll & Horowitz Furniture Company subleased to Harry McCanliss the premises which he was then occupying for the term of one year, beginning February 1st, 1922, the date when his earlier lease expired. The accident occurred during the new term. The plaintiff has obtained a judgment entered upon the verdict of a jury for damages against the tenant McCanliss who erected the sign, against Kroll & Horowitz Furniture Company which at the time of the accident was the immediate landlord of McCanliss, and against Mrs. Bruce-Brown who owns the building.

The theory upon which the case was submitted to the jury is that the evidence is sufficient to sustain findings that the sign was negligently erected and maintained by the defendant McCanliss; that the sign so erected created a danger to pedestrians and constituted a nuisance, and that the other defendants by act or omission on their part have become liable for the continued maintenance of the nuisance, though at the time of the accident Mrs. Bruce-Brown," at least, had no control thereof.

We assume that the defendant McCanliss negligently erected the sign. He has not appealed. The Appellate Division has unanimously affirmed the judgment against Kroll & Horowitz Furniture Company. We may not review the evidence to determine whether it is as a matter of law sufficient to sustain the finding of the jury that that defendant has joined in the maintenance of a nuisance, and no exception to the admission or exclusion of evidence or to the charge raises other questions of law as to the correctness of the theory upon which the case was tried or was submitted to the jury, or the judgment was affirmed. The judgment as to it must, therefore, be affirmed. Our review upon the appeal of Mrs. Bruce-Brown is not so limited.

The defendant Bruce-Brown had leased the loft to McCanliss when the sign was erected. While that lease was in existence she leased the entire building, including the loft, to another party. She was not in possession of the loft, and had no control over it, either at the time when the sign was erected, at the time she made the lease to Kroll & Horowitz Furniture Co., Inc., or at the time when it fell. She did not erect the sign. Liability, if any, must, therefore, be predicated upon wrongful act or neglect as owner of the building while she was landlord of McCanliss.

At the time the lease was made to McCanliss, there was no nuisance on the leased premises. While the lease does not expressly include the exterior wall of the fourth story of the building or the right to place a sign thereon, there can be no doubt that the tenant obtained some right or interest in the exterior of the walls which form the inclosure of his loft. Some cases hold that the outer face of the wall is equally with the inner face a part of the premises demised ” (citing cases). (Stahl & Jaeger v. Satenstein, 233 N. Y. 196.) If there be doubt as to whether the lease included the outer surface of the wall, that doubt was settled by the practical construction placed by the parties upon their contract. As between themselves, it is clear that the lease to the tenant included the right to erect signs upon the outer face of the walls inclosing his loft.

The tenant’s right to erect signs which has been granted to him by the landlord is, of course, subject to regulation by appropriate public authorities. Chapter 23, article 16, section 210 of the Code of Ordinances provides such regulation, and to that extent limits the rights of the tenant. It states that “ signs * * * may be placed on the fronts of buildings with the consent of the owner thereof. They shall be securely fastened,” etc. It is said that under this section a duty is placed upon the owner, though he has leased the premises, to see that the signs are in fact securely fastened before he gives his consent, and to see that they are carefully maintained thereafter. We do not so construe its terms. If the city attempted to confer the right upon a stranger to erect a sign on the front of a building without consent or authority of the owner, it would to that extent deprive the owner of his property. The ordinance in question confers no new right to erect a sign. In its first sentence it merely confirms and safeguards the right, which would exist even in the absence of statute or ordinance, to erect a sign upon a building with the consent of the owner. Without consent, erection of any sign would be unlawful. The ordinance constitutes exercise by the municipal authority of the power to regulate the erection of signs which would otherwise be lawful. It applies to a person. who erects a sign with the owner’s consent; it does not expressly or by fair implication impose upon the owner the duty to see that the sign is securely erected or carefully maintained after the consent is given. An owner may lawfully part with control of his property which at that time constitutes no danger to others. The ordinance does not compel him to maintain limited control for the purpose of seeing that no nuisance is thereafter placed upon it. The erection of a sign constitutes no nuisance in itself, and consent to its erection is no authorization to do such act in wrongful manner. The ordinance recognizes the owner’s right to give or withhold consent, and imposes no new duties upon him when he exercises that right. There can be no presumption that under a consent to do an act which is lawful in itself, a tenant will act unlawfully, and the ordinance does not require a consenting owner who has leased all or part of a building to guard against abuse of his consent by a tenant who attaches a sign to the front wall of the loft leased to him. In the present case the sign was erected by the tenant, and was maintained by the tenant. If the tenant acted wrongfully after he received the owner’s consent, the mere fact that the owner gave such consent did not make her a party to that wrong.

Is there evidence that in other respects the defendant owner either took part in the wrong of the tenant or was guilty herself of some dereliction? If the defendant owner was under some .duty to inspect the manner in which the sign was placed upon the building as part of a general duty to keep the building in repair and to exercise care that it should not become a menace to those using the street on which the building abuts, and to remedy defects disclosed by such inspection, then the evidence is sufficient to permit a finding that the owner failed to comply with such duty. The duty to keep a building or part of it in repair is coextensive with the control retained by the landlord. (Jennings v. Van Schaick, 108 N. Y. 530.) Here the landlord leased separate lofts on floors in the building, retaining some control of the outer walls for the purpose of making repairs; but the sign in question fell, not because the wall was not kept in repair, but because the sign itself was negligently erected or maintained. The tenant, as we have pointed out, alone erected and alone maintained the sign, and the landlord was guilty of no breach of duty to the public in giving the tenant exclusive control of the sign. We have found no case where the duty to repair the walls of a building of which the landlord maintains control includes the duty to inspect the manner in which a sign in the exclusive control of the tenant is attached to the wall. In all cases where the landlord has been held liable for the result of negligent acts of the tenant, the landlord actually participated in some way in such negligence or by his own negligence contributed to the result. Since the plaintiff’s injuries were not in anyway caused by any defective condition of the wall itself, or by any act of the owner, or by any agency controlled, directed or set in motion by her, it seems impossible to predicate liability on her part for such injuries merely upon the fact that as the owner she was under a duty to maintain the wall itself in proper condition.

There remains only the question of whether the owner became liable for the continued maintenance of the nuisance placed upon her premises by the tenant, because she leased the entire building to Kroll & Horowitz Furniture Co., Inc., while the sign upon its front constituted a nuisance. Undoubtedly a person who has been in possession and control of premises on which a nuisance exists, and then leases or in other manner parts with control of the premises under circumstances from which inference may be drawn that he authorized its continuance or profited therefrom, may be held hable for any damages suffered by reason of the continuance of the nuisance thereafter. (Timlin v. Standard Oil Co., 126 N. Y. 514; Wilks v. New York Telephone Co., 243 N. Y. 351.) Here the owner was never in control of the nuisance and had merely a reversion in the loft in front of which the sign was placed. She had no actual knowledge that it was a nuisance, and no constructive knowledge, unless by reason of the long continuance of the dangerous condition she should, in the exercise of reasonable care, have discovered it. We have stated above our reasons for holding that while the owner was the landlord of the tenant who erected the sign, she was -under no affirmative duty to inspect the manner in which the tenant plaped the sign upon the front or maintained it thereafter. -- She was not then in control of the sign, and when she leased the entire building subject to the leases then in existence she parted with no present control of the sign, and did not voluntarily deprive herself of the power to abate a nuisance thereafter for she did not erect or maintain the nuisance, and so far as the evidence shows had not discovered its existence./íiogically no greater duty of care may be imposed liipon a landlord who is about to part with his reversion than he was under while privity of estate with the tenant continued. A landlord who parts only with a right to future control of a nuisance for which he is then not responsible, and of which he is not informed, commits no wrong to the public, and from his act no inference can arise that he either authorized its continuance or intended to profit thereby. If thereafter those in actual control of the nuisance choose to continue it, he has not by wrongful act or intendment contributed to their wrong, and may not be held for damages to others caused thereby. The judgment against the defendant Kroll & Horowitz Furniture Co., Inc., should be affirmed, with costs, and the judgment against the defendant Ruth A. Bruce-Brown should be reversed and the complaint against her dismissed, with costs in all courts.

His cock, Ch. J., Cardozo, Pound, McLaughlin and Crane, JJ., concur; Andrews, J., dissents as to defendant Ruth A. Bruce-Brown and votes for affirmance.

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    In the Matter of the Accounting of Charles P. Hidden, as Committee of the Estate of Henrietta G. Cattapani, an Incompetent Person, Appellant. Title Guarantee and Trust Company, as Administrator of the Estate of Carlo Cattapani, Deceased, et al., Respondents.
    Incompetent persons — committee — former adjudication — appeal —■ commissions — costs — judgment in action where incompetent appears by her committee and he also appears individually no bar to examination on accounting as to his conduct in action — decision on accounting, that committee has been guilty of misconduct, a finding upon that question which Court of Appeals has no power to review where unanimously affirmed prior to July 15, 1926 —■ statutory and constitutional provisions restricting jurisdiction applicable to special proceedings as well as to judgments — must be conclusively presumed that there is evidence to sustain findings — court may in proper case refuse compensation to committee —■ may direct him to pay expenses of reference and allowance to special guardian —• may not direct payment of special allowance to husband of incompetent, nor to his administrator, for expenses on appeal.
    1. A judgment in an action for the construction of a will in which an incompetent person, interested thereunder, appeared by her committee, who was also individually interested in and a party to the action, constitutes no bar, upon a subsequent accounting of the committee, to an examination of his conduct in the action, he being accused of having enriched himself therein at the expense of the incompetent whom he represented. The propriety of the committee’s conduct as' representative of the incompetent could not be litigated in that action and the adjudication of the incompetent’s rights in the estate under consideration cannot, by its nature, be conclusive upon the question whether, except for wrongful acts on the part of her committee in that action, she might not have obtained more valuable rights. The committee and the attorney selected by him might, subject to the approval of the court, bind the incompetent, but the question still remains open whether in so doing they were guilty of any wrong.
    2. Where, upon settlement of the accounts of a fiduciary, evidence of his wrongdoing is elicited, the court may determine whether he has been guilty of misconduct, though question as to it was not raised by the filing of formal objections. The decision of the court constitutes a finding upon that question and having been unanimously affirmed by the Appellate Division, the Court of Appeals is precluded from examining whether there is evidence to sustain such finding by the provisions of the Constitution (Art. 6, § 9), and of the Civil Practice Act (§ 589, subd. 3), in effect at the date of the decision of the Appellate Division, which provisions apply to special proceedings as well as to judgments, even though no formal findings are made.
    3. Nor may this court examine the record to find out whether the evidence sustains findings as to the amount of the unjust enrichment or as to the propriety of payments made by the committee to his counsel. It must be conclusively presumed as to all such findings that there is evidence.
    4. The court may, in a proper ease, refuse compensation to the committee of an incompetent person upon finding of his misconduct.
    5. And it may also direct the committee to pay the expenses of a reference and the amount of an extra allowance to the special guardian of the incompetent, which were necessarily incurred in order to establish his alleged wrongdoing. Though, under section 1381 of the Civil Practice Act, the compensation of the referee and of the special guardian must in every case be paid out of the estate, if any, for the depletion of the estate consequent upon the wrongdoing of the fiduciary, he should equitably be called upon for repayment, and since the court could order the committee to repay to the estate expenses caused by his wrong, it may reach the same result by order to pay such expense directly and thus avoid the expense becoming a charge upon the estate. The power so to do is part of the directory and supervisory control by the court of the committee appointed by it.
    6. A direction, however, to pay a special allowance to the husband of the incompetent who participated in the proceedings, is improper. The statute provides for the appointment of a special guardian to represent the incompetent and for payment of his compensation out of the estate, which should not be charged with further compensation to the husband, and,' since the estate may not be charged with such expense, the committee may not be called upon to pay it personally or in representative capacity.
    (Argued October 12, 1926;
    decided November 16, 1926.)
    7, Nor has the court power to grant an allowance to the administrator of the husband’s estate for services rendered upon appeal. Allowance to the special guardian, however, for such services was proper. The committee cannot rid himself of the liabilities incidental to the trust relation until he has paid whatever expenses were involved in determining the extent of his misconduct and in measuring the estate to be turned over to his successor.

      Matter of Hidden, 216 App. Div. 765, modified.

      Matter of Hidden, 216 App. Div. 740, reversed.

      Matter of Hidden, 216 App. Div. 740, affirmed.
    Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 15, 1926, as affirmed an order of Special Term settling the accounts of Charles P. Hidden, as committee of the estate of Henrietta G. Cattapani, as incompetent person. Also appeal, by permission, from an order of said Appellate Division, entered March 12, 1926, which affirmed an order of Special Term granting an allowance to the administrator of the estate of Carlo Cattapani for counsel fees. Also appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1926, which affirmed an order of Special Term granting an allowance to the special guardian of the incompetent.

      Charles E. Hughes, C. Alexander Capron and Levi S. Hulse for appellant.
    The judgment of the Supreme Court in Watson v. Hidden, directing payment to Mr. Hidden of ninety per cent of his legacy, cannot be re-examined in this proceeding in the absence of fraud which was neither alleged, proved nor found. (Farmers’ Loan & Trust Co. v. Lake Street El. R. R. Co., 177 U. S. 51; Thompson v.
      Maxwell Land Grant Co., 168 U. S. 451; Smith v. Central Trust Co., 154 N. Y. 333; Galpin v. Page, 18 Wall. 350; Blake & Johnson v. Lyon & Fellows M. Co., 77 N. Y. 626; Hill v. Guaranty Trust Company, 157 App. Div. 907; McMurray v. McMurray, 66 N. Y. 175; Croghan v. Livingston, 17 N. Y. 218; Crouter v. Crouter, 133 N. Y. 55; Jackson v. Brunor, 17 Misc. Rep. 339; Rook v. Dickinson, 38 Misc. Rep. 690; Jenkins v. Young, 43 Hun, 194; Matter of Becker, 28 Hun, 207.) There being no findings of the court and no pleadings with relation to the matters in controversy, this court may only presume that the facts which were warranted by the evidence were found by the lower court. . (Hutton v. Smith, 175 N. Y. 375; Amherst College v. Ritch, 151 N. Y. 282; Cons. El. Storage Co. v. Atlantic Trust Co., 161 N. Y. 605.) The court erred in surcharging the account of the appellant and in disallowing the commissions, counsel fees, etc., and in charging him personally with the various items set forth in the order. (Osborn v. Cardeza, 208 N. Y. 131; Bishop v. Hendrick, 82 Hun, 323; 146 N. Y. 398; Lurman v. Jarvie, 82 App. Div. 37; Matter of Holden, 126 N. Y. 589; Matter of City of Brooklyn, 148 N. Y. 107; Matter of State of New York, 152 App. Div. 633; 207 N. Y. 582; County of Erie v. Fridenberg, 221 N. Y. 389; Matter of Mankowski, 49 Misc. Rep. 606; Syracuse Bank v. Stokes, 71 Misc. Rep. 508; Matter of Tarrytown, etc., Railway Co., 133 App. Div. 297.) The direction contained in the orders that the counsel fees of the respondent and the allowance to the special guardian should be paid by Mr. Hidden personally, is entirely without authority to support it. (Osborn v. Cardeza, 208 N. Y. 131; Mattlage v. New York Elevated R. R. Co., 17 N. Y. Supp. 536; Bishop v. Hendrick, 82 Hun, 323; 146 N. Y. 398; Commerce Exchange National Bank v. Blye, 123 N. Y. 132.)

      N. Howard Pinto and Francis J. Clark for Title Guarantee and Trust Company, as administrator of estate of Carlo Cattapani, deceased, respondent.
    The order of affirmance of the Appellate Division having been unanimous, this court will not inquire into, much less disturb, findings of fact but will restrict itself to pure questions of' law. (Const. N. Y. art. 6, § 9; People v. Bingham, 205 N. Y. 168.) The judgment in Watson v. Hidden is not res adjudícala and was in no wise binding on the courts below. (Hill v. Guaranty Trust Company, 157 App. Div. 907; Landon v. Townshend, 129 N. Y. 166; Collins v. Hydorn, 135 N. Y. 320; Helme v. Buckelew, 229 N. Y. 363; Harris v. Pearsall, 116 Misc. Rep. 366; Matter of Yetter, 44 App. Div. 404; 162 N. Y. 615; Matter of Anderson, 211 N. Y. 136; Mehlhop v. Central Union Trust Co., 235 N. Y. 102; Erie Railroad Co. v. International Railway Co., 209 App. Div. 380; 239 N. Y. 598; McMaster v. Gould, 240 N. Y. 379.) The allowances to Carlo Cattapani, husband of the incompetent, and to the special guardian were reasonable in amount and proper in law. (People v. Bresler, 218 N. Y. 567; Fries v. N. Y. & Harlem R. R. Co., 169 N. Y. 270; Sporza v. German Savings Bank, 192 N. Y. 8; Matter of Andrews, 192 N. Y. 514; Matter of Yetter, 44 App. Div. 404; 162 N. Y. 615; Trustees v. Greenough, 105 U. S. 527; Woodruff v. N. Y., L. E. & W. R. R. Co., 129 N. Y. 27; Wetmore v. Parker, 52 N. Y. 450; Matter of Howell, 215 N. Y. 466.) The disallowance of commissions and counsel fees was proper. (Matter of Gall, 107 App. Div. 310; Matter of Rutledge, 162 N. Y. 31; Stevens v. Melcher, 152 N. Y. 551; Cook v. Lowry, 95 N. Y. 103; Matter of Allen, 96 N. Y. 327; Matter of Douglas, 60 App. Div. 64; Matter of Williamsburgh Trust Co., 72 Misc. Rep. 592; O’Reilly v. Meyer, 4 Dem. 161; Matter of Abbot, 39 Misc. Rep. 760; Matter of Jones, 4 Sandf. Ch. 615.) The allowances are proper in law. (People v. Luce, 204 N. Y. 478; Sporza v. German Savings Bank, 192 N. Y. 8; Matter of Maxwell, 218 N. Y. 88; Trustees v. Greenough, 105 U. S. 527; Woodruff v. N. Y., L. E. & W. R. R. Co., 129 N. Y. 27,
      Wetmore v. Parker, 52 N. Y. 450; Pittman v. Johnson, 35 Hun, 38; 102 N. Y. 742; Matter of Abbot, 39 Misc. Rep. 760; Matter of Jones, 4 Sandf. Ch. 615.)

      William T. Van Alstyne, special guardian, for incompetent, respondent.
    The judgment in Watson v. Hidden is not binding on the incompetent. (McMurray v. McMurray, 66 N. Y. 175; Hill v. Guarantee Trust Co., 157 App. Div. 907; Steele v. Hutton, 3 Law Bull. 99.) Hidden’s conduct as committee can only be reviewed in a proceeding to settle his accounts as committee. (Matter of Anderson, 211 N. Y. 136.) The committee should be personally charged with the expenses of this entire proceeding. (Matter of Jones, 4 Sandf. Ch. 615; Howard v. Rhodes, 1 Keen, 581; Courtenay v. Courtenay, 3 Jones & L. 529; Perry on Trusts [6th ed.], 280; Matter of Abbot, 29 Misc. Rep. 760; Matter of Gall, 107 App. Div. 310; Matter of Rutledge, 162 N. Y. 31; Stevens v. Melcher, 152 N. Y. 551; Cook v. Lowry, 95 N. Y. 103; Matter of Allen, 96 N. Y. 327; Matter of Douglas, 60 App. Div. 64; Matter of Williamsburgh Trust Co., 72 Misc. Rep. 592.)

      Harold Swain and Arthur H. Indell for Title Guarantee and Trust Company, as committee of the estate of Henrietta G. Cattapani, respondent.
    The court which appointed the appellant as the committee of the incompetent had the power and was under the duty to review all the acts of the committee upon his application for the approval of his accounts and for leave to resign. (Hill v. Guaranty Trust Co., 157 App. Div. 907; Sporza v. German Savings Bank, 192 N. Y. 8.)
   Lehman, J.

In June, 1921, Charles P. Hidden petitioned the Supreme Court in the county of New York for leave to resign as committee of the property and estate of Henrietta G. Cattapani. At the same time he asked that he be permitted to file his accounts and that they be judicially settled. An order was thereupon entered that the accounts be filed and that notice be given to the husband of the incompetent and other persons named in the order. The husband of the incompetent appeared and filed objections to the account. A special guardian was also appointed to represent the incompetent. A referee was then appointed “ to examine, take and state the third intermediate account of the said Charles P. Hidden as Committee of the Property and Estate of said Henrietta Gardner Cattapani, an incompetent person, and any objection that may be filed thereto, and take testimony in support thereof, and the said Referee is hereby further ordered and directed to examine said petitioner and take proof as to his application permitting him to resign and be discharged as such Committee.”

At the first hearing the husband of the incompetent filed objections to the accounts, and in one of these objections claimed that an item of $1,200.05 paid to the attorney for the committee is excessive and improper and should be reduced.” The voucher for this item showed that the services so paid for included “ advice and services in the case of Watson v. Hidden, Cattapani et al. and the Estate of T. B. Hidden, deceased, and securing payment of legacy under the Will of said deceased.” The special guardian, in pursuance of his duty to represent the incompetent, examined into the nature of these services and in the course of the examination he elicited certain testimony concerning the nature of the matters litigated in the case of Watson v. Hidden, and the payment of the legacy bequeathed to the incompetent under the will of Thomas B. Hidden, which has given rise to a claim that the committee has enriched himself at the expense of the incompetent whom he represented.

Briefly this testimony shows that Thomas B. Hidden died in September, 1918. Under his last will and testament and the codicils thereto, he bequeathed the sum of $500,000 to his nephew Charles P. Hidden. He bequeathed other large sums in trust for the benefit of various relatives or other persons and provided for several annuities. The will also contained some other specific legacies of small amount in proportion to the size of the estate. The decedent bequeathed the residue of the estate to certain religious and benevolent corporations, but the value of the estate at the time of the death of the testator was insufficient to provide in full for the payment of the specific legacies and annuities. The executors of the deceased paid to those entitled thereto fifty per cent of each legacy. They retained assets which were sufficient in value, if sold, to provide for further payments. The executors were unwilling to sell the remaining securities belonging to the estate, and believed that they should be held in expectation of increase in value. Apparently most of the legatees having an interest in the trust funds bequeathed under the will agreed with the executors. Charles P. Hidden, on the other hand, desired immediate distribution of the estate to the legatees either in cash, after sale of the securities, or by division of the securities. There was also some difference of opinion as to whether certain of the small legacies and the annuities were subject to abatement or should be paid in full. One of the legatees named in the will brought an action in Dutchess county for the construction of the will. That action (Watson v. Hidden) was begun in 1920. All the persons interested in the estate were named as parties. The incompetent, Mrs. Cattapani, was entitled under the will to a one-fifth interest in a bequest of $20,000, and to a life interest in a bequest of $50,000. Charles P. Hidden, because of his legacy of $500,000, was of course a party to the action individually. He was also a party as committee of the incompetent, and the incompetent was also named as a party individually. Charles P. Hidden directed his personal attorney, who had been the personal attorney of the testator, to represent the interests of the incompetent and to appear for her and her committee. He appeared by another attorney.

All parties desired that every disputed or doubtful question should be settled and determined in that action. There were discussions and negotiations between the parties, and finally most of the parties interested joined in a stipulation determining the disposition that should be made of the estate. The committee and his attorney approved of the disposition so agreed upon, but their approval was made subject to the further approval of the court. The court, after hearing a statement of the questions involved, made a decision which was in accordance with the stipulation previously made and which was apparently not opposed by any legatee. Under the judgment entered upon that decision, Charles P. Hidden individually received forty per cent of his legacy, in addition to the fifty per cent he had already received, and the smaller legacies were paid without abatement. No further immediate payment of the legacies made in trust for other parties, including the incompetent, was made at that time. The result is that Mr. Hidden individually has received ninety per cent of his legacy, while other legatees, including the incompetent whom Mr. Hidden represented as committee, have received the interest on only fifty per cent of the amount bequeathed in trust for them, except as such amount has since been increased by further payment from the estate, though it appears that eventually at least ninety per cent will be paid on these legacies also.

The referee thereafter filed his report overruling the objections filed to the account. He did not in his report undertake to determine whether Mr. Hidden had properly protected the interests of the incompetent in connection with the proceedings in the case of Watson v. Hidden. His report merely states: “ I find that the Committee acted in accordance with the judgment in that case dated July 24, 1920, and that his actions thereunder cannot be questioned in this proceeding.” The original guardian ad litem, died before the referee filed his report. The present special guardian was then appointed. He informed the court that: The conduct of the Committee of the Property in connection with the estate of Thomas B. Hidden presents an unsatisfactory condition; ” but he suggested “ in view of the probable small loss which may result to the trust fund created for the benefit of the incompetent ” and the large expense to which the estate might be put by further examination into the propriety of the committee’s conduct, that the resignation of the committee should be accepted and his accounts settled subject to certain conditions intended to safeguard the interests of the incompetent.

The justice at Special Term thought otherwise. He held that the judgment in Watson v. Hidden did not bar inquiry into the conduct of the committee in that action, and he referred the proceedings back to the same referee to take proof of the facts and circumstances concerning the action of Watson v. Hidden and the settlement thereof.

The referee took such proof and made a report in which he completely approved the conduct of Mr. Hidden. The report of the referee was not confirmed. The court took further testimony and then made an order adjudging, among other things, that the committee should pay to the incompetent the amount of interest or income which the incompetent would have received if the same distribution had been made upon the legacy in trust for her as was made upon the legacy of Mr. Hidden; that certain payments made by the committee for counsel fees and other expenses should be reduced or disallowed; that no commissions or compensation should be allowed to the committee; and that the costs and expenses of* the second reference and counsel fees allowed to both the husband and the special guardian of the incompetent should be paid by the committee personally. The Appellate Division', has by its unanimous decision affirmed the order.

No formal decision embodying findings of fact and conclusions of law was made by the justice at Special Term. Basis for the provisions of the order can be found, if at all, only in a finding that Mr. Hidden as committee of the incompetent failed in his duty to the incompetent when, pursuant to the terms of the judgment in Watson v. Hidden, he received and accepted distribution of an additional forty per cent upon his legacy, and did not obtain a similar distribution upon the legacy made in trust for the incompetent. No other question was litigated upon the second reference or considered by the court upon the motion to confirm the report, of the referee, and the opinion of the justice at Special Term states the reasons why he decided this issue against the committee. The committee now claims that, since the judgment in the case of Watson v. Hidden has fixed the amount and time of the payments upon both his legacy and the legacy in trust for the incompetent, the propriety of the committee’s acts in receivir p and accepting such payments may not be questioned in any other legal proceedings. The committee claims even more insistently that if the propriety of his acts may be questioned, the evidence conclusively establishes that he lias faithfully performed the duties imposed upon him by his position and sedulously safeguarded the interests of the incompetent.

The judgment of Watson v. Hidden constitutes no bar to the examination of the committee’s conduct which the court at Special Term has made. The incompetent was a party to that proceeding and was represented by the committee and by an attorney chosen for hex by the committee. Doubtless adjudication in regard to any matter which was ot could be litigated in that action between the parties thereto would be conclusive thereafter in all proceedings between the same parties, but it seems too plain for argument that there could be no litigation and hence no conclusive adjudication as to the propriety of the committee’s conduct in an action where the incompetent can appear only through the committee or the attorney selected by the committee and the committee is a party to the action only as the representative of the incompetent. Doubtless the judgment in Watson v. Hidden would be conclusive as to a claim by the incompetent against the executors of the estate of Thomas B. Hidden that they should not have made larger payments upon the legacy to Charles P. Hidden than upon the legacy in trust for her. Argument may be made that it would be conclusive as to a claim which the incompetent might make as legatee against Charles P. Hidden as an individual because of the receipt and acceptance of such payment upon his own legacy, but here the claim made on behalf of the incompetent is that the committee did not properly represent her in the litigation, and because he did not represent her properly he obtained as an individual a judgment which gives to him advantages to which she was equally entitled. The propriety of the committee’s conduct as representative of the incompetent could not be 'litigated in that action and the adjudication of the incompetent’s rights in the administration of the estate of Thomas P. Hidden can by its very nature not be conclusive upon the question whether, except for wrongful acts on the part of her committee in that action, she might not have obtained inore valuable rights. The committee and the attorney selected by him might, subject to the approval of the court, bind the incompetent, but the question still remains open whether in so doing they were guilty of any wrong to the incompetent.

The court at Special Term has held that the committee did act wrongfully, and that through the judgment so obtained the committee has enriched himself at the expense of the incompetent. Perhaps if we had the right to determine the question ourselves, some of us flight reach a different conclusion. The justice at Special Term has stated in his opinion that there is no evidence ;bf personal dishonesty against the committee.” We have /pointed out that Charles P. Hidden as an individual .«has, pursuant to judgment of the Supreme Court, obtained «payment of a larger proportion of the legacy left to him ras an individual than the payment he has insisted, as committee of the incompetent, should be made upon the „ legacy in trust for the incompetent. We shall not point .out in detail the circumstances which led the court which rendered judgment in Watson v. Hidden to determine that such result was just and in the best interests of the incompetent. These circumstances may have led the committee and his counsel in good faith to the same conclusion. Determination of the question before us ■requires no analysis of evidence or weighing of the considerations which may have led to the action taken by the committee in behalf of the incompetent. The standards of conduct which the courts apply to persons who act as committee are very high. Self-interest, even unconscious, may not dictate their actions. The referee who heard and weighed the testimony reported that the committee had not fallen below those standards. The justice at Special Term reached an opposite conclusion. The ppellate Division has unanimously affirmed his decision. Perhaps men might reasonably differ as to whether that < decision was justified. We may not consider such question.

Undoubtedly the court may, upon the settlement of the accounts of a fiduciary, determine whether the fiduciary has been guilty of misconduct and whether his accounts are correct, where evidence of wrongdoing is elicited by examinat, on of the fiduciary; Tough previously such wrongdoing wa,', not known and question as to it was not raised by the filing of formal objections, Sack question was the only one litigated upon the second reference and was the principal question considered by the court. The justice at Special Term had jurisdiction to determine this question, and his decision constitutes a finding upon that question. The provisions of the Constitution and of the Civil Practice Act, which stiifi apply to the review of the order before us, preclude u:g from examining whether there is evidence to sustain such finding after it has been unanimously affirmed by thé Appellate Division. (People ex rel. Stephenson v. Bingham, 205 N. Y. 168, and cases there cited.) These pro-r visions apply to orders in special proceedings as well as to judgments, even though no formal findings are made. (See opinion of Cullen, Ch. J., in Matter of City of New York, 200 N. Y. 536.) The rule has never been limited to cases where the issue is raised by pleadings or through formal objections. It applies in every case where a court actually determines a disputed question of fact. !

When the court found that the committee had enriched' himself at the expense of the incompetent, it was bound to determine the amount of such unjust enrichment, That determination again must be based upon the evidence and constitutes a finding of fact, correct or erroneous in law, according to whether or not it is sustained by the evidence. That question also we may not review. These same considerations apply to the question of whether the accounts of the committee may be surcharged by payments made to his counsel or committee. If not justified by circumstances the committee had no right to make them. This court may not examine the record to find out whether the evidence sustains a finding that under the circumstances of the present case such payment was not justified. We must conclusively presume as to all such findings that there is each evidence.

Two questions of law still rem/m subject to review by' 'this "eoiii’t.: First. Did the court have power to deprive the committee of compensation for his services? Second. Did the court have power to direct the committee to pay the expenses of the second reference and special allowances to the special guardian and to the husband of the incompetent? We begin consideration of both these questions with the premise that the court has made the prehminary finding that the committee has acted wrongfully.

Section 1376 of the Civil Practice Act provides that A committee of the property is entitled to the same compensation as an executor, administrator or testamentary trustee.” The statute does not expressly vest in the court any discretion as to whether such committee shall receive the statutory compensation, and this court has never expressly held that such discretion is implied. Nevertheless it seems anomalous that the estate of an incompetent must in every case pay compensation to a committee, though the court has found that the committee has not been faithful to his trust. Accordingly this court held in Matter of Rutledge (162 N. Y. 31) that even under the provision of the Code that “ on the settlement of the account of an executor or administrator, the surrogate must allowtohim for Ms services,” etc., the mandatory language does not exclude discretion in the surrogate to refuse to allow compensation where “ the services were such as were prejudicial to the just and lawful admirnstration of the estate.” No valid distinction may be made between the rights of an executor or admimstrator and the rights of a committee to the statutory compensation. In both cases the court may in a proper case refuse such compensation, upon finding of misconduct by the fiduciary.

The question of whether the court had power to direct the committee to pay the expenses of the reference and the extra allowances presents greater difficulty. No power to impose costs personally against the committee except in direct proceedings for Ms removal has been given by statute. Indeed, the statute provides that upon the settlement of the accounts of the committee, “ the compensation of the referee and of the special guardian appointed under the provisions of this section shall in every instance be fixed by the court to be paid out of the estate, if any, of the incompetent person.” (Civ. Prac. Act, section 1381.) Costs are the creature of statute, and no statute can be found which would empower the court to impose payment of these expenses and allowances as costs. This part of the order may, therefore, be sustained only if the court has inherent power to direct the committee to pay the expenses necessarily and properly incurred in securing the restitution of moneys withheld by the committee.

The committee is appointed by the court and answerable to it for the proper administration of his trust. The second reference was necessary to establish the alleged wrongdoing of the committee. If the estate must pay the expenses of that reference, the incompetent has only incomplete remedy for wrong suffered. The loss to the estate which the incompetent has suffered and the expense, of the legal proceedings necessary to secure restitution are both the direct results of the acts of the committee which the court has found were wrongful. For the direct results of wrong found, a delinquent fiduciary may be held accountable. That is indeed the purpose of the accounting. Though under the statute the compensation of the referee and of the special guardian must in every case be paid out of the estate, if any, it may hardly be doubted that for the depletion of the estate consequent upon the wrongdoing of the fiduciary, the fiduciary should equitably be called upon for repayment. Though direct precedent for the exercise of such power may be wanting, the power is part of the directory and supervisory control by the court of the committee appointed by it. Since the court could order the committee to repay to the estate expenses caused by his wrong, it may reach the same result by order to the committee to pay such expense directly and thus avoid the expense becoming a charge upon the estate. The court might, therefore, include in its order a direction to the committee to pay the expenses of the second reference, including the compensation of the special guardian, which were necessarily incurred in order to establish the alleged wrongdoing of the committee and to secure reparation for such wrongs.

The direction to pay the special allowance to the husband of the incompetent rests on weaker foundation. The husband of the incompetent is entitled to notice of the filing of the account and the application for the judicial settlement thereof. (Civ. Prac. Act, sections 1360, 1381.) He is a party to the proceedings and may file objections to the account if he sees fit; but, at least after the appointment of the special guardian, he does not represent the wife, and if he continues to participate in the proceedings he does so merely as a party who has a personal interest, pecuniary or otherwise, in the outcome. His participation in the proceedings in this case may have contributed to the restoration of property to the incompetent, but it does not follow that he is entitled to be paid out of such property the value of his services or the services of his attorney. That property when restored belonged to the incompetent and not to the husband, though if he had survived his wife, he might eventually have received as part of her estate any portion of the income which had not then been expended. Parties who are trustees of a fund or have an interest therein in common with others are, it seems, entitled to reason-, able allowances for costs and expenses incurred in the protection of that fund out of property secured or protected by their efforts. (Woodruff v. N. Y., L. E. & W. R. R. Co,, 129 N. Y. 27; Trustees v. Greenough, 105 U. S. 527.) That rule, however, has no application to the present case where the property recovered belongs to the incompetent, and her husband has no interest therein, in common with her, which he was called upon to protect. The statute provides for the appointment of special guardian to represent the incompetent, and his compensation must be paid out of the estate. The estate should not be charged with further compensation to the husband, and since the estate may not be charged with such expense, the committee may not be called upon to pay it personally or in representative capacity. The order appealed from should be modified by striking out the direction for the payment by Charles P. Hidden personally of special allowance and disbursements to Carlo Cattapani, amounting to $2,608.

After the Appellate Division had affirmed the order of the Special Term, the special guardian of the incompetent and the administrator of the estate of Carlo Cattapani moved for an allowance for counsel fees in connection with the preparation for and argument of the appeal. Their motions were granted and orders were entered allowing to the administrator the sum of $800 and to the special guardian the sum of $750, both to be paid by Charles P. Hidden personally. These orders were affirmed on appeal to the Appellate Division, and Mr. Hidden now appeals from them to this court. Of course, since the court has no power to grant an allowance to the husband of the incompetent for services rendered in the original proceeding, it certainly may not grant an allowance to the administrator of his estate for services rendered upon the appeal. A majority of this court are of the opinion that allowance to the special guardian for services in connection with the preparation and argument of the appeal was properly granted.

We hold that though at that time Mr. Hidden was no longer a trustee, he would not rid himself of the liabilities incidental to the trust relation until he had paid whatever expenses were involved in determining the extent of his misconduct and in measuring the estate to be turned over to his successor. The liability could not depend upon the precise moment of time when the words “ you are removed ” were uttered, whether after the accounting or before it.

What is true of expenses in the court of first instance must be true, and for like reasons, of expenses on appeal. The appeal is a continuation or extension of the proceeding in the court below. (Nations v. Johnson, 24 How. [U. S.] 195, 205; Clarke v. Mathewson, 12 Pet. [U. S.] 164, 170.) The loss resulting to the trust from the wrong of the trustee is as much a personal charge in the one court as in the other.

If a trustee removed, but required to account thereafter, must pay the cost of an accounting, so also must a trustee who has been permitted to resign.

The order settling the accounts of the committee should be modified in accordance with the opinion and as so modified affirmed, without costs; the order making special allowance on appeal to the administrator of the estate of Carlo Cattapani should be reversed, with costs, and the order granting special allowance to special guardian affirmed, with costs.

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

Ordered accordingly.


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v. Charles Youlio, Respondent.
    (Argued March 30, 1926;
    decided May 25, 1926.)

      Crimes •— assault ■ — • refusal of entire request to charge proper where erroneous in part — possible erroneous reception of evidence of plea of guilty on arraignment disregarded in view of other statements of defendant.

    1. A refusal to charge, in a criminal trial, that it is for the jury to determine whether two witnesses for the People were accomplices is proper where there would be no justification for such a finding as to one of them.
    2. Assuming that evidence of a plea of guilty by defendant on arraignment was improperly received- for the reason that he had not been informed of his rights before being asked to plead, in view of other statements voluntarily made by defendant upon the arraignment of his alleged associates, the error may be disregarded.

      People v. Youlio, 214 App. Div. 793, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 23, 1925, which reversed a judgment of the Orange County Court convicting thé defendant of the crime of assault in the second degree and granted a new trial.

      Elmer H. Lemon, District Attorney, for appellant.

      Henry Hirschberg for respondent.
   Per Curiam.

The defendant was convicted in the County Court of Orange county of the crime of assault in the second degree. The judgment thereafter entered was reversed by the Appellate Division — not on the facts which were amply sufficient to justify the verdict — but for two alleged errors of the trial court.

1. The trial judge was requested to charge the jury that it was for them to determine on all the facts in the case whether or not the People’s witnesses Smith and Feo were accomplices in the alleged assault; if so, their testimony required corroboration. There was a refusal and an exception. Whatever may be said of Feo, there would be no justification for such a finding as to Smith. Therefore the request was properly refused.

2. The defendant was arraigned before the recorder of the city of Newburgh and was held to await the action of the grand jury. Without being informed of his rights he was asked to plead and he pleaded guilty. Evidence to this effect was given by the recorder over objection and exception. It is said that this was error. Assuming this to be so, in view of other statements voluntarily made by the defendant upon the arraignment of his alleged associates, the error, if such there was, may well be disregarded.

The order of the Appellate Division should be reversed and the judgment of the County Court affirmed.

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

Judgment accordingly.


text:
    Lydia M. Webster, Individually and as Executrix of Mary A. Webster, Deceased, Respondent, v. Charles J. Webster et al., Defendants, and Henrietta S. Webster et al., Appellants.
    (Argued May 12, 1926;
    decided May 25, 1926.)

      Appeal — partition — interlocutory judgment of sale —■ appeal without permission dismissed where judgment had no element of finality as to appellant.

    An appeal, without permission, from a judgment of the Appellate Division which modifies, in minor details, an interlocutory judgment of sale in partition but has no element of finality as to the appellant should be dismissed.

      Webster v. Webster, 214 App. Div. 806, appeal dismissed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered September 11, 1925, modifying and affirming as modified an interlocutory judgment of sale in partition, entered upon a decision of the court on trial at Special Term.

      James M. Gorman, W. F. Cassidy and Solomon Pearlman for appellants.

      Joseph W. Gott for plaintiff, respondent.

      W. T. Snider and Henry W. Chadeayne for defendants, respondents.
   Per Curiam.

The interlocutory judgment of sale in partition was modified in minor details by the Appellate Division.

The question is whether it is appealable as a final judgment. The notice of appeal states that it brings up for review said judgment as an interlocutory judgment. Plainly it is an interlocutory judgment.

Appellant Libbie Traktman, who claims title from Henrietta Sarah Webster, is found to be entitled to a one-seventh interest in ten or more separate parcels of real estate. As to one parcel only she claims to be the owner, in fee. The courts below have found against her but she has not been held to have no interest therein. It has no element of finality as to her. (Brown v. Feek, 204 N. Y. 238; Albany Hospital v. Albany Guardian Society, 214 N. Y. 435; Sinclair v. Purdy, 235 N. Y. 245; Matter of City of N. Y. [Staten Island Proceeding], 237 N. Y. 275.)

The appeal should be dismissed, with costs.

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

Appeal dismissed.


text:
    In the Matter of the Application of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property on Upper New York Bay in the Borough of Richmond. Staten Island Railway Company et al., Respondents and Appellants.
    (Argued May 24, 1926;
    decided May 25, 1926.)

      Appeal — condemnation proceedings — no appeal to Court of Appeals from order of Appellate Division modifying interlocutory order deciding questions of title, except on certified questions.

    Where no final judgment has been entered, the Court of Appeals has no jurisdiction to hear an appeal from an order of the Appellate Division modifying an order of Special Term deciding questions of title in condemnation proceedings, except on certified questions, but the order may be brought up for review on appeal from the final judgment. (Matter of City of New York [Staten Island Proceeding], 237 N. T. 275, distinguished.)

      Matter of City of New York (Upper New York Bay), 215 App. Div. 438, appeal dismissed.
    Cross-appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 25, 1926, which modified and affirmed as modified an order of Special Term dismissing, in condemnation proceedings, a claim of the city of New York of title to certain lands under water.

      George P. Nicholson, Corporation Counsel (Henry W. Mayo of counsel), for City of New York, appellant and respondent.

      A. S. Gilbert and R. E. T. Riggs for Staten Island Railway Company et al., respondents and appellants.
   Per Curiam.

This is a condemnation proceeding instituted by the city of New York to acquire lands for harbor purposes. As to land under water within certain street lines projected, the city and the railroads both claim to own the fee. These lands are only a portion of the damage parcels. Issues of title as to conflicting claims were tried before the Special Term. At the conclusion of the trial on the question of title it was held that the property in controversy was owned in fee by the railroad companies and that the city of New York had no right, title or interest therein. The court then proceeded to the trial of questions of value. No final judgment was then entered but an order was entered on the question of title only. On appeal therefrom, the Appellate Division modified the order and held that the city had certain easements and right of use for street purposes. From this order both parties have appealed to this court, as of right, claiming that the order is a final order.

The situation is entirely different from the Symes Foundation appeal which involved the title to all the lands herein condemned. (Matter of City of N. Y. [Staten Island Proceeding], 237 N. Y. 275.) The Symes Foundation claimed to be the owner of the lands. The Special Term dismissed this claim. It was held that this issue of title might be severed and the Symes claim disposed of separately. As to the claim of the Symes Foundation the order was held to be final because it terminated all right of the Symes Foundation and dismissed it from the proceeding. Here the city is the petitioner. It remains in the proceeding to the end to have the value of as well as the • title to the property taken by it determined. The order is plainly an intermediate order and can be nothing else.

It is of no consequence in this connection whether the city has title in fee to, a right of way over, or no interest in the lands in controversy. It is not let out of the proceeding. The final judgment will dispose of all questions of title and value. The court has no jurisdiction to hear this appeal except on certified questions from the Appellate Division, but the order may be brought up for review on appeal from the final judgment.

The appeals should be dismissed,without costs.

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

Appeals dismissed.


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. Second Russian Insurance Company, Appellant.
    (Argued May 3, 1926;
    decided May 25, 1926.)

      Insurance — corporations ■ — ■ order directing liquidation of business in this State of foreign insurance corporation.

      Matter of People (Second Russian Ins. Co.), 215 App. Div. 796, affirmed.
    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 directing liquidation of the business of the Second Russian Insurance Company, a foreign corporation, pursuant to the provisions of section 63 of the Insurance Law. It was alleged that the Second Russian Insurance Company is insolvent; that it is in such a condition that its further transaction of business will be hazardous to its policyholders, creditors, and the public; that its property has been sequestrated; that it has willfully violated its charter and laws of the State; that it has been placed in the hands of a receiver; and that its United States branch is in a hazardous condition.
    Order affirmed, with costs, under the provisions of subdivision 1-e of section 63 of the Insurance Law;

      Samuel Seabury, Wendell P. Barker, William H. Harding and Daniel A. Dorsey for appellant.

      Albert Oitinger, Attorney-General (Clarence C. Fowler and John C. H. Flynn of counsel), for respondent.

      David Bumsey and Louis J. Wolff for Fred S. James & Co., amicus curiae.

   no opinion.

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


text:
    Marc Klaw, Suing on Behalf of Himself and Others, Stockholders of Forsix Theatre Company, Appellant, v. Abraham L. Erlanger et al., Respondents.
    (Argued May 4, 1926;
    decided May 25, 1926.)

      Corporations — officers — directors ■— stockholder’s action to compel president and director of corporation to account for destroyed assets.

      Klaw v. Erlanger, 215 App. Div. 702, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 24, 1925, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was brought by the plaintiff as a stockholder of the respondent company to compel the individual respondent, Erlanger, the president and a director of the said company, to account to the corporation for his acts whereby, it was alleged, a valuable lease, the sole asset of the company, was destroyed.
    Judgment affirmed, with costs;

      Clarence J. Shearn for appellant.

      Nathan L. Miller and Roscoe T. Holt for respondent.
   no opinion.

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


text:
    Raymond D. Little, as Administrator of the Estate of Eugene D. Little, Deceased, Respondent, v. John E. Cowdin, Appellant, Impleaded with Another.
    (Argued May 5, 1926;
    decided May 25, 1926.)

      Negligence — motor vehicles ■— action for death resulting from collision of automobile.

      Little v. Cowdin, 214 App. Div. 736, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Intestate was killed as the result of a collision between an automobile which he was driving and two others, one driven by the servant of defendant, appellant, and the other driven by a defendant, as to whom the complaint was dismissed at the close of the evidence.
    Judgment affirmed, with costs;

      John Bright and Joseph F. Mann for appellant.

      Morton Lexow for respondent.
   no opinion.

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


text:
    Brina Applebaum, Appellant, v. Abraham Goldstein, Respondent.
    (Argued May 5, 1926;
    decided May 25, 1926.)

      Negligence — motor vehicles — action to recover for injury resulting from collision of automobile in which plaintiff was riding with parked car.

      Applebaum v. Goldstein, 215 App. Div. 756, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department entered November 30, 1925, affirming a judgment in favor of defendant entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while riding as a guest in defendant’s automobile which was being driven by his daughter was injured as the result of a collision .with a parked car.
    Judgment affirmed, with costs;

      J ames M. E. 0’Grady for appellant.

      Carlton Shaw and David B. Sugarman for respondent.
   no opinion.

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


text:
    James J. Patane, Appellant, v. United Traction Company, Respondent.
    (Argued May 6, 1926;
    decided May 25, 1926.)

      Negligence — motor vehicles — motor truck damaged by collision with trolley car — contributory negligence of driver.

      Patañe v. United Traction Co., 213 App. Div. 537, affirmed.
    Appeal from a judgment, entered July 17, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was brought to recover damages to an automobile truck owned by plaintiff as the result of a collision with a trolley car of the defendant at the intersection of Western avenue and Euclid avenue, in the city of Albany. It appeared that the accident happened in the daytime and that the driver of the truck could see the car approaching when thirty feet from the track. He testified that he was looking all the while and thought he had plenty of time. The Appellate Division held him to be guilty of contributory negligence.
    Judgment affirmed, with costs;

      Henry J. Crawford for appellant.

      J. Stanley Carter and Charles P. Jones for respondent.
   no opinion.

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

Dissenting: Crane, J. Absent: Andrews, J.


text:
    Tuttle Corporation, Appellant, v. The Pennsylvania Railroad Company, Respondent.
    (Argued May 6, 1926;
    decided May 25, 1926.)

      Conversion — carriers — trial —• action to recover for alleged conversion of coal delivered to railroad for transportation — dismissal of complaint on it appearing that coal had been diverted in accordance with rules of association of which plaintiff was member but similar quantity and quality of coal delivered to it — right of plaintiff to ghow value of coal in proof of damage.

      Tuttle Corp. v. Pennsylvania R. R. Co., 215 App. Div. 767, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover for the alleged conversion of twenty-eight carloads of coal, delivered by plaintiff to defendant for transportation from Scully Scales, Penn., to Philadelphia. The complaint was dismissed because it appeared that plaintiff was a member of a tidewater coal exchange and in accordance with its rules the coal shipped had been diverted and delivered to another member while a similar quantity and quality of coal was delivered to and received by plaintiff at the time and place for delivery. Plaintiff contended that the dismissal of the complaint was erroneous because thereby he was denied a right, which he had reserved, to show the value of the coal in proof of damage.
    Judgment affirmed, with costs;

      E. Crosby Kindleberger and Hamilton Rogers for appellant.

      Harold L. Allen for respondent.
   no opinion.

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


text:
    Bernis W. Stone, Appellant, v. Commonwealth Finance Corporation, Respondent.
    (Argued May 7, 1926;
    decided May 25, 1926.)

      Contract — guaranty — action to recover upon alleged contract of guaranty — complaint dismissed.

      Stone v. Commonwealth Finance Corp., 215 App. Div. 704, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court 'in the first judicial department, entered February 11, 1926, which affirmed a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for a dismissal of the amended complaint upon the ground that it failed to state facts sufficient to constitute a cause of action. The action is brought by the assignee of claimants against an exposition company for damages arising out of failure of the company to establish and operate an exposition in accordance with its contracts with the claimants. Liability of defendant is predicated upon the following letter, whereby it was claimed defendant guaranteed performance by the exposition company of its obligations and obligated itself for the benefit of proposed exhibitors, to give financial support to the exposition company:
    “ American National Expositions, Inc.,
    Bush Terminal Building,
    New York City, N. Y.
    “ Gentlemen.— We are informed that you have had inquiries as to your financial backing and responsibility. We wish to state that this Exposition Company is owned and controlled by one of our subsidiary Companies, and that we are giving it our full co-operation and support, and are ready to place our resources behind this project to the extent that may be necessary to insure its complete success.
    “We are doing this in the belief that the expansion of American trade to foreign markets, particularly to our sister republics in South and Central America, is of the greatest importance both to American Manufacturers and Latin-American consumers, and because we believe that a great and dignified Exposition such as is now in process of preparation will be a real influence in bringing such manufacturers and consumers together.
    “ You are at liberty to use this information in such way
    as you deem best. ((Tr , , J

    ((Tr , J very truly yours,
    “ HENRY D. TUDOR,

      “President

      “ Commonwealth Finance Corporation."

    Judgment affirmed, with costs;

      William F. Unger for appellant.

      Mark W. Norman for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Dominick Ponessa, Appellant.
    (Argued May 7, 1926;
    decided May 25, 1926.)

      Crimes — bigamy — judgment of conviction affirmed.

      People v. Ponessa, 216 App. Div. 771, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 5, 1926, which affirmed a judgment of the Orange County Court rendered upon a verdict convicting the defendant of the crime of bigamy.
    Judgment affirmed;

      Henry Hirschberg for appellant.

      Elmer H. Lemon, District Attorney, for respondent.
   no opinion. •

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


text:
    Carson Petroleum Company, Appellant, v. Union Commercials Des Petroles et al., Defendants, and Harold Moorcroft, Respondent.
    (Argued May 7, 1926;
    decided May 25, 1926.)

      Contract — guaranty — Statute of Frauds — action to recover upon alleged contract of guaranty— defenses of Statute of Frauds and failure of consideration.

      Carson Petroleum Co. v. Union Commercials Des Petroles, 215 App. Div. 385, affirmed.
    Appeal from a judgment, entered February 11, 1926, 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 defendant-respondent for a dismissal as to him of the amended complaint and granted said motion. The complaint alleged causes of action against defendant-respondent based upon an alleged guaranty of a draft drawn by plaintiff on defendant Union Commerciale Des Petroles, and upon an alleged guaranty of the purchase price of merchandise sold and delivered by plaintiff to said defendant. The defenses were the Statute of Frauds, in that the causes of action were upon oral special promises to answer for the debt, default or miscarriage of another, and also a failure of consideration for said promises.
    Judgment affirmed, with costs;

      Robert S. Sloan for appellant.

      Harold T. Edwards for respondent.
   no opinion.

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


text:
    George R. Martin, an Infant, by James W. Martin, His Guardian ad Litem, Respondent, v. The City of New York, Appellant. James W. Martin, Respondent, v. The City of New York, Appellant.
    (Argued May 7, 1926;
    decided May 25, 1926.)

      Negligence — streets— New ’ York city — municipal corporations — action to recover for personal injuries from fall caused by catching foot in hole in sidewalk.

      Martin v. City of New York (2 eases), 215 App. Div. 405, affirmed.
    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 February 17, 1926, 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 action, by the father of the plaintiff in the first, was to recover for expense and loss of services arising from such injuries. The infant plaintiff, about ten years eight months old, while playing tag with other boys in One Hundred and Fifty-second street, borough of The Bronx, city of New York, ran up on the sidewalk, about 115 feet west of Melrose avenue, when his left foot went into a hole, causing him to lose his balance and trip or fall over a pipe sticking up out of the sidewalk, throwing him into an excavation at the side of the walk and causing the injuries complained of,

      Judgment in each case affirmed, with costs;

      George P. Nicholson, Corporation Counsel (John P. O’Brien, Elliot S. Benedict and Charles C. Marrin of counsel), for appellant.

      Martin E. Burke and Samuel F. Moran for respondent.
   no opinion.

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

Dissenting: McLaughlin, J. Absent: Andrews, J.


text:
    The People of the State of New York, Respondent, v. Sam Wing, Appellant.
    (Argued May 10, 1926;
    decided May 25, 1926.)

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

    Appeal from a judgment of the Supreme Court rendered October 26, 1925, at a Trial Term for the county of Kings upon a verdict convicting' the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Robert S. Johnstone, Stanley L. Richter, Elmer F. Quinn and Robert H. Elder for appellant.

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

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


text:
    Daniel J. Jennings et al., Respondents, v. Jennie Baumann et al., as Executrices of Mary Baumann, Deceased, Appellants.
    (Argued May 10, 1926;
    decided May 25, 1926.)

      Vendor and purchaser — real property — title — encroachment — title to real properly unmarketable by reason of encroachments in street.

      Jennings v. Baumann, 214 App. Div. 361, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 6, 1925, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. The action was to recover an amount paid upon a contract to purchase real property together with the amount of expenses of examining title, it being alleged that the title was unmarketable by reason of certain encroachments and projections of the building into the street.
    Judgment affirmed, with costs;

      Lynn C. Norris and Edward M. Perry for appellants.

      Frank Harvey Field and Henry Booth Moore for respondents.
   no opinion.

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


text:
    James M. Lynch, Respondent, v. 114 West 70th Street Corporation, Appellant, Impleaded with Another.
    (Argued May 11, 1926;
    decided May 25, 1926.)

      Negligence — building construction — failure to properly guard or light elevator shaft— action to recover for injuries from fall into shaft.

      Lynch v. 114 West 70th Street Corp., 215 App. Div. 808, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 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, a workman in a building in the course of construction, fell through an elevator opening and received the injuries complained of. It was alleged that defendant, appellant, the owner of the building, had negligently failed to guard or protect the opening or properly light the same.
    Judgment affirmed, with costs;

      Frederick Mellor and Richard F. Weeks for appellant.

      Charles Kennedy and Leonard F. Fish for respondent.
   no opinion.

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


text:
    Michael Palencia, Respondent, v. Munson Steamship Line et al., Appellants.
    (Argued May 11, 1926;
    decided June 1, 1926.)

      Negligence — ships and shipping — master and servant — stevedore injured from fall occasioned by slipping on oil permitted to accumulate and remain, after notice, on deck of vessel ■ — ■ contributory negligence.

      Palencia v. Munson S. S. Line, 216 App. Div. 727, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 17, 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 defendants. Plaintiff, a stevedore, employed by defendant Chiarello Stevedoring Co., Inc., while engaged in moving cargo on one of defendant Munson Steamship Line’s steamships, slipped on some oil, which had been permitted to accumulate and remain upon the deck, although both his own foreman and an officer of the vessel had been notified thereof, and faffing received the injuries complained of. The defense was contributory negligence.
    Judgment affirmed, with costs;

      Theodore H. Lord, Walter G. Evans and Grattan B. Shults for Munson Steamship Line, appellant.

      Alfred T. Tompkins, J. Arthur Hilton and Robert H. Woody for Chiarello Stevedoring Co., Inc., appellant.

      Jas. A. Gray, Wm. S. Butler and Alexander Dolins for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Giuseppe Friia, Appellant.
    (Argued May 12, 1926;
    decided June 1, 1926.)

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

    Appeal from a judgment of the Supreme Court rendered February 25, 1926, at a Trial Term for the county

      of Monroe, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Andrew R. Sutherland for appellant.

      William F. Love, District Attorney, for respondent.
   no opinion.

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


text:
    Hyman Kaminsky, an Infant, by David Kaminsky, His Guardian ad Litem, Respondent, v. United States Trucking Corporation, Appellant.
    (Argued May 12, 1926;
    decided June 1, 1926.)

      Negligence — motor vehicles — child, non sui juris, struck by motor truck while standing in street — action to recover for injuries — defense of contributory negligence.

      Kaminsky v. U. S. Trucking Corp., 216 App. Div. 701, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 15, 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, a child between three and four years old, while standing in the roadway of Monroe street in the city of New York, was struck by one of defendant’s motor trucks and received the injuries complained of. The defense was contributory negligence on the part of the mother of the plaintiff in permitting him to go unattended onto the street.
    Judgment affirmed, with costs;

      Theodore H. Lord and Patrick J. McGrath for appellant.

      Harold R. Medina, Moses Feltenstein and David Steckler for respondent.
   no opinion.

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


text:
    Spotswood D. Bowers, Appellant, v. Fifth Avenue and Seventy-seventh Street Corporation, Respondent.
    (Argued May 13, 1926;
    decided June 1, 1926.)

      Beal property — covenants — action to restrain erection of apartment house on ground of violation of covenant restricting building to “ ordinary first class dwelling.”

      Bowers v. Fifth Ave. & 77th St. Corp., 215 App. Div. 764, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 11, 1925, unanimously affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The action was brought to restrain the defendant from erecting a fourteen-story apartment house on a plot of land on the southeast corner of Fifth avenue and Seventy-seventh street in the borough of Manhattan, immediately adjoining land owned by the plaintiff, on the ground that the erection of such a building would be a violation of a restrictive covenant applying to both parcels providing that no buildings other than “ ordinary first class dwellings ” should be erected on the land. The trial court held that the apartment house to be erected is.an ordinary first class dwelling within the meaning of the covenant.
    Judgment affirmed, with costs;

      Frank C. Laughlin and Stewart W. Bowers for appellant.

      Charles E. Hughes, Philip S. Dean and George M. Welch for respondent.
   no opinion.

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


text:
    Perley Morse et al., Copartners, under the Firm Name of Perley Morse & Company, Respondents, v. World Mutual Automobile Casualty Insurance Company, Inc., Appellant.
    (Argued May 13, 1926;
    decided June 1, 1926.)

      Contract — services ■ — ■ action to recover for services alleged to have been rendered —• defense that charges were unreasonable.

      Morse v. World Mutual Automobile Casualty Ins. Co., Inc., 213 App. Div. 830, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 13, 1925, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict. The action was brought to recover a sum alleged by the plaintiffs to be a balance due as the agreed and reasonable value of work and professional services rendered by the plaintiffs as certified public accountants, between January 6, 1923, and August 7, 1923, for the defendant, an insurance corporation organized and existing under the laws of the State of New York. The answer denied the indebtedness and for a separate and distinct defense alleged that plaintiffs represented and warranted to the defendant that they were experts in insurance accounting and that they could do defendant’s work with dispatch; that defendant in reliance upon the said representation and warranties employed plaintiffs to do the work but that the work was performed by plaintiffs improperly, tardily, recklessly and carelessly and that plaintiffs had in fact no knowledge of the principles of insurance accounting and that, therefore, the charges made by plaintiffs for the work performed were unjust and unreasonable.
    Judgment affirmed, with costs;

      Alfred C. Bennett and Clarence C. Fowler for appellant.

      Spotswood D. Bowers, Joseph W. Kirkpatrick and Stewart W. Bowers for respondents.
   no opinion.

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


text:
    Peter Smith, Appellant, v. Sophie Smith, Respondent.
    (Submitted May 14, 1926;
    decided June 1, 1926.)

      Husband and wife — divorce —• action by husband for absolute divorce — defense of condonation.

      Smith v. Smith, 214 App. Div. 717, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1925, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action, husband against wife, for an absolute divorce. The trial court held that there had been condonation by the husband of the wife’s misconduct.
    Judgment affirmed, with costs;

      Jacob 0. Bilder for appellant.

      Benjamin T. Cooke for respondent.
   no opinion.

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


text:
    George A. Noble, Appellant, v. William C. Higgins et al., Respondents.
    (Argued May 14, 1926;
    decided June 1, 1926.)

      Contract — option — specific performance — action to compel specific performance of alleged agreement to sell real property.

      Noble v. Higgins, 214 App. Div. 135, affirmed.
    Appeal from a judgment, entered December 7, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing judgment in favor of defendants. The action was to compel specific performance of an alleged agreement to convey real property pursuant to an option contained in a lease thereof. The defense was that plaintiff had failed to serve a written notice of acceptance of the option within the time provided for therein.

      George L. Bockes for appellant.

      James J. Byard, Jr., for respondents.

      Judgment affirmed, with costs;
   no opinion.

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


text:
    New York Rapid Transit Corporation, Respondent, v. Bronx Investment Company, Appellant, Impleaded with Others. (Actions Nos. 1 and 2.)
    (Argued May 14, 1926;
    decided June 1, 1926.)

      Vendor and purchaser — contract — specific performance — real property — title — action to compel specific performance of alleged contract to purchase real property — claimed defect in title.

      N. Y. Rapid Transit Corp. v. Bronx Investment Co., 216 App. Div. 767, affirmed.
    Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 23, 1926, which affirmed an order of Special Term denying a motion of defendant, appellant, for a dismissal of the complaint in an action to compel specific performance of an alleged contract to purchase real property. Defendant, appellant, claims that two certain mortgages set out in full in the complaint, by reason of after-acquired property clauses therein, were liens on the real property herein, so that plaintiff was unable to convey the fee of the premises free from all incumbrances as agreed. The Appellate Division held that the clauses mentioned did not affect the plaintiff’s title to the property. The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ”
    Order in each case affirmed, with costs; questions certified answered in the affirmative;

      Charles L. Woody for appellant.

      Trabue Carswell, M. B. Hoffman and George D. Yeomans for respondent.
   no opinion.

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


text:
    Claude T. Hollenbeck, Appellant, v. The Ætna Casualty and Surety Company of Hartford, Connecticut, Respondent.
    (Argued May 14, 1926;
    decided June 1, 1926.)

      Former adjudication — dismissal of complaint upon trial of action a bar to maintenance of new action for same cause.

      Hollenbeck v. ¿Etna Casualty & Surety Co., 215 App. Div. 609, affirmed.
    Appeal from a judgment, entered March 5, 1926, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover upon a policy of burglary insurance. Upon trial of a former action for the same liability under the same policy the complaint had been dismissed and the judgment entered failed to state that the dismissal was without prejudice. Plaintiff neither appealed nor moved to correct the judgment but brought a new action. The Appellate Division held that the judgment dismissing the complaint in the first action was a bar to the maintenance of this.
    Judgment affirmed, with costs;

      Henry J. Crawford for appellant.

      Andrew J. Nellis for respondent.
   no opinion.

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


text:
    Schenectady Holding Company, Inc., Respondent, v. Edward B. Ashton, Appellant, Impleaded with Another.
    (Submitted May 24, 1926;
    decided June 1, 1926.)

      Appeal —■ motion to dismiss denied.

    (Reported below, 215 App. Div. 857.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 27, 1926^ modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial without a jury.
    The motion was made upon the grounds that the Appellate Division unanimously decided that the findings of fact are sustained by the evidence and that the exceptions are frivolous.

      Walter A. Fullerton for motion.

      Thomas B. Kattell opposed.
   Motion denied, with ten dollars costs.


text:
    Robert D. Johnston, as Surviving Partner of the Firm of James Risk et al., Respondent, v. Compagnie Generals Transatlantique, Appellant.
    (Submitted May 24, 1926;
    decided June 1, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 242 N. Y. 381.)


text:
    103 Park Avenue Company, Appellant, v. Exchange Buffet Corporation, Appellant, and The City of New York et al., Respondents.
    (Submitted May 24, 1926;
    decided June 1, 1926.)
    Motion to amend remittitur. (See 242 N. Y. 366.)
    Motion granted.
   Recall of remittitur requested and when recalled the same will be amended by inserting therein a recital that upon the argument of the appeal in this court the plaintiff made the point that the statute, chapter 786 of the laws of New York, enacted in 192Q, deprives the plaintiff of bis property without due process of law and impairs the obligation of contract in violation of the provisions of the Constitution of the United States, and that said point was determined adversely to the plaintiff.


text:
    Clover Crest Stock Farms, Inc., Respondent, v. Pacific Fire Insurance Company, Appellant, Impleaded with Another.
    (Submitted May 24, 1926;
    decided June 1, 1926.)

      Appeal — motion to dismiss for failure to file undertaking and serve copies of record.

      Clover Crest Stock Farms v. P. F. Ins. Co., 211 App. Div. 834, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 16, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.
    The motion was made upon the grounds of failure to file the required undertaking and to make and serve the record on appeal.

      James 0. Sebring for motion.

      Thomas F. Rogers opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant within ten days serve on respondent copy of undertaking and notice of filing, and also printed copies of case on appeal, in which event motion to dismiss is denied, with ten dollars costs to respondent.


text:
    Pauchogue Land Corporation, Respondent, v. Long Island State Park Commission et al., Appellants.
    (Submitted June 2, 1926;
    decided June 3, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 15.)