text:
    In the Matter of the Claim of Charles Ginn, Respondent, against Rapid Service Press et al., Appellants. State Industrial Board, Respondent.

      Workmen's compensation — master and servant — rate of compensation for temporary total disability.

      Matter of Ginn v. Rapid Service Press, 222 App. Div. 406, affirmed.
    (Submitted April 30, 1928;
    decided May 11, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 16, 1928, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, from injuries received in the course of his employment, was temporarily totally disabled and permanently partially disabled. The question was whether under subdivision 6 of section 15 of the Workmen’s Compensation Law he was entitled to twenty or twenty-five dollars a week compensation during the period of total disability. The Appellate Division held he was entitled to twenty-five dollars per week during the period of temporary total disability and not to exceed twenty dollars per week for permanant partial disability during the remainder of the schedule period.

      John G. Donovan for appellants.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Rector, Churchwardens and Vestrymen of Trinity Church in the City of New York, Respondents, against Charles W. Berry, as Comptroller of the City of New York, et al., Appellants.

      New York city — rapid transit — mandamus to compel payment for easements under land required for subway purposes granted.

      Matter of Rector, etc., Trinity Church v. Berry, 223 App. Div. 742, affirmed.
    (Argued April 30, 1928;
    decided May 11, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 30, 1928, which affirmed an order of Special Term granting a motion for a peremptory order of mandamus directing defendants to issue and deliver to the petitioners a warrant for the agreed price of easements under certain of its property in the city of New York required for subway purposes by the Board of Transportation.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Henry J. Shields and Josiah A. Stover of counsel), for appellants.

      Origen S. Seymour and Chase Mellen for respondents.

      William G. Fullen, John F. X. McGohey and George E. Coughlin for Board of Transportation, amicus curiæ.

   Order affirmed, with costs; no opinion.

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


text:
    Charles A. Bernam et al., Copartners under the Firm Name of Bernam & Tyson, et al., Respondents, v. Harry E. Hecht, Appellant.

      Practice — parties ■ — • motion for leave to serve supplemental complaint and bring in additional party defendant properly denied.

      Bernam v. Hecht, 222 App. Div. 814, reversed.
    (Argued April 30, 1928;
    decided May 11, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 6, 1928, which reversed an order of Special Term denying a motion for leave to serve a supplemental summons and bring in another party defendant. The action was to recover a real estate broker’s commissions for leasing real property. It was sought to bring in the proposed lessee as a party defendant on the theory that it had conspired with defendant to defeat the plaintiffs’ right to recover.
    The following questions were certified:
    “ 1. Should the Goelet Leasing Co. be added as an additional party defendant in this action?
    “ 2. Should plaintiffs be permitted, in this action, to serve a supplemental complaint in accordance with plaintiffs’ prayer in the motion for permission so to do herein and in accordance with the order of the Appellate Division appealed from herein?
    “ 3. Is the cause of action which plaintiffs seek permission to set up in their supplmental complaint to be served herein a proper one to join with the cause of action alleged against the original defendant?
    “ 4. Should the order of the Special Term of the Supreme Court, Westchester county, dated the 17th day of June, 1927, denying plaintiffs’ motion have been reversed and should the motion of the plaintiffs have been granted? ”

      Joseph Rosenzweig, Joseph H. Robins and David Tepp for appellant.

      Clinton T. Taylor and James B. Stilson for respondents.
   Order of Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. Questions certified answered in the negative. Held, that the plaintiffs have failed to show any facts justifying or tending to justify the joinder of an additional party.

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


text:
    Rosenblum Realty Co., Inc., Appellant, v. Herman Knepper, Respondent, Impleaded with Another.

      Money had and received — duress — action to recover money paid to secure forbearance of threatened foreclosure of mortgage.

      Rosenblum Realty Co., Inc., v. Knepper, 222 App. Div. 737, affirmed.
    (Argued April 30, 1928;
    decided May 11, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1927, affirming a judgment in favor of defendant-respondent entered upon a dismissal of the complaint by the court at a Trial Term. The action was for money had and received alleged to have been paid under duress. The complaint alleged that defend-. ant-respondent was agent for one who held a mortgage on premises owned by plaintiff; that plaintiff mailed defendant-respondent a check for interest due but defendant-respondent claiming the interest had not been paid threatened foreclosure and demanded for forbearance the sum of one thousand dollars, which she paid in addition to legal interest.

      Louis Jay for appellant.

      Joseph Rosenzweig for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Herman Gross, Appellant.

      Crimes — robbery in first degree as second offense —judgment of conviction affirmed.

      People v. Gross, 221 App. Div. 245, affirmed.
    (Argued May 1, 1928;
    decided May 11, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of robbery in the first degree as a second offense.

      Leonard A. Snitkin and Louis H. Klugherz for appellant.

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

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


text:
    The People of the State of New York ex rel. Claire Belle Dresses, Inc., Appellant, v. State Tax Commission, Respondent.

      Tax — franchise tax — corporations — refund of franchise tax on evidence that corporation had dissolved — tax reassessed on resumption of operations by corporation.

      People ex rel. Claire Belle Dresses, Inc., v. State Tax Comm., 221 App. Div. 471, affirmed.
    (Argued May 1, 1928;
    decided May 11, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 16, 1927, which confirmed, on certiorari, a determination of the State Tax Commission assessing a franchise tax against the relator for the year beginning November 1, 1919. The tax was paid under protest and later refunded on evidence that relator had 1 ceased doing business and been dissolved October 31, 1919. Thereafter, in 1925, on proof that relator had resumed operations, the assessment was restored and the tax affirmed.

      Arthur B. Hyman for appellant.

      Albert Ottinger, Attorney-General (Wendell P. Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    State Bank, Appellant, v. Oregon-Washington Railroad and Navigation Company et al., Respondents. Arthur Y. Dalziel, as Trustee of Louis Taub, Appellant, v. Oregon-Washington Railroad and Navigation Company et al., Respondents.

      Appeal — unanimous order of Appellate Division directing judgment on submission of controversy ■ — • appeal without permission from judgment dismissed.

      State Bank v. Oregon-Washington B. B. & Nav. Co., 219 App. Div. 394, appeal dismissed.

      Dalziel v. Oregon-Washington B. B. & Nav. Co., 219 App. Div. 394, appeal dismissed.
    (Argued May 1, 1928;
    decided May 11, 1928.)
    Appeal, in each of the above-entitled actions, from a judgment entered August 5, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, unanimously directing judgment in. favor of defendants upon the submission of a controversy upon an agreed statement of facts.

      David Hoar and Max Silverstein for appellants.

      William C. Cannon, Theodore Kiendl and George M. Skinner for respondents.
   Appeals dismissed, with costs; no opinion.

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


text:
    John T. Dwane, Respondent, v. Berlin & Jones Company, Inc., Appellant, Impleaded with Another.

      Commissions — services — action to recover commissions on yearly profits of corporation — Federal income tax not deducted before computation.

      Dwane v. Berlin & Jones Co., Inc., 223 App. Div. 712, affirmed.
    (Argued May 1, 1928;
    decided May 11, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 20, 1928, affirming a judgment in favor of plaintiff entered upon the report of a referee. The action was to recover commissions on the yearly profits of defendant corporation alleged to be due for services rendered. The only question was whether Federal income taxes should be deducted before the commissions were computed.

      Charles I. Taylor and Thomas H. Beardsley for appellant.

      Frank S. Gannon, Jr., and M. A. Willment for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank E. Sturgis et al., as Trustees under the Will of Frank Work, Deceased, et al., Respondents, v. Frances Roche et al., Appellants, and Edmund M. Roche et al., Respondents, Impleaded with Another.
    (Submitted April 30, 1928;
    decided May 11, 1928.)
   Motion to amend remittitur. (See 247 N. Y. 585.)

Motion granted. Recall of remittitur requested and remittitur when recalled will be amended so as to fix the value of the stock of the Delaware, Lackawanna and Western Railroad Company as of March 16, 1911, at the sum of $114,480,102.96; as of February 20, 1914, at the sum of $134,974,724.13, and as of July 28, 1921, at the sum of $207,911,660.82.


text:
    In the Matter of the Estate of Otto Kiekebusch, Deceased. Emil Kiekebusch, as Executor, Appellant; Ida Kiekebusch, Respondent.
    (Submitted May 7, 1928;
    decided May 11, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 236.)


text:
    John J. Hogan, Respondent, v. Star Company, Appellant.

      Appeal — motion to dismiss granted.

    Reported below, 212 App. Div. 883.
    (Submitted May 7, 1928;
    decided May 11, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 18, 1925, which reversed an order of Special Term granting a motion, by defendant, to dismiss the second amended complaint herein. Defendant sought to bring the order up for review on appeal by him from a final judgment.
    The motion was made upon the ground that the time within which to appeal had expired.

      Helen P. McCormick for motion.

      Arthur Moynihan opposed.
   Motion denied, with ten dollars costs.


text:
    Walston H. Brown, Individually and as Trustee for Stockholders of The California Company, Plaintiff, v. William L. Kann et al., Respondents. Eva R. I. Brown, as Committee of the Estate of Walston H. Brown, an Incompetent Person, Appellant.

      Contract — rescission — counterclaim — action to rescind contract for sale of entire stock of corporation free of incumbrances against stock or property of corporation.

      Brown v. Kann, 221 App. Div. 874, affirmed.
    (Argued May 1, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1927, affirming a judgment in favor of defendants entered upon the report of a referee. The action was to rescind a contract whereby plaintiff individually contracted to sell the whole capital stock of the California Company, a corporation owning certain lands and water rights in California, and agreed to turn over the property free from incumbrances either against the stock or the property. The defendant alleging that in judicial proceedings in California the water rights of the corporation had been adjudged to be a public utility, suspended payment under the contract, whereupon this action was begun. Defendant counterclaimed for damages.

      Vincent H. Rothwell, Harold Harper and Murray F. Johnson for appellant.

      William L. Wemple and William J. O’Shea, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Will Hubbell, as Trustee in Bankruptcy of Elmer E. Travis, Respondent, v. Elmer E. Travis et al., Appellants.

      Fraudulent conveyance — debtor and creditor — action to set aside conveyance of personal property as in fraud of creditors.

      Hubbell v. Travis, 221 App. Div. 812, affirmed.
    (Argued May 2, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 11, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to set aside a conveyance of personal property as in fraud of creditors.

      John Bright, Charles C. Redfield and Abram F. Servin for appellants.

      George A. Speenburgh, Andrew C. Fenton and Ralph S. Ives for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Philip Lutz, Appellant, v. George V. McLaughlin, as Police Commissioner of the City of New York, Respondent.

      New York city ■ — - police — certiorari ■ — dismissal of patrolman from police force.

      People ex rel. Lutz v. McLaughlin, 222 App. Div. 774, affirmed.
    (Submitted May 2, 1928;
    decided May 29, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 23, 1927, which confirmed, on certiorari, an order of the Police Commissioner of the city of New York dismissing the relator from the office of patrolman on the police force of the city of New York on charges of insubordination, conduct unbecoming an officer and violation of the regulations. Appellant contended he had not received a fair and impartial trial.

      Abraham H. Kesselman for appellant.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Silver’s Lunch Stores, Inc., Appellant, v. Richard L. Lee, Respondent.

      Principal and agent ■ — ■ brokers — action to recover secret profits alleged, to have been realized by a real estate broker in a real estate transaction wherein he was employed.

      Silver’s Lunch Stores, Inc., v. Lee, 222 App. Div. 748, affirmed.
    (Argued May 2, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1927, affirming a judgment in favor of defendant entered upon a verdict. The action was to recover secret profits alleged to have been gained by defendant in a real estate transaction wherein defendant acted as broker for plaintiff’s assignor. The complaint alleged that plaintiff’s assignor had employed defendant to obtain a purchaser for a dominant lease; that defendant obtained a purchaser who was willing to purchase only if a sublease was canceled; that defendant, .as part of his employment, undertook to procure a cancellation of the sublease which he did in consideration of a substantial payment to the sublessee by plaintiff’s assignor; that thereupon the sale of the dominant lease went through and defendant was paid the agreed commission; that thereafter plaintiff’s assignor learned that defendant had also received a commission out of the money paid by it to secure the surrender of the sublease. The answer was that plaintiff’s assignor had full and complete knowledge of the transaction.

      Henry M. Flateau for appellant.

      Henry Waldman and Joseph G. Abramson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Abraham J. Haber, Appellant, v. Sam Seiff, Respondent.

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

      Haber v. Seiff, 222 App. Div. 765, affirmed.
    (Argued May 2, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 31, 1927, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to compel specific performance of an alleged contract to purchase real property which was evidenced by a memorandum reading as follows:
    “ A. J. Haber “ AurJust lst> 1925-

      “ Received from Sam Seiff $1,000 on account of purchase price on premises known as 107-15 Blvd. Rockaway Beach, N. Y. Store property with six rooms plot 25 x 99 or more. Additional Two Thousand Dollars on signing contract Thurs. Aug. 6th, 1925 8:30 p. m. at home of buyer 169 Beach 124th St. Balance of 1st Mortgage to be due and payable five years from date of taking title. Said mortgage to bear interest at rate of 6% Six per cent annum. ($5,000) Five Thousand Dollars cash to be paid on taking title. Sum of ($13,000) Thirteen Thousand Dollars to be a first mortgage. Purchase price is ($21,000) Twenty-one Thousand Dollars. Title to be closed sixty days from date of signing contract. Broker in this deal is Charles Robertson. Commission to be 2*%-

      “ Date of purchase Aug. 1st, 1925.
    “ A. J. HABER,

      “ Owner”

    The defense was that at the time fixed the plaintiff had refused to execute a formal contract as provided in the memorandum.

      Charles H. Kelby and Isidor Cohn for appellant.

      George W. Glaze and Milton C. Weisman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Carrie B. Eaton, Appellant, for Construction of the Will of Henry C. Willcox, Deceased. Lillian Edwards et al., Respondents.

      Will — bequest to employees who had been employed continuously for five years prior to death of testator — employee does not take who, after nine years’ service resigned, and five years la er was re-employed and so continued until death of testator two years thereafter.

      Matter of Willcox, 222 App. Div. 622, affirmed.
    (Submitted May 3, 1928;
    decided May 29, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 3, 1928, which reversed a decree of the New York County Surrogate’s Court construing the will of Henry C. Willcox, deceased. Testator, by his will, bequeathed “ the sum of Twenty thousand dollars, to be divided equally among those employees of the American Surety Company of New York, including Miss Lillian Edwards, who have been employed in the Legal Department of the company at its Home office continuously for five years or more prior to my decease, and whose salaries do not exceed the sum of Three Thousand dollars per annum * *
    The petitioner was employed continuously in the legal department of the American Surety Company from January 4, 1909, to January 3, 1920, when she resigned. On February 6,1925, she was again employed by the American Surety Company and about a month thereafter was assigned to the legal department where she continued to serve until testator’s death, February 26, 1927. The Appellate Division held that petitioner was not entitled to share under the bequest.

      Milton P. Kupfer, Samuel H. Kaufman, Earl James Garey and Eugene L. Garey for appellant.

      Allan C. Rowe and George A. Kues for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    James M. Mortensen, Respondent, v. Magoba Construction Company, Inc., Appellant, Impleaded with Another.

      Negligence ■ — ■ building — general contractor liable for injury to employee of subcontractor injured through giving way of floor installed by another subcontractor.

      Mortensen v. Magoba Constr. Co., Inc., 222 App. Div. 773, affirmed.
    (Argued May 3, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 29, 1927, 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. Defendant-appellant was the general contractor erecting a building. Plaintiff was employed by a subcontractor. Another subcontractor had installed concrete flooring on the first floor and its workmen had placed bags of cement on a portion thereof. While plaintiff was walking across this floor it gave way and he was precipitated into the cellar, receiving the injuries complained of.

      George J. Stacy and James J. Mahoney for appellant.

      Harold R. Medina and Jacquin Frank for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hoffman Bros., Inc., Appellant, v. Commercial Union Assurance Company, Limited, of London, England, Respondent.

      Insurance {theft) — contract — policy insuring against loss unless from theft by employee, servant or messenger of insured — porter hired for day by president of insured to carry sample cases within class mentioned,

      Hoffman Bros., Inc., v. Commercial Union Assurance Co., 221 App. Div. 167, affirmed.
    (Submitted May 4, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 29, 1927, in favor of defendant, upon the submission of a controversy under sections 546-548 of the Civil Practice Act. The action was to recover the value of lost jewelry under a policy of insurance providing as follows:

      “ This policy covers loss of, and /or damage to the above described property or any part thereof, arising from any cause whatsoever except as hereinafter mentioned, viz.:
    “ ‘ 1. Loss or damage of, or resulting from theft or other act or omission of a dishonest character (including sabotage) on the part of the assured, or any agent or employee or servant or director or messenger, or broker, or broker’s customer, or customer of the assured, unless such loss arises when the goods are deposited for safe custody by the assured, his, or their servants, or agents, with such broker, or customer or broker’s customers.’ ”
    The jewelry in question was in sample cases in possession of plaintiff’s president who was traveling seeking orders. At Cleveland, Ohio, he hired a porter to carry the cases. Several hours later they became separated in the busy streets and the porter failed to reappear with the cases. The question was whether the porter came within the class comprised by the words “ employee,” “ servant,” or “ messenger.”

      Sidney J. Loeb and Leon M. Prince for appellant.

      Alfred L. Pitts and William, Otis Badger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Morris Gewirtzman, an Infant, by Isidore Gewirtzman, His Guardian ad Litem, Respondent, v. Barnet Schneider et al., Copartners under the Firm Name of Schneider & Rosenblum, Appellants. Isidore Gewirtzman, Respondent, v. Barnet Schneider et al., Copartners under the Firm Name of Schneider & Rosenblum, Appellants.

      Negligence — streets —■ lumber ordered by general contractor for use by subcontractor and piled in street by employees of lumber dealer — child injured by falling of lumber ■— erroneous charge in action to recover for injuries that general contractor was alone responsible.

      Gewirtzman v. Schneider (2 cases), 222 App. Div. 655, reversed,
    (Argued May 4, 1928;
    decided May 29, 1928.)
    Appeal in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 10, 1927, unanimously 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 loss of services and expense occasioned by the injuries. The infant plaintiff, a child about eight years of age, was walking along Union street in the borough of Brooklyn when some beams fell from a pile of lumber, which it is alleged defendants placed in the street, and struck him, causing the injuries complained of. Defendants were general contractors erecting a building and had ordered the lumber for use by a subcontractor. It appeared on the trial that the lumber had been delivered and piled by employees of the lumber dealer and that defendants took no part in the unloading or piling thereof.

      Everett W. Bovard, Clarence E. Mellen and Norman G. Hewitt for appellant.

      Harold R. Medina, William F. McNulty and Arthur J. Levine for respondents.
   Judgment of Appellate Division and that of Trial Term reversed and new trial granted, with costs to abide event, on the ground that the trial judge erroneously charged the jury that as a matter of law the pile of lumber was in the custody and control of the defendants, and that they were alone responsible for any negligence involved in the falling of the pile.

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


text:
    Charles L. Douglas, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.

      Courts —jurisdiction — State courts may decline jurisdiction of action for tort committed in foreign State where both parties are non-residents even though brought under Federal statute — motion to vacate service of summons and complaint properly granted.

      Douglas v. N. Y., N. H. & H. R. R. Co., 223 App. Div. 782, affirmed.
    (Argued May 4, 1928;
    decided May 29, 1928.)
    Appeal on constitutional grounds from a judgment entered April 5, 1928, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which unanimously affirmed an order of Special Term granting a motion by defendant for an order vacating the service of the summons and complaint and for a dismissal of the complaint. The plaintiff, a citizen of the State of Connecticut, was injured while working in that State for defendant, which is a Connecticut corporation, and brought this action under the Federal Employers’ Liability Act to recover damages.

      Charles D. Lewis, Thomas J. O’Neill, John Ambrose Goodwin and Leonard F. Fish for appellant.

      E. R. Brumley, F. J. Rock and John M. Gibbons for respondent.
   Judgment affirmed, with costs, on the authority of Murnan v. Wabash Ry. Co. (246 N. Y. 244).

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


text:
    Crandall Horse Company, Appellant, v. Chicago and Eastern Illinois Railway Company, Respondent.

      Appeal ■ — • order of Appellate Division reversing order denying motion to vacate summons and granting motion — appeal to Court of Appeals dismissed.

      Crandall Horse Co. v. Chicago & E. I. Ry. Co., 220 App. Div. 800, appeal dismissed.
    (Argued May 8, 1928;
    decided May 29, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1927, which reversed an order of Special Term denying a motion to vacate service of the summons and granted said motion.

      Dean Hyland and L. P. Hancock for appellant.

      Hugh McM. Russ for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph Lefkowitz, Appellant.

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

      People v. Lefkowitz, Kings Co. Tr. Term, Dec. 2, 1927, affirmed.
    (Argued May 7, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Supreme Court, rendered December 2, 1927, at a Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Harry Sacher for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Max Bloom, Appellant.

      Crimes — policy — judgment convicting defendant of unlawfully and knowingly possessing policy slips reversed.

      People v. Bloom, 222 App. Div. 451, reversed.
    (Submitted May 7, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 3, 1928, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of the crime of unlawfully and knowingly possessing policy slips in violation of section 974 of the Penal Law.

      Hyman Bushel and Samuel Gottlieb for appellant.

      Joab H. Banton, District Attorney (Archibald Firestone of counsel), for respondent.
   Judgment of Appellate Division and that of Court of Special Sessions reversed and defendant discharged. Defendant is charged only with unlawfully and knowingly possessing policy slips: Held, that although the defendant’s gift enterprise constituted a lottery (Penal Law, § 1370), the certificates in his possession were not shown to be policy slips and defendant was not shown to be engaged in the game or scheme commonly known as policy.

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


text:
    The People of the State of New York, Respondent, v. John Gormley and George Dash, Appellants.

      Crimes — attempted, robbery —judgment of conviction affirmed.

      People v. Gormley, 222 App. Div. 256, affirmed.
    (Argued May 7, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1927, which affirmed a judgment of the Bronx County Court rendered upon pleas by defendants of guilty of the crime of attempted robbery in the first degree. Before imposition of the sentence defendants made a motion to withdraw their pleas of guilty and for an inspection of the minutes of the grand jury which motion was denied.

      Clark L. Jordan, Jr., for appellants.

      John E. McGeehan, District Attorney (George B. DeLuca, Herman J. Fliederblum and Israel J. P. Alderman of counsel), for respondent.
   Judgment affirmed; no opinion.

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


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

      Crimes — assault — driving automobile on highway in culpably negligent manner —judgment of conviction affirmed.

      People v. Hand, Rockland Co. Ct. Oct. 25, 1927, affirmed.
    (Submitted May 7, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Rock-land County Court, entered October 25, 1927, which affirmed a judgment of the Court of Special Sessions in the town of Ramapo convicting the defendant of the crime of assault in the third degree in that while driving an automobile in a culpably negligent manner on a public highway, he ran into and injured a child.

      Alton W. Teale and Theodore H. Engel for appellant.

      Morton Lexow, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    Henry S. Quick, Respondent, v. Alfred E. Clegg et al., Appellants.

      Sale — contract — interpretation of provision that purchaser will assume and pay all income and excess profit taxes assessed against seller by reason of the sale.

      Quick v. Clegg, 222 App. Div. 137, affirmed.
    (Argued May 8, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 6, 1928, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a written contract whereby plaintiff agreed to sell to defendant Clegg certain shares of stock for a sum stated and the further consideration that the purchaser “ will assume and pay all income and excess profit taxes for the year 1918, which are assessed against the party of the first part by reason of the sale of the above-mentioned stock.” The question was as to the meaning of this provision. The trial court held that the parties intended the seller to have, without deduction for payment of tax, the profit which the sale gave him.

      Herbert Noble for appellants.

      Joseph R. Kelley and George F. Handel for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Beekman G. Mitchell, Respondent, v. Marine Basin Company, Appellant.

      Negligence — wharfs and wharfage — ships and shipping — action to recover damages to vessel moored under contract of wharfage, arising from collapse of pier.

      Mitchell v. Marine Basin Co., 222 App. Div. 777, affirmed.
    (Argued May 8, 1928;
    decided May 29, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 9,1928, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was for the recovery of damages sustained by a yacht through being sunk while lying in the defendant-appellant’s marine basin at Gravesend Bay. The yacht was properly moored under a contract of wharfage which was then in effect between the owners of the yacht and the defendant. During a storm a section of a pier which served as a breakwater collapsed into the basin, throwing lumber and piling therein, a piece of which a few hours later struck the yacht breaking her hull below the water line.

      William F. Purdy for appellant.

      Carroll Single and Forrest E. Single for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Oscar E. Hayman, Appellant, v. William E. Walsh et al., Constituting the Board of Standards and Appeals of the City of New York, Respondents.

      Municipal corporations— New York city — Zoning Law — determinar lion of Board of Standards and Appeals denying permit to erect public garage properly reinstated and confirmed.

      People ex rel. Hayman v. Walsh, 223 App. Div. 722, affirmed.
    (Submitted May 8, 1928;
    decided May 29, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 1, 1928, which reversed an order of Special Term annulling, on certiorari, a determination of the Board of Standards and Appeals of the city of New York denying the application of relator for a permit to erect and maintain a public garage on the westerly side of Gravesend avenue between Avenues S and T, and reinstated and confirmed such determination.

      David L. Malbin and George Rosling for appellant.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Willard S. Allen and Benjamin Millstein of counsel), for respondents.
   Order affirmed, with costs, no opinion.

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


text:
    Edward Rosenberg et al., Appellants, v. Globe and Rutgers Fire Insurance Company of the City of New York, Respondent.

      Insurance (theft) — contract — policy insuring “ men’s clothing ” from loss or theft — cut piece goods with necessary trimmings to be assembled into clothing not covered.

      Rosenberg v. Globe & Rutgers Fire Ins. Co., 222 App. Div. 225, affirmed.
    (Argued May 8, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department. entered December 30, 1927, affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was to recover upon a policy insuring plaintiffs against loss by perils of transportation, including theft, of “ men’s clothing.” Certain piece goods which had been cut, together with the necessary trimmings such as finings, canvas, buttons, etc., were sent from New York to Philadelphia, there to be assembled and the process of manufacture into men’s clothing completed. They were lost or stolen. The Appellate Division held that the goods lost were not men’s clothing within the meaning of the policy.

      Maurice J. O’Callaghan, Albert S. McGrover and Elias H. Avrane for appellants.

      Martin A. Schenck for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cabdozo, Ch. J., Pound, Crane, Andbews, Kellogg and O’Beien, JJ. Not sitting: Lehman, J.


text:
    Alexander Lecakes, an Infant, by Nicholas Lecakes, His Guardian ad Litem, Respondent, v. Stevenson Refrigerating & Storage Co., Inc., Appellant. Nicholas Lecakes, Respondent, v. Stevenson Refrigerating & Storage Co., Inc., Appellant.

      Negligence — elevators — open door in elevator shaft — action for injuries arising from fall through door to bottom of shaft.

      Lecahes v. Stevenson B. & S. Co., Inc. (2 eases), 222 App. Div. 668, affirmed.
    (Argued May 9, 1928;
    decided May 29, 1928.)
    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 November 25, 1927, 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 to recover for loss of services and expense occasioned the father of the injured child by his injuries. The infant plaintiff, a boy seventeen years of age, walked or fell through an open elevator door in the defendant’s building and falling to the bottom of the shaft received the injuries complained of.

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

      G. Everett Hunt, William G. Walsh and Grattan B. Shults for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


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    The People of the State of New York, Respondent, v. Daniel J. Graham, Appellant.

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

      People v. Graham, N. Y. Gen. Sess., Nov. 28, 1927, affirmed.
    (Argued May 9, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Court of General Sessions of the county of New York, rendered November 28, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Leonard A. Snitkin, Thomas C. McDonald and Leo H. Klugherz for appellant.

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

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


text:
    John Laughlin, Respondent, v. August F. Meyer, Defendant, and Herbert A. Meyer, Appellant.

      Conversion — action for conversion of oil paintings — sufficiency of demand and refusal.

      Laughlin v. Meyer, 222 App. Div. 793, affirmed.
    (Submitted May 10, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 9, 1928, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for the alleged conversion of certain oil paintings. The defense was that the pictures had come lawfully into the possession of defendants and that there was no sufficient demand and refusal to sustain an action for conversion.

      Noel E. Coshway and Andrew T. Beasley for appellant.

      Irving W. Cole for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fred Brooks et al., Respondents, v. Robert Wheeler, Appellant.

      Beal property — easements — action to enjoin obstruction of right of way.

      Brooks v. Wheeler, 222 App. Div. 771, affirmed.
    (Argued May 10, 1928;
    decided May 29, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 19, 1928, affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury. The action was to enjoin the obstruction of a right of way between the plaintiffs’ farm and the highway. (See 243 N. Y. 28.)

      Joseph A. McCabe and John E. Mack for appellant.

      Elijah T. Russell for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gerfish Realty Company, Inc., Appellant, v. James J. Dowd, Respondent.
    (Submitted May 28, 1928;
    decided June 5, 1928.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 539.)


text:
    In the Matter of the Claim of Lester L. Robinson, Appellant, against Oscar J. Mayer, Respondent.

      Appeal — failure to file or serve undertaking or papers on appeal — motion to dismiss appeal granted.

      Matter of Robinson v. Mayer, 217 App. Div. 812, appeal dismissed.
    (Submitted May 28, 1928;
    decided June 5, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 23, 1926, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law, and dismissing the claim.
    The motion was made upon the grounds that neither the required undertaking nor the papers on appeal had been filed or served and that an award has been granted claimant for the same injuries against a third party.

      Charles B. O’Connell for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of Joseph F. Stillman et al., Respondents, against The Board of Standards and Appeals of the City of New York et al., Appellants.
    (Submitted May 28, 1928;
    decided June 5, 1928.)
   Motions to amend remittiturs denied. (See 247 N. Y. 599.)


text:
    Henry D. Sayer, as Industrial Commissioner of the State of New York, Respondent, v. Gerardus M. Wynkoop, Appellant.
    (Submitted May 28, 1928;
    decided June 5, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 54.)


text:
    Augustus S. Houghton et al., Appellants and Respondents, v. Hector W. Thomas et al., Respondents, and Harry W. Mack, Appellant, Impleaded with Another.
    (Submitted May 28, 1928;
    decided June 5, 1928.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 523.)


text:
    In the Matter of Carrie E. Pounds et al., Respondents, against The Board of Standards and Appeals of the City of New York et al., Appellants.

      New Yorh city — zoning law — determination of Board of Standards and Appeals permitting variation, reversed.

      Matter of Pounds v. Board of Standards & Appeals, 223 App. Div. 861, affirmed.
    (Argued May 28, 1928;
    decided June 12, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 30, 1928, which affirmed an order of Special Term reversing, on certiorari, a determination of the Board of Standards and Appeals of the city of New York ' granting an application of appellant J. P. C. Realty Corporation for permission to erect an apartment house on premises owned by it at the northeast corner of Cortelyou road and East Eighteenth street in the borough of Brooklyn according to “ C ” area district regulations instead of “ E ” area district regulations which were applicable to that locality.

      George P. Nicholson, Corporation Counsel (Willard S. Allen, J. Joseph Lilly and Martin H. Murphy of counsel), for Board of Standards and Appeals, appellants.

      Edward A. McShane for J. P. C. Realty Corporation, appellant.

      Leonard M. Wallstein and Ralph M. Frink for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Sikora Realty Corporation, Respondent, against Charles W. Bales, Superintendent of Buildings of the Borough of Queens, Appellant.

      New York city — tax exemption — mandamus — Superintendent of Buildings directed to correct records so as to show buildings completed within time to obtain exemption.

      Matter of Sikora Realty Corp. v. Bales, 222 App. Div. 837, affirmed.
    (Argued May 28, 1928;
    decided June 12, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 27,1928, which unanimously affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel defendant to correct the records of his office to show that certain buildings belonging to petitioner were completed for occupancy on or before the 29th day of March, 1924, so as to come within a tax exempt ordinance of the city of New York adopted pursuant to the provisions of section 4-b of the Tax Law (L. 1920, ch. 949).

      George P. Nicholson, Corporation Counsel (Willard S. Allen, J. Joseph Lilly and Robert J. Culhane of counsel), for appellant.

      William Gilligan and Henry F. Wolff for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Mayor and Common Council of the City of Yonkers, Appellants, against The New York Central Railroad Company, Respondent.

      Yonkers (city of) — streets — railroads — application for widening of overhead crossing —failure to show necessity.

      Matter of Mayor, etc., of Yonkers (McLean Ave.), 222 App. Div. 766, affirmed.
    (Argued May 28, 1928;
    decided June 12, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 16, 1927, which unanimously affirmed a determination of the Public Service Commission dismissing for lack of jurisdiction an application by the Mayor and Common Council of the city of Yonkers for an order directing the widening of the bridge and roadway carrying McLean avenue over the tracks of the main line, Putnam Division, of the New York Central Railroad Company in the city of Yonkers.

      Leonard G. McAneny and Richard E. Fitz Gibbon for appellants.

      Frederick L. Wheeler, George H. Walker and Alexander S. Lyman for respondent.
   Order affirmed, with costs, on the ground that the petitioner has failed to show that an alteration of the bridge is necessary for the public safety within the meaning of section 91 of the Railroad Law.

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


text:
    In the Matter of Cyrus Durey, Respondent. The People of the State of New York, Appellant.

      Practice — depositions — sufficiency of petition.

      Matter of Durey, 223 App. Div. 70, affirmed.
    (Argued May 28, 1928;
    decided June 12, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 17, 1928, which affirmed an order of Special Term directing the taking of a deposition to perpetuate testimony.
    The following question was certified: “ Is the respondent’s petition sufficient to sustain an order permitting him to take the testimony by deposition of Truman J. Whitman under article 31. of the Civil Practice Act? ”

      Albert Ottinger, Attorney-General (C. S. Ferris of counsel), for appellant.

      Alfred D. Dennison for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of Mary H. Tompkins et al., Appellants, against Henry Bruckner, as President of the Borough of The Bronx, New York City, Respondent.

      New York city — streets — mandamus to compel removal of incumbrances from lands appropriated for public streets denied —• relief under sections 432-436 of charter.

      Matter of Tompkins v. Bruckner, 223 App. Div. 831, affirmed.
    (Argued May 29, 1928;
    decided June 12, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1928, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the defendant to remove from within the lines of certain street areas in the borough of The Bronx, any and all tents, bungalows and other structures used for private purposes, obstructing, incumbering and encroaching on public street areas so that said public streets, avenues and highways shall be free from such obstructions and open to the petitioners and to the public for public uses, access and travel. The Appellate Division reversed on the ground that petitioners might obtain relief through sections 432 to 436 of the charter of the city of New York.

      Howard C. Kelly for appellants.

      George P. Nicholson, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for respondent.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Transfer Tax upon the Estate of Martha M. Wysong, Deceased. Marshall R. Kernochan, as Executor, Appellant; State Tax Commission, Respondent.

      Tax — transfer tax — assessment of remainder of trust estate at full value.

      Matter of Wysong, 223 App. Div. 407, affirmed.
    (Argued May 29, 1928;
    decided June 12, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 27, 1928, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax upon the remainder of a trust estate created by the will of Martha M. Wysong, deceased, at its full value pursuant to section 230 of the Tax Law, as amended by chapter 144 of the Laws of 1925. Appellant contended that the value of the life estate should be deducted in determining the tax.

      Henry F. Miller for appellant.

      Seth T. Cole and Charles A. Curtin for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


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    In the Matter of the Accounting of The Farmers’ Loan and Trust Company, as Successor Trustee under the Will of James H. Banker, Deceased. Sarah H. Kent et al., as Executrices of Ellen J. Banker, Deceased, Appellants; Sophia H. B. White, as Administratrix of the Estate of Edward Banker, Deceased, Respondent.

      Will — trust — remainder to issue of niece or in default thereof to brother — death of brother before that of life tenant and of niece, without issue subsequent thereto -r- administratrix of brother takes remainder.

      Matter of Banker, 223 App. Div. 496, affirmed.
    (Argued May 29, 1928;
    decided June 12, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 20, 1928, which reversed a decree of the Westchester County Surrogate’s Court construing the will of James H. Banker, deceased. Testator by his will created a trust for the use of his wife and niece with remainder to issue of the niece or in default thereof to his brother. The brother predeceased the widow and niece, the latter surviving the widow but dying without issue or descendants thereof. The Appellate Division held that the administratrix of the brother was entitled to the remainder.

      Edwin W. Cooney and Joseph Trachtman for appellants.

      Henry S. Miller for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Arthur Cook, Respondent.

      Crimes — nuisance — intoxicating liquors —judgment convicting defendant of maintaining nuisance by conducting vlace where intoxicating liquors were sold, properly reversed.

      People v. Cook, 220 App. Div. 110, affirmed.
    (Submitted May 29, 1928;
    decided June 12, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 21, 1927, which reversed a judgment of the Steuben County Court rendered upon a verdict convicting the defendant of maintaining a common nuisance in violation of section 1532 of the Penal Law, in that he conducted a place where intoxicating liquors were sold in violation of the National Prohibition Act, and directed a dismissal of the indictment. The Appellate Division held that the acts charged, if a crime, were punishable by the Federal courts only.

      Guy W. Cheney, District Attorney, for appellant.

      Floyd E. Whiteman and Acton M. Hill for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Andrews, Kellogg and O’Brien, JJ.; Cardozo, Ch. J., Pound and Lehman, JJ., vote to modify judgment of the Appellate Division by ordering a new trial instead of dismissing the indictment.


text:
    Sam Ehrlich, Appellant, v. Jack Mills, Inc., Respondent.

      Pleading ■ — • equity ■— accounting — action for accounting of alleged royalties — complaint dismissed as alleging cause of action neither at lau> nor in equity.

      Ehrlich v. Mills, Inc., 215 App. Div. 115, affirmed.
    (Submitted May 29, 1928;
    decided June 12, 1928.)
    Appeal from a judgment, entered February 9, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was in equity for an accounting, the complaint alleging that plaintiff had assigned to defendant his right to copyright, print and publish a certain song in consideration of its oral promise to pay him a royalty on each copy sold and a percentage of money received from licenses to mechanically reproduce the same. The Appellate Division held that the complaint set forth a cause of action neither in equity nor at law.

      Abner Greenberg for appellant.

      Saul Gordon and Samuel Jesse Buzzell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Wilmont L. Wagner, Appellant.
    (Submitted June 11, 1928,
    decided June 12, 1928.)
   Motion for reargument denied. (See 248 N. Y. 553.)


text:
    The People of the State of New York, Appellant, v. Charles Albero and Louis Permuto, Respondents.

      Appeal — reversal of judgment of conviction and grant of new trial upon question of fact and law — appeal to Court of Appeals dismissed.

      People v. Albero, 223 App. Div. 442, appeal dismissed.
    (Submitted June 4, 1928;
    decided June 12, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 27,1928, which reversed upon questions of fact and law a judgment of the Bronx County Court, rendered upon a verdict convicting the defendants of the crime of robbery in the first degree and granting a new trial.
    The motion was made upon the ground that this court had no jurisdiction to entertain the appeal.

      Martin W. Littleton for motion.

      Jdhn E. McGeehan, District Attorney (George B. De Luca and Herman J. Fleiderblum of counsel), opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Pasquale Trentacosta, Appellant.

      Appeal —failure to serve record and points — appeal dismissed.

      People v. Trentacosta, 222 App. Div. 774, appeal dismissed.
    (Submitted June 4, 1928;
    decided June 12, 1928.)
    Motion to dismiss an appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 23, 1927, which dismissed an appeal from a judgment of Queens County Court convicting the defendant of the crimes of robbery in the first degree, grand larceny and assault in the second degree as a second offense.
    The motion was made upon the ground that defendant had failed to serve the printed record and points on appeal.

      Richard S. Newcombe, District Attorney (Thomas F. Thornton of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Samuel Sultan, Respondent, v. Julius Corn, Appellant.

      Appeal — unanimous affirmance of interlocutory judgment, of order denying motion to modify interlocutory judgment and of final judgment entered thereon — appeal without permission dismissed.

      Sultan v. Corn, 223 App. Div. 716, appeal dismissed.
    (Submitted June 4, 1928;
    decided June 12, 1928.)
    Motion to dismiss an appeal from three orders of the Appellate Division of the Supreme Court in the first judicial department, entered December 30,1927, February 24, 1928, and March 30, 1928, the first of which unanimously affirmed an interlocutory judgment in an action for specific performance, the second of which unanimously affirmed an order of Special Term denying a motion for a modification of the interlocutory judgment and the third of which unanimously affirmed a final judgment in favor of plaintiff.
    The motion was made upon the ground that permission to appeal had not been obtained.

      Benjamin H. Margolies for motion.

      Samuel L. Miller opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Rosenblum Realty Co., Inc., Appellant, v. Herman Knepper, Respondent, Impleaded with Another.
    (Submitted June 4, 1928;
    decided June 12, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 566.)


text:
    The People of the State of New York ex rel. Irving P. Wiener, Appellant, v. Robert Barr, as Warden of the City Prison of the City of New York, Respondent. The People of the State of New York, Respondent.

      Crimes — stakeholding ■ — • habeas corpus •— question whether information stated a crime one for trial court to determine — habeas corpus not proper remedy.

      People ex rel. Wiener v. Barr, 223 App. Div. 310, affirmed.
    (Argued May 31, 1928;
    decided June 19, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 15, 1928, which reversed an order of Special Term sustaining a writ of habeas corpus, dismissed the writ and remanded the relator to custody. Relator was in custody on an information charging him with a violation of section 1712 of the Penal Law defining as a crime the holding of money staked or wagered upon the result of a prize fight. Relator contended that section 1712 relates to the holding of a stake upon a prohibited or unlawful prize fight and that as the fight upon which he held a stake or wager was duly licensed and lawful no crime had been committed. Defendant contended that the court in which the information was pending had jurisdiction to determine that question and, therefore, habeas corpus did not he.

      John Caldwell Myers, Benjamin F. Schreiber and John F. Keating for appellant.

      Joab H. Banton, District Attorney (Robert Daru of counsel), for respondent.
   Order affirmed on the ground habeas corpus is not the proper remedy.

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


text:
    Abraham Grundt, Respondent, v. Minnie Shenk, as Executrix of Joseph Shenk, Deceased, Appellant.

      Decedent’s estate — contract — action on alleged contract to make will and leave bequest to plaintiff.

      Grundt v. Shenk, 222 App. Div. 82, affirmed.
    (Argued May 31, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered December 19, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing judgment in favor of plaintiff. The action was to recover upon an alleged contract whereby defendant’s testator promised and agreed that in consideration of the plaintiff remaining in his employ and devoting himself to the advancement of his interests and business affairs testator would make and execute a will and therein bequeath to the plaintiff the sum of fifty thousand dollars in cash. There was evidence that after making this promise testator handed to his attorney a memorandum in his handwriting and directed him to draw a will in accordance therewith and that amongst other things the paper provided for a bequest to plaintiff for the amount heretofore stated.

      Samuel Seabury, Francis G. Caffey and Joseph Lorenz for appellant.

      Abel E. Blackmar and Percival E. Jackson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bessie A. Armondi, Appellant, v. Warren L. Dunham et al., Respondents.

      Partition •— real property — title ■— tenancy by entirety — conveyance to husband and wife, not describing them, as such nor stating nature of estate conveyed, creates tenancy by the entirety — grant by survivor conveys good title to entire property.

      Armondi v. Dunham, 221 App. Div. 679, affirmed.
    (Argued May 31, 1928;
    decided June 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 29, 1927, unanimously affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term. The action was in partition. The question was whether a conveyance to husband and wife by a deed which failed to mention the relationship and said nothing as to the nature of the estate conveyed, created a tenancy by the entirety or a tenancy in common. The courts below held that a tenancy by the entirety was created and that a deed from the survivor conveyed good title to the entire property.

      H. C. Stratton for appellant.

      Charles C. Flaesch for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ward Baking Company, Respondent, v. Robert W. Tolley et al., Appellants.

      Master and servant — contract — injunction restraining employee from violating terms of contract of employment by entering service of another or divulging trade secrets.

      Ward Baking Co. v. Tolley, 222 App. Div. 653, affirmed.
    (Argued May 31, 1928;
    decided June 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 28, 1927, affirming a judgment in favor of plaintiff entered upon the report of a referee. The action was to restrain the defendant Robert W. Tolley from violating his contract of employment with the plaintiff and to restrain the defendant Tolley Cake Corporation from co-operating therein. The judgment restrained the defendant Tolley for a period of ten years after leaving plaintiff’s employ from entering into or continuing in the employ of defendant corporation, or any one else engaged in the same business within certain territorial limits and from revealing the secret processes of the plaintiff, and defendant corporation was restrained from receiving or using information of such secret processes.

      Daniel Day Walton and Lemuel Bannister for appellants.

      William H. Button and Albert R. Jube for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ellen Kirwan, Respondent, v. Rosalie Foos, as Executrix of Ferguson W. Foos, Deceased, Appellant.

      Negligence — master and servant — domestic servant injured while being driven in master’s automobile by his chauffeur at direction of her mistress.

      Kirwan v. Foos, 221 App. Div. 858, affirmed.
    (Submitted June 1, 1928;
    decided June 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 2, 1927, 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’s" testator, who was the original defendant but died after entry of judgment on the verdict. Plaintiff was employed as a laundress in testator’s household. Requiring medical attention, her mistress, testator’s wife, took her to a doctor in testator’s automobile, driven by a chauffeur in his employ. The doctor told plaintiff to call again the next day and testator’s wife directed the chauffeur to take her in the automobile. On the way she received the injuries complained of as the result of a collision occurring, as alleged, through the negligence of the chauffeur.

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

      Moses Feltenstein, Sidney J. Feltenstein and Peter A. Abeles for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Alexander Kalinowski, Appellant.

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

    (Argued June 1, 1928;
    decided June 19, 1928.)
    Appeal from a judgment of the Supreme Court, rendered January 18, 1928, at a Trial Term for the county of Cayuga, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Charles T. Whelan for appellant.

      Benn Kenyon, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Charles Kwiatkousky, an Infant, by John Kwiatkousky, His Guardian ad Litem, Appellant, v. John Nadolny, Respondent. John Kwiatkousky, Appellant, v. John Nadolny, Respondent.

      Negligence ■— machinery ■— child injured by placing hand in meat chopping machine while waiting in meat market for his order to be filled.

      Kwiatkousky v. Nadolny (2 cases), 222 App. Div. 832, affirmed.
    (Argued June 1, 1928;
    decided June 19, 1928.)
    Appeal, in each of the above-entitled actions, from a judgment, entered January 30, 1928, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. 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 loss of services and expense caused by the injuries to his son. Defendant conducted a retail meat market in which there was an electrically driven meat chopping machine. The infant plaintiff, a boy nine years of age, was sent to the market by his mother to purchase chopped meat. The defendant placed some meat in the chopper, started it and leaving it in operation went into the ice box. While he was absent the boy placed his hand in at the top of the machine and as a result lost three fingers. The Appellate Division dismissed the complaint on the ground that the boy was negligent as matter of law, if sui juris, and if not, the negligence of his mother in permitting him to touch the machine was attributable to him.

      Thomas J. Cuff and Milton Pinkus for appellants.

      Robert P. Beyer and Edgar F. Hazleton for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    William C. Parrott, Respondent, v. Harry J. Smith, Appellant.

      Libel — alleged libelous statements in letter written by defendant, plaintiff’s former employer, to his present employers — defense that statements were privileged and believed to be true.

      Parrott v. Smith, 222 App. Div. 713, affirmed.
    (Argued June 1, 1928;
    decided June 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 7, 1927, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was to recover damages for an alleged libelous letter written by defendant, who had formerly employed plaintiff, to the plaintiff’s present employers. The defenses were that the letter was a privileged communication and that the defendant had reasonable ground for believing the statements therein contained to be true.

      Richard R. Martin for appellant.

      Willard R. Pratt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alfred W. Babcock, an Infant, by Jennie Babcock, His Guardian ad Litem, Appellant, v. Simon E. Fitzpatrick et al., Doing Business under the Name of J. J. Fitzpatrick & Son, Respondents.

      Negligence — nuisance — proximate cause — dynamite caps left by defendants’ employees under porch, of house and carried away by nephew of occupant — plaintiff injured while exploding one — act of defendants’ employees in leaving caps not proximate cause of injury.

      Babcock v. Fitzpatrick, 221 App. Div. 638, affirmed.
    (Argued June 1, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered November 21, 1927, 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 in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of and maintenance of a nuisance by the defendants who were contractors engaged in laying a water pipe line. In the course of the work defendants’ employees stored some tools under the porch of an adjoining house, and it becoming necessary to blast nearby, a box containing dynamite percussion caps was left there. A nephew of the occupant of the house, about eleven years of age, found the box and joining some other boys, amongst whom was the plaintiff, a boy twelve years of age, they went to a deserted pier and tried to explode the caps. Plaintiff succeeded in exploding one and as a result had some of his fingers blown off. The Appellate Division held that, assuming the placing of the caps under the porch to have been wrongful, it was not the proximate cause of the plaintiff’s injuries.

      Walter A. Fullerton for appellant.

      Hugh, Reilly for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. George Appel, Appellant.

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

    (Argued June 4, 1928;
    decided June 19, 1928.)
    Appeal from a judgment of the Supreme Court, rendered January 14, 1928, at a Trial Term for the county of Queens, upon a verdict convicting the defendant of the crime of murder in the first degree.

      James F. Barry and Richard J. Barry for appellant.

      Richard S. Newcombe, District Attorney (Thomas F. Thornton of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


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    The People of the State of New York ex rel. Israel Margolis, Appellant, v. Joseph A. Warren, Police Commissioner of the City of New York, Respondent. The People of the State of New York, Respondent.

      Extradition ■— habeas corpus ■— writ to determine legality of relator's imprisonment under rendition warrant — evidence that relator was not in demanding State at time crime charged was committed — determination of question of fact.

      People ex rel. Margolis v. Warren, 223 App. Div. 757, affirmed.
    (Submitted June 4, 1928;
    decided June 19, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1928, which reversed an order of Special Term sustaining a writ of habeas corpus, dismissed the writ and remanded the relator to custody. The proceeding was instituted to determine the legality of the relator’s imprisonment under a rendition warrant issued by the Governor of this State for his surrender to the State of< New Jersey as a fugitive from justice. The Governor of the State of New Jersey made a requisition upon the Governor of this State for the arrest and surrender of the relator as a fugitive from justice. The requisition was accompanied by authenticated copies of an indictment, affidavits and warrant, charging relator with larceny and receiving stolen property, which the Governor of the State of New Jersey certified to be crimes under the laws of that State. The Governor of the State of New York thereupon issued his warrant for the arrest and surrender of the relator. On the hearing relator introduced testimony to the effect that he was not and the People introduced evidence that he was in the State of New Jersey at the time the crime was committed. The People argued that the question of fact thereby presented was exclusively for the Governor to determine.

      Joseph Weber and Haskel Jacobs for appellant.

      Joab H. Banton, District Attorney (Felix C. Benvenga and Edward V. Loughlin of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. William Feuer and Leo Feuer, Appellants.

      Crimes — receiving stolen goods ■ — judgment of conviction affirmed,.

      People v. Feuer, 223 App. Div. 703, affirmed.
    (Argued June 4, 1928;
    decided June 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 3, 1928, which affirmed a judgment of the Court of General Sessions of the county of New York, rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property.

      Moses A. Sachs for appellants.

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

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


text:
    Moses H. Harris, Appellant, v. The Bedell Company et al., Respondents.

      Specific performance — lease — provision for lapse of renewal clause if lessor shall “ acquire ” adjoining property and file plans for new building — acquisition of fee of property not required — long lease sufficient — complaint in action to compel specific performance of option to renew lease, dismissed.

      Harris v. Bedell Co., 222 App. Div. 467, affirmed.
    (Argued June 4, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered February 17, 1928, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to compel specific performance of a claimed option of renewal in a sublease made by defendant Bedell Company to the plaintiff. The sublease provided that if the lessor, at least six months before the expiration, “ shall have acquired ” adjoining premises and shall have filed plans for a new building and given notice thereof to the tenant, then the option to renew shall cease. The lessor acquired the adjoining property on a long lease, filed plans for a new building and gave notice to the lessee within the required time. It was contended in this action that the word “ acquired ” means acquired in fee simple and, inasmuch as defendant had obtained but a lease of the premises, the option to renew was not affected.

      Nathan L. Miller, Lyttleton Fox, Harold Otis and Isidor Bregoff for appellant.

      Clarence J. Shearn, Adolph Bloch and Charles C. Smith for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Goldenberg, Respondent, v. John Doscher et al., as Executors of Claus Doscher, Deceased, Appellants.

      Vendor and purchaser — real property — title — purchase of real property belonging to estate of decedent ■— action to recover down payment on ground transfer tax had not been fixed and paid, and was a lien upon property.

      Ooldenberg v. Doscher, 221 App. Div. 869, affirmed.
    (Argued June 4, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered October 27, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to recover the down payment made by plaintiff upon his purchase at public auction of real property forming part of the estate of Claus Doscher, deceased, upon the ground that the transfer tax on the estate had not been fixed and paid and was a lien upon the premises and, therefore, defendants could not convey a clear title thereto.

      Henry F. Cochrane for appellants.

      A. M. Dreyer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jennie Holt, Appellant, v. Georgia White, as President of Invincible Temple No. 77, Protective Order of Daughter Elks of the World, Respondent.

      Associations — expulsion of member — complaint, in action to compel reinstatement, dismissed on ground plaintiff had not exhausted her remedies within the organization.

      Holt v. White, 221 App. Div. 558, affirmed.
    (Argued June 4, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered December 22, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. Plaintiff was expelled from membership in defendant, a voluntary unincorporated association. The Special Term directed that she be restored to membership. The Appellate Division directed a dismissal of the complaint upon the ground that plaintiff had failed to exhaust her remedies within the association before applying to the courts.

      Ruth Whitehead Whaley for appellant.

      Hyman Orlean for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Fleischer, Respondent, v. Macfadden Newspaper Publishing Corporation, Appellant.

      Contract — services ■ — ■ master and servant — action for wrongful discharge — defense that services were unsatisfactory.

      Fleischer v. Macfadden Newspaper Pub. Corp., 222 App. Div. 735, affirmed.
    (Argued June 5, 1928;
    decided June 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 6, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for the alleged wrongful discharge of plaintiff in breach of his contract of employment. The defense was justification in that plaintiff had failed to perform his work to the satisfaction of his employer.

      Joseph Schultz for appellant.

      Louis J. Vorhaus and Joseph Fischer for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Lehman, Kellogg and O’Brien, JJ. Dissenting: Cardozo, Ch. J., Crane and Andrews, JJ., on the ground that the evidence is insufficient to sustain a finding that the defendant feigned dissatisfaction with the plaintiff’s services.


text:
    Thomas J. Howard, Respondent, v. Spring Coal Company, Appellant.

      Ships and shipping — demurrage — charter — action to recover for unreasonable delay in discharging cargo.

      Howard v. Spring Coal Co., 222 App. Div. 762, affirmed.
    (Argued June 5, 1928;
    decided June 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 19, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was brought to recover for alleged unreasonable detention of plaintiff’s barge by defendant, its charterer. It appeared that the boat arrived at its destination on July 30, 1923, but was not unloaded and discharged until October 15, 1923. The question was whether the contract by the. use of the words “ free of demurrage loading and discharging ” granted to defendant freedom from demurrage during the entire period that the boat was detained.

      William E. Sims for appellant.

      James M. Gorman and Pierre M. Brown for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Belbird Realty Corporation, Appellant, v. Minnie Wolfson, Respondent.

      Vendor and purchaser — contract — specific performance — action to compel specific performance of an alleged contract to sell real property — when writing mere receipt.

      Belbird Realty Corp. v. Wolfson, 221 App. Div. 67, affirmed.
    (Argued June 5, 1928;
    decided June 19, 1928.)
    Appeal from a judgment, entered October 22, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to compel specific performance of an alleged contract to convey real property which read as follows: “ Received from Belbird Rlty. Corp. check for $100.00 as binder for the purchase of property 835 Columbus Ave. Price $68,000. Subject to 1st mtg. $30,000 at 5|% 5 yrs. Cash $20,000. Balance of $18,000 to be taken back in a purchase money mortgage for 10 yrs. payable $1,000 a year for the 1st 5 yrs. and $1,200 a year for the remaining 5 years with interest at 6% per annum. Contract to be signed Monday Jan. 12/25 at the office of Wm. M. Bennett, 15 William St., balance of $2,900 deposit to be paid on the signing of the contract. In the event of the contract not being signed the $100.00 deposit is to be returned to the purchaser.” The Appellate Division held that the writing constituted a mere receipt and that specific performance should not be granted.

      Norman S. Goetz, Sylvan Gotshal and Melvin Robbins for appellant.

      Francis G. Caffey, Stark B. Ferriss and Francis S. Ferriss for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William H. Williams, Respondent, v. The City of New York et al., Defendants, and John D. Antonopulos, Appellant.

      New York city — parks — taxpayer’s action to restrain erection of buildings in park under lease or license — park commissioner without power to lease and license an abuse of discretion.

      Williams v. Hylan, 223 App. Div. 48, affirmed.
    (Argued June 5, 1928;
    decided June 19, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 30, 1928, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and granting a new trial. The action, by a taxpayer, was brought to restrain the erection, use and occupation of two buildings in Battery Park, borough of Manhattan, under a lease or license from the commissioner of parks. The Appellate Division held that the commissioner was without power to execute a lease of park property and if the writing was a mere revocable license, the granting thereof was a clear abuse of discretion.

      Edmund L. Mooney and Wilber W. Chambers for appellant.

      George P. Nicholson, Corporation Counsel (Vine H. Smith, Josiah A. Stover and J. Joseph Lilly of counsel), for city of New York et al.

      W. B. Roulstone, Joseph Kahn and R. G. Gordon for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Michael Enright, Appellant.

      Appeal — motion to dismiss denied.

    Reported below, 221 App. Div. 26.
    (Submitted June 4, 1928;
    decided June 19, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 4, 1927, which affirmed a judgment of the Steuben County Court convicting the defendant of the crime of manslaughter in the first degree.
    The motion was made upon the ground of failure to serve the printed record on appeal.

      Guy W. Cheney for motion.

      Thomas F. Rogers opposed.
   Motion denied in accordance with stipulation.


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    The People of the State of New York, Respondent, v. Ronald Osman, Appellant.

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

    (Argued May 31, 1928;
    decided June 21, 1928.)
    Appeal from a judgment of the Kings County Court, rendered February 24, 1928, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Luke O’Reilly and William O’Dwyer for appellant.

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

Concur: Cardozo, Ch. J., Pound, Crane, Andrews and Kellogg, JJ. Dissenting: Lehman and O’Brien, JJ., upon the ground that the evidence does not show a deliberate and premeditated design to effect death.


text:
    Caroline Wilks, as Administratrix of the Estate of Joseph Wilks, Deceased, Respondent, v. Federal Telephone and Telegraph Company, Appellant, Impleaded with Another.

      Nuisance •— telephone wires — action to recover for death through coming in contact with telephone wire attached to building in close proximity to high-power wire of another company.

      Wilks v. Federal Tel. & Tel. Co., 222 App. Div. 791, affirmed.
    (Argued June 6, 1928;
    decided June 21, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 7, 1928, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiffs’ intestate alleged to have been occasioned through his coming in contact with a fallen telephone wire erected across his premises by defendant-appellant, and attached to a “ horse ” upon another building in such close proximity to high-power wires as to create a condition of potential danger. (See 243 N. Y. 351.)

      Parton Swift for appellant.

      La Fay C. Wilkie for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Etta Bressler, Appellant, v. Rule Realty Co., Inc., Respondent.

      Negligence — buildings — ice and snow — resident of apartment building injured by slipping on ice-covered front steps — when landlord not negligent in failing to remove ice and snow — contributory negligence.

      Bressler v. Buie Realty Co., Inc., 219 App. Div. 529, affirmed.
    (Submitted June 6, 1928;
    decided June 21, 1928.)
    Appeal from a judgment, entered April 4, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, a resident in a building owned by defendant, slipped upon ice which had accumulated upon the entrance steps to the building and falling received the injuries complained of. The accident occurred while rain was falling with freezing temperature. The Appellate Division held that defendant was not negligent, under the circumstances, in failing to remove or throw ashes or sawdust on the ice but that plaintiff was guilty of contributory negligence in failing to safeguard herself against the obvious slippery condition of the steps.

      Abraham, Brekstone for appellant.

      Frederick Mellor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Benjamin Ury, Respondent, v. New York City Car Advertising Company, Appellant.

      Contract — services •— master and servant — action to recover for alleged wrongful discharge from employment.

      Ury v. New York City Car Adv. Co., 222 App. Div. 736, affirmed.
    (Argued June 6, 1928;
    decided June 21, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 4,1928, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for an alleged breach of a contract whereby defendant employed plaintiff as a solicitor of advertising, it being alleged that plaintiff was wrongfully discharged before the expiration of his term of employment.

      Caruthers Ewing, Clayton J. Heermance and S. Michael Ress for appellant.

      Herman Shulman and Samuel Saltzman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Annie Weingarten, Appellant, v. Hartford Fire Insurance Company, Hartford, Connecticut, Respondent. Annie Weingarten, Appellant, v. Sterling Fire Insurance Company, Respondent. (Two actions.) Annie Weingarten, Appellant, v. Virginia Fire and Marine Insurance Company, Respondent.

      Insurance (fire) — contract — action to recover upon policies of fire insurance for damage to personal properly ■— defense that property was incumbered by chattel mortgage in violation of provision of policy presents question of fact.

      Weingarten v. Hartford Fire Ins. Co., 222 App. Div. 241, reversed.
    (Argued June 6, 1928;
    decided June 21, 1928.)
    Appeal, in each of the above-entitled actions, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 30, 1927, reversing on the law a judgment in favor of plaintiff, entered upon a verdict directed by the court in an action to recover upon a policy of fire insurance. The policies in suit contained the following clause: “ Unless otherwise ordered by agreement in writing, added hereto, this company shall not be hable for loss or damage to any property insured hereunder while incumbered by chattel mortgage, and during the time of such incumbrance, the company shall be liable only for loss or damage to any other property insured thereunder.” The plaintiff’s contention is that the policies were void by reason of a certain chattel mortgage covering the personal property insured by said policies. The plaintiff’s claim is that there was a valid agreement to release the chattel mortgage made prior to the issuing of said policies, and that, therefore, it was not a lien on the property insured.
    I. Maurice Wormser for appellant.

      Ellsworth Baker and Abram F. Servin for respondents.
   In each action order of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in the Appellate Division and in this court, upon the ground that the evidence presented a question of fact for the consideration of the jury and that there was no error of law to sustain the reversal by the Appellate Division, which reversal was upon the law and not upon the facts. No opinion.

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


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    Dan Bullard, Appellant, v. The Village of Albion, Respondent.

      Ejectment — real property — will ■— villages — validity of devise of land for park purposes — validity of resolution of village trustees accepting same.

      Bullard v. Village of Albion, 222 App. Div. 718, affirmed.
    (Submitted June 7, 1928;
    decided June 21, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1927, unanimously affirming a judgment in favor of defendant entered upon the report of a referee. The action was in ejectment and involved the validity of a devise of land to defendant to be used in perpetuity for park purposes and of a resolution of the village trustees accepting the same.

      Charles G. Signor for appellant.

      Warner Thompson for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Moe Levy et al., Copartners under the Firm Name of Champion Coat, Apron and Towel Supply Company, Appellants, v. Peter J. Cosmos, Respondent, Impleaded with Another.

      Injunction ■— contract — unfair competition ■— action to restrain former employee and associate from soliciting trade from customers of plaintiff’s assignor.

      Levy v. Cosmos, 221 App. Div. 533, affirmed.
    (Argued June 7, 1928;
    decided June 21, 1928.)
    Appeal from a judgment, entered November 21, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to restrain the defendants from serving or soliciting business from certain persons, firms or corporations, customers of plaintiff’s assignor, in violation of an alleged contract with one of the defendants, a former employee, that he would not for a term of three years after termination of his employment serve any such customers or become connected with any person or firm serving such customers in the same line of business.

      Frank H. Hiscock and Alfred B. Nathan for appellant.

      Arnold Furst and Albert A. Arnold for respondent.
   Judgment affirmed, with costs; no opinion.

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