text:
    Augustus S. Houghton et al., Appellants, v. Hector W. Thomas et al., Respondents, Impleaded with Others.

      Appeal — motion to dismiss denied.

    Reported below, 220 App. Div. 415.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 6, 1927, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term.
    The motion was made upon the ground that the Appellate Division had unanimously affirmed that part of the judgment of Special Term dismissing the complaint and that permission to appeal had not been obtained.

      Philip J. Dunn for motion.

      George A. Ferris opposed.
   Motion denied, without costs.


source: Caselaw Access Project

license: Public Domain

text:
    Louis Feldman, Respondent, v. Joseph Barshay, Appellant.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 130.)


text:
    Frederick K. Kookogey, Appellant, v. Charles A. O’Hara, Respondent, Impleaded with Others.

      Appeal — judgment entered upon order of Appellate Division dismissing appeal thereto — failure to file undertaking —• appeal to Court of Appeals dismissed.

      Kookogey v. O’Hara, 220 App. Div. 790, appeal dismissed.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from a judgment, entered May 24, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which dismissed an appeal from a judgment in favor of defendant entered upon a dismissal of the complaint by the court at Special Term.
    The motion was made upon the grounds that the Court of Appeals had no jurisdiction to entertain the appeal and of failure to file the required undertaking.

      Walter J. Welch for motion.

      William S. Sinclair opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Edward I. Heyman, Doing Business under the Firm Name of Garage Real Estate Company, Appellant, v. Sam Witkin et al., Copartners under the Firm Name of Witkin & Levine, Respondents.

      Appeal — motion to dismiss granted.

      Heyman v. Within, 220 App. Div. 761, appeal dismissed.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1927, reversing on the facts a judgment in favor of plaintiff entered upon a verdict and granting a new trial.
    The motion was made upon the ground that the Court of Appeals was without jurisdiction to entertain the appeal.

      Meyer D. Siegel for motion.

      Israel Siegel opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the People of the State of New York, by James A. Beha, as Superintendent of Insurance, Appellant. Mortimer W. Byers et al., as Trustees of Northern Insurance Company of Moscow, Russia, Respondents.

      Appeal — intermediate order — motion to dismiss appeal granted.

      Matter of People (Northern Ins. Co.), 220 App. Div. 834, appeal dismissed.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 24,1927, which affirmed an order of Special Term granting a motion for the appointment of a referee.
    The motion was made upon the ground that the order appealed from was not a final order.

      Mortimer W. Byers for motion.

      Albert Ottinger, Attorney-General (Clarence C. Fowler of counsel), opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Joseph Resigno, as Administrator of the Estate of Anthony Resigno, Deceased, Appellant, v. F. Jarka Co., Inc., Respondent, Impleaded with Another.

      Appeal — motion to dismiss denied — motion for leave to file undertaking granted.

    Reported below, 221 App. Div. 214.
    (Argued October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 9, 1927, affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion for dismissal of the complaint.
    The motion was made upon the ground that the required undertaking had not been filed.

      Charles B. McLaughlin for motion.

      Edward Gluck opposed.
   Motion denied, without costs; motion for leave to file undertaking granted, without costs.


text:
    The People of the State of New York, Respondent, v. John J. Phelan, Appellant.

      Appeal — stipulation to withdraw — motion to dismiss appeal granted.

      People v. Phelan, 218 App. Div. 849, appeal dismissed.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1926, which affirmed a judgment of the Nassau County Court rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property in the first degree.
    The motion was made upon the ground that the appeal had been withdrawn by stipulation.

      Elvin N. Edwards, District Attorney, for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York, Appellant, v. John J. Phelan, Respondent.

      Appeal — stipulation to withdraw — motion to dismiss appeal granted.

      People v. Phelan, 218 App. Div. 849, appeal dismissed.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 30, 1926, which reversed a judgment of the Nassau County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.
    The motion was made upon the ground that the appeal had been withdrawn by stipulation.

      Elvin N. Edwards, District Attorney, for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    The People of the State of New York ex rel. The Dexter Sulphite Pulp and Paper Company, Appellant, v. James Hughes et al., Constituting the Board of Assessors of the Town of Osceola, Respondents.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 35.)


text:
    Edna G. Holbrook, Respondent, v. John W. Shepard, as Executor of Richard H. Greene, Deceased, et al., Defendants, and Anna S. Greene et al., Appellants.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 618.)


text:
    Frederick S. Dickinson et al., Appellants, v. John Springer et al., Copartners under the Firm Name of Steelman & Birkins et al., Respondents, Impleaded with Others.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 203.)


text:
    The People of the State of New York ex rel. Benny Sabatino, Respondent, v. Edgar S. Jennings, as Warden of Auburn Prison, Appellant.

      Appeal — motion to dismiss denied.

      People ex rel. Sabatino v. Jennings, 221 App. Diy. 418, appeal dismissed.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 25,1927, which reversed an order of Special Term dismissing a writ of habeas corpus, sustained said writ and directed the discharge of relator.
    The motion was made upon the ground of failure to include in the printed record the opinion of the Appellate Division.

      Benny Sabatino, in person, for motion.

      Albert Ottinger, Attorney-General (Henry C. Henderson of counsel), opposed.
   Motion denied.


text:
    Westchester Mortgage Company, Appellant and Respondent, v. Grand Rapids and Ionia Railroad Company et al., Defendants. John A. Van Rensselaer, Appellant and Respondent; Marian R. Kennedy et al., as Executors of Henry V. R. Kennedy, Deceased, et al., Respondents.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 194.)


text:
    The People of the State of New York ex rel. Clara L. Neisel, Appellant, v. John F. Gilchrist et al., Constituting the State Tax Commission, Respondents.

      Appeal — unanimous affirmance — motion to dismiss appeal granted.

      People ex rel. Neisel v. Gilchrist, 219 App. Div. 650, appeal dismissed.
    (Argued October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 7, 1927, which unanimously affirmed a determination of the State Tax Commission relative to the personal income tax of the relator.
    The motion was made upon the ground that permission to appeal to the Court of Appeals had not been obtained.

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for motion.

      Simon H. Rifkind, Robert F. Wagner and Lawrence Graves opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Austin Nichols & Co., Inc., Appellant, v. Compania Trasatlantica, Respondent.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 624.)


text:
    In the Matter of the City of New York Relative to Acquiring Title to Lands on West Two Hundred and Fifth Street in the Borough of Manhattan. In the Matter of Northern Terminal Corporation of New York, Appellant; The Chamberlain of the City of New York et al., Respondents.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 497.)


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

      Appeal — failure to serve printed record — motion to dismiss appeal denied.

    Reported below, 220 App. Div. 333.
    (Submitted October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 28,1927, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendant of the crime of unlawful possession of a firearm.
    The motion was made upon the ground that the printed record on appeal had not been served or filed as required by the Code of Criminal Procedure.

      Joab H. Banton, District Attorney (Matthew F. Mahan of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed unless within ten days defendant moves for an extension of time and to be relieved of his default, in which event the decision of this motion to dismiss the appeal will stand over until the hearing and decision of such last-mentioned motion.


text:
    Marie Larsen, Appellant, v. John Lester, Respondent.

      Appeal — failure to file undertaking — filing of uncertified return — motion to dismiss appeal denied.

    Reported below, 218 App. Div. 788.
    (Argued October 3, 1927;
    decided October 11, 1927.)
    Motion to dismiss an appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 7, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.
    The motion was made upon the grounds that no undertaking had been filed and that the return as served and filed was uncertified.

      George J. Stacey for motion.

      Theodore H. Lord, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless within ten days appellant files and serves an undertaking in prqper form perfecting her appeal and files a corrected return and pays ten dollars costs, in which event the motion will be denied.


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    The People of the State of New York, Respondent, v. Carmine Loungo, Appellant.

      Crimes — unlawful possession of drug —failure of proof of conscious possession.

      People v. Loungo, 220 App. Div. 828, reversed.
    (Argued October 12, 1927,
    decided October 18, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1927, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendant of the crime of unlawful possession of a drug in violation of section 133 of the Sanitary Code.

      John Caldwell Myers and John F. Keating for appellant.

      Joab H. Banton, District Attorney (Edwin B. McGuire of counsel), for respondent.
   Judgment of Appellate Division and that of Special Sessions reversed and defendant discharged on ground that there was a failure of proof of conscious possession of a prohibited drug.

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


text:
    In the Matter of James D. Hall et al., Appellants, against The Chatham Electric Light, Heat and Power Company et al., Respondents. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — boy under eighteen years of age killed while employed as member of repair gang on electric wires — claim that father was partially dependent on earnings — claim for double indemnity.

      Matter of Hall v. Chatham Elec. L., H. & P. Co., 220 App. Div. 18, affirmed.
    (Argued October 4, 1927;

    decided October 18, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 3, 1927, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. Appellants contended that the father was partially dependent upon the earnings of his son, killed in the course of his employment as a member of a repair gang repairing wires of a public service corporation engaged in the manufacture and distribution of electricity, and hence entitled to compensation under subdivision 4 of section 16 of the Workmen’s Compensation Law; and that the son, being under eighteen years of age, was killed whilst employed in violation of the Labor Law, and that under section 14-a of the Workmen’s Compensation Law, claimants are entitled to double the indemnity prescribed by section 16 of that law.

      Ransom H. Gillett for appellants.

      Neile F. Towner and Walter S. Archibald for respondents.

      Albert Ottinger, Attorney-General, for State Industrial Board, 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 Arthur Pfeiffer et al., Respondents, against Nathan Schweitzer Company et al., Respondents. Armour and Company et al., Appellants; State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — workmen in general employ of one firm injured while repairing plant of another — which chargeable with payment of compensation.

      Matter of Pfeiffer v. Schweitzer Co., 219 App: Div. 845, affirmed.
    (Argued October 4, 1927;
    decided October 18, 1927.)
    Appeal from two orders of the Appellate Division of the Supreme Court in the third judicial department, entered March 16, 1927, each affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. Claimants, while in the general employ of Armour and Company, were injured while engaged in repairing a leak in the refrigerating plant of the Schweitzer Company. The question was as to which firm was chargeable with payment of compensation.

      Selig Edelman for appellants.

      William B. Davis and E. C. Sherwood for Nathan Schweitzer Company et al., respondents.

      Albert Ottinger, Attorney-General, for State Industrial Board, respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    In the Matter of Mary A. Millard, Individually and as Executrix of Edwin M. Millard, Deceased, et al., Appellants. John E. Moore Company, Respondent.

      Corporations — stockholders — petition by minority stockholders for appointment of appraisers to determine value of stock denied where it appears that resolution of majority stockholders to sell property has been rescinded.

      Matter of Millard v. Moore Co., 221 App. Div. 113, affirmed.
    (Argued October 3, 1927;
    decided October 18, 1927.)
    Appeal from two orders of the Appellate Division of the Supreme Court in the first judicial - department, entered June 24, 1927, one reversing an order of Special Term which granted a motion for the appointment of appraisers to determine the value of stock of the John E. Moore Company owned by petitioners, and the other reversing an order of Special Term which denied a motion to vacate the order appointing such appraisers. At a meeting of the stockholders of the John E. Moore Company a resolution was adopted authorizing the sale of certain property. Petitioners, minority stockholders, served notice that they objected to the proposed sale; demanded that the corporation purchase their stock and served on the officers of the corporation papers in support of their motion for the appointment of appraisers. Thereafter, at meetings of the directors and stockholders, resolutions were adopted abandoning the proposed sale.

      Almet Reed Latson for appellants.
    I. Maurice Warmser and Joseph S. Johnston for respondent.
   Order in each proceeding affirmed, with costs; no opinion.

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


text:
    In the Matter of Evelyn Doyle, Respondent, against Natural Art Embroidery Company et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — injury to finger from infection following pin prick.

      Matter of Doyle v. Natural Art Embroidery Co., 219 App. Div. 754, affirmed.
    (Submitted October 4, 1927;
    decided October 18, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 2, 1927, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. Claimant, while engaged in her occupation of hand finisher in the embroidery business conducted by defendant, employer, stuck herself with a pin. Infection developed causing permanent injury to her right middle finger.

      William H. Foster for appellant.

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

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


text:
    In the Matter of Mabel Morea, Respondent, against The Baltimore and Ohio Stores, Inc., et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation ■ — • master and servant — death from accident in course of employment ■ — • sufficiency of notice and of proof.

      Matter of Morea v. B. & O. Stores, Inc., 219 App. Div. 848, affirmed.
    (Argued October 4, 1927;
    decided October 18, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 25, 1927, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. There was evidence that claimant’s husband was struck in the back by an iron door causing injury from which he subsequently died. Appellant contended that there was neither timely notice of the accident or of death nor sufficient proof of the accident.

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


text:
    In the Matter of Annie L. Watson, Respondent, against Daum, Rogers, Spritzer Co., et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — salesman in wholesale business injured while on way to employer’s office, resulting in death.

      Matter of Watson v. Daum, Rogers, Spritzer Co., 219 App. Div. 753, affirmed.
    (Argued October 4, 1927;
    decided October 18, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 2, 1927, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. Claimant’s husband, a salesman employed by a wholesale hosiery and underwear dealer, while on his way to his employer’s office in the regular course of his employment, slipped on a piece of ice and faffing sustained injuries resulting in his death.

      William B. Davis and E. C. Sherwood 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.


text:
    In the Matter of the Application of the City of New York, Appellant and Respondent, Relative to Acquiring Title to Real Property for the Improvement of the Waterfront on Upper New York Bay between Simson Avenue, Clifton and Arrietta Streets, Tompkinsville, in the Borough of Richmond. Staten Island Railway Company et al., Respondents and Appellants.
    (Submitted October 10, 1927;
    decided October 18, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 1.)


text:
    Ella Martin, an Infant, by Stephen J. Martin, Her Guardian ad Litem, Respondent, v. H. C. F. Koch & Co., Inc., Defendant. Fannie Horovitz, Appellant.

      Attorney and client — contract by guardian ad litem of infant to pay contingent fee — appeal from order allowing lesser amount.

      Martin v. Koch & Co., 220 App. Div. 707, affirmed.
    (Submitted October 5, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 14, 1927, which affirmed an order of Special Term fixing an attorney’s fees in an action to recover damages for personal injuries sustained by an infant. The guardian ad litem had entered into a contract to pay a contingent fee of forty per cent of any amount recovered. Upon a recovery of $12,000 the court allowed the sum of $2,000 for counsel fees and disbursements.

      Samuel Deutsch and Fannie Horovitz for appellant.
    No one 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 Account of Proceedings of Boudinot Keith, as Administrator with the Will Annexed of Jane M. Boudinot, Deceased. Jane B. K. Colt, Appellant; Mount Vernon Ladies’ Association of the Union, Respondent.

      Decedent’s estate — title — portrait bequeathed by will of testatrix ■ — ■ presumption of ownership from long-continued‘ possession.

      Matter of Boudinot, 220 App. Div. 715, affirmed.
    (Argued October 5, 1927;

    decided October 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial .department, entered April 29, 1927, which unanimously affirmed a decree of the New York County Surrogate’s Court awarding to the respondent herein a portrait bequeathed to it by the will of Jane M. Boudinot, deceased. The appellant contended that the portrait was not the property of the testatrix but was held by her as executrix of her mother in whose possession it was during her lifetime and who by her will bequeathed her pictures to her two daughters in equal shares. Letters testamentary were issued to Jane but she never filed any inventory, made any division of the pictures nor any accounting but remained in possession of the property until her death thirty-four years later. The surrogate held that no demand for an accounting or distribution having ever been made the presumption of ownership was with the testatrix.

      John Brooks Leavitt for appellant.

      George Gordon Battle and Addison A. Van Tine 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 City of Rochester, Appellant. Hyman Cohen, Respondent.

      Eminent domain — condemnation proceedings — costs — power of court to grant additional allowance.

      Matter of City of Rochester, 219 App. Div. 857, affirmed.
    (Argued October 5, 1927;
    decided October 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 16, 1927, which affirmed an order of the Monroe County Court granting a motion by the respondent herein for costs and' an additional allowance in condemnation proceedings.
    The following question was certified: “ Had the court power and jurisdiction to grant the additional allowance of costs which was granted to Hyman Cohen in this proceeding? ”

      Clarence M. Platt, Corporation Counsel (Charles B. Forsyth of counsel), for appellant.

      Daniel J. O’Mara for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of W. R. Grace & Co., Respondent, against Mitsubishi Shoji Kaisha, Ltd., Appellant.

      Contract ■ — • arbitration — contract for purchase and sale of goods containing arbitration clause — dispute as to sufficiency of quantity delivered —• ordered that arbitration proceed.

      Matter of Grace & Co. v. Mitsubishi Shoji Kaisha, Lid., 220 App. Div. 820, affirmed.
    (Argued October 5, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 10, 1927, which reversed an order of Special Term denying a motion, by respondent, to compel the appellant to proceed to arbitration and granted said motion. The parties hereto had entered into a written contract for the purchase and sale of goods containing a clause providing that “ any dispute arising under this agreement shall be settled by arbitration.” The purchaser claimed that the seller had failed to deliver the required amount of goods, while the seller contended that delivery was in accordance with the precise terms of the contract.

      Howard C. Kelly for appellant.

      William F. Cogswell and Andrew B. Shea 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 Application of William T. Frech, Appellant, for the Appointment of Successor Trustees under the Will of John J. Frech, Deceased. Henry H. Frech, Respondent.

      Decedent’s estate — trustees — appointment of successor trustees to sell real estate after death of life beneficiary properly denied.

      Matter of Frech, 220 App. Div. 126, affirmed.
    (Argued October 5, 1927;
    decided October 26, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 18, 1927, which reversed a decree of the New York County Surrogate’s Court in so far as it appointed successor trustees under the will of John J. Frech, deceased, to sell real estate and pay over the proceeds. The respondent herein objected to the appointment of successor trustees on the ground that the will provided for a sale only by the original trustee and that the corpus of the estate was in the remaindermen subject only to the interest of the life beneficiary who had died, and hence no necessity or authority existed for the appointment of successor trustees.

      Walter A. Fullerton, C. B. Petchtle and William F. Carell for appellant.

      A. F. Walsh 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 Parker Newhall, Respondent, against Royal Indemnity Company, Appellant.

      Contract — arbitration — indemnity bond containing arbitration clause — ordered that arbitration proceed.

      Matter of Newhall v. Royal Indemnity Co., 221 App. Div. 803, affirmed.
    (Argued October 5, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 13, 1927, which affirmed an order of Special Term granting a motion to compel the appellant herein to proceed to arbitrate certain differences arising out of a bond issued by it in favor of the Apple Growers Association of Hood River, Oregon, purporting to indemnify said association against loss caused by fraud or dishonesty of an employee. The bond provided that in the event of any differences arising the insured should have the right to have the matter submitted to arbitrators.

      Cornelius O. Donahue, William E. Lyons and Barnett Cohen for appellant.

      Stewart Maurice for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Russell E. Hamlin et al., Doing Business under the Firm Name of Hamlin Brothers, Appellants, v. G. E. Barrett & Company, Inc., Defendant, and The Belamose Corporation, Respondent.

      Jurisdiction — corporations — foreign corporation not doing business within State — service of summons properly set aside.

      Hamlin v. Barrett & Co., Inc., 220 App. Div. 763, affirmed.
    (Argued October 6, 1927;
    decided October 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1927, which reversed an order of Special Term denying a motion to set aside and vacate the service of the summons on defendant, respondent, and granted said motion. Respondent is a corporation organized under the laws of the State of Connecticut and owning and operating a factory in that State. It has no office or place of business in the State of New York. It does not now nor has it ever carried on business within the State. It has never taken out a certificate to do business, nor applied for such certificate, and has no bank account, no money or property of any kind within the State. Its selling agent, however, maintains an office in the city of New York and has placed respondent’s name on the door and listed it in the telephone directory. The following question was certified: “ Was the defendant The Belamose Corporation, at the time of the service of the summons herein, doing business within the State of New York within the meaning of section 47 of the General Corporation Law? ”

      Robert P. Patterson and William J. Carr for appellants.

      Sherman Baldwin for respondent.
   Order affirmed, with costs; question certified answered in the negative; no opinion.

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


text:
    In the Matter of Samuel Schubert et al., Appellants, against Henry M. Goldfogle et al., Constituting the Board of Taxes and Assessments of the City of New York, Respondents.

      Appeal ■ — ■ unanimous affirmance of order denying application for mandamus — appeal without permission to Court of Appeals dismissed.

      Matter of Schubert v. Goldfogle, 220 App. Div. 762, appeal dismissed.
    (Submitted October 6, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 27, 1927, which unanimously affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel defendants to partially exempt real property of petitioners from taxation.

      Samuel Friedlander for appellants.

      George P. Nicholson, Corporation Counsel (William H. King and John Moroney of counsel), for respondents.
   Appeal dismissed, 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, Respondent, v. George M. Hoblitzell, Defendant, and National Surety Company, Appellant. Charles W. Berry, as Comptroller of the City of New York, Respondent.

      Bail — forfeiture of bail before enactment of statute providing application for remission of forfeiture must be made within one year — discretion of court to grant relief not cut off by amendment.

      People v. Hoblitzell, 219 App. Div. 821, reversed.
    (Argued October 6, 1927;
    decided October 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 25, 1927, which affirmed an order of Special Term denying a motion for remission of a forfeiture of bail. Appellant executed its bail bond October 27, 1922, for the appearance of defendant Hoblitzell to answer a charge of grand larceny. Hoblitzell having failed to appear for trial, the bond was forfeited April 9, 1923. Appellant thereafter located Hoblitzell and procured his return to this State where he was arraigned and pleaded guilty to grand larceny in the second degree.

      Harry J. Robinson for appellant.

      Joab H. Banton, District Attorney (William B. Moore of counsel), for plaintiff, respondent.

      George P, Nicholson, Corporation Counsel (Henry J. Shields, J. Joseph Lilly and George H. Cowie of counsel), for defendant, respondent.
   Order of Appellate Division and that of Special Term reversed and motion granted, without costs, on authority of People v. Cohen (245 N. Y. 419); no opinion.

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


text:
    In the Matter of the Accounting of Jerome De Witt, as Trustee of the Estate of Marquis L. Hawley, Deceased, Respondent. Lovisa E. Hawley, Appellant.

      Appeal — modification by Appellate Division of decree of surrogate and remission to that court to take further proof — appeal to Court of Appeals dismissed.

      Matter of Hawley, 219 App. Div. 216, appeal dismissed.
    (Argued October 6, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 9, 1927, which modified a decree of the Cortland County Surrogate’s Court and remitted the matter to that court to take further proof and enter a new decree.

      Edmund B. Jenks and Edward F. Ronan for appellant.

      Thomas B. Kattell and Jerome De Witt for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    In the Matter of the Will of Emanuel Volk, Deceased. Philip Fehl, as Executor, Respondent; Alexina Sirois, Appellant.

      Will — probate — objections of improper execution, lack of testamentary capacity and undue influence properly overruled.

      Matter of Volk, 220 App. Div. 789, affirmed.
    (Argued October 6, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 6, 1927, which affirmed a decree of the Columbia County Surrogate’s Court admitting to probate the last will and testament of Emanuel Volk, deceased. Appellant objected to probate on the grounds of improper execution, lack of testamentary capacity and undue influence.

      R. Monell Herzberg for appellant.

      Samuel B. Coffin and Milton M. Hall for respondent.
   Order 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. Edward J. Rickert, Appellant, v. State Tax Commission, Respondent.

      Tax — mortgage tax — supplemental mortgage — exemption from taxation under section 255 of Tax Law.

      People ex rel. Rickert v. State Tax Comm., 221 App. Div. 818, reversed.
    (Argued October 7, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 8, 1927, which confirmed on certiorari a determination of the State Tax Commission that certain mortgages were subject to a mortgage tax. Relator claimed exemption under section 255 of the Tax Law providing that mortgages recorded pursuant to a provision or covenant of a recorded primary mortgage and creating no new or further indebtedness or obligation shall be exempt from tax.

      Henry Hetkin for appellant.

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for respondent.
   Order of Appellate Division reversed and determination of State Tax Commission annulled, with costs in the Appellate Division and this court, on authority of People ex rel. N. Y. Title & Mortgage Co. v. State Tax Comm. (220 App. Div. 396; affd., 245 N. Y. 603).

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


text:
    In the Matter of Adam Philippovsky, Appellant. Platon Rozdestvensky, Respondent.

      Appeal — abstract question — appeal dismissed.

      Matter of Philippovsky, 218 App. Div. 726, appeal dismissed.
    (Argued October 7, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1926, which affirmed an order of Special Term denying á motion for a writ of habeas corpus.

      Theodore H. Lord and Maurice B. Gluck for appellant.

      George Gordon Battle, Charles J. Katzenstein, Pincus Cashman and Thomas H. Mahony for respondent.
   Appeal dismissed, without costs, on the ground that only an abstract question is involved, the relator having been discharged from custody.

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


text:
    In the Matter of Julius Oppenheimer, Respondent, against George C. Kraus, as Building Inspector of the Village of Floral Park, et al., Appellants.

      Municipal corporations — building permit — mandamus to compel approved of plans and issuance of building permit properly granted.

      Matter of Oppenheimer v. Kraus, 221 App. Div. 773, affirmed.
    (Argued October 10, 1927;
    decided October 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 24, 1927, which affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel approval of plans and issuance of a building permit for the erection of a building at the corner of Jericho turnpike and Vanderbilt avenue in the village of Floral Park.

      George Trosk and L. Hamilton Rainey for appellants.

      Edward L. Frost for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Edwin W. Parsil, Respondent, v. “ Onyx ” Hosiery, Inc., Appellant.

      Pleading — contract — services — ultra vires — action to recover unpaid salary and damages for breach of contract of employment — complaint improperly dismissed.

      Parsil v. “ Onyx ” Hosiery, Inc., 220 App. Div. 148, affirmed.
    (Argued October 10, 1927;
    decided October 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1927, which reversed an order of Special Term granting a motion, by defendant, for dismissal of the complaint and denied said motion. The action was to recover unpaid salary and damages for breach of a contract providing for payment of a salary and guaranteeing payment of dividends on stock held by plaintiff during his employment. Defendant contended that the contract was ultra vires.

    The following questions were certified:
    “1. Does the first cause of action alleged in the complaint state facts sufficient to constitute a cause of action?
    “ 2. Does the second cause of action alleged in the complaint state facts sufficient to constitute a cause of action? ”

      Abraham I. Spiro for appellant.

      Charles Robert Bailey for respondent.
   Order affirmed, with costs; first and second questions answered in the affirmative; no opinion.

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


text:
    Julius Pennachio, as Administrator of the Estate of Henry Pennachio, Deceased, Appellant, v. Jersey Ice Cream Company, Inc., Respondent.

      Appeal — motion to dismiss denied.

    Reported below, 217 App. Div. 710.
    (Submitted October 17, 1927;
    decided October 25, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 25, 1926, modifying a judgment in favor of defendant entered upon a verdict directed by the court so as to direct a dismissal of the complaint and as so modified unanimously affirming such judgment.
    The motion was made upon the ground that permission to appeal had not been obtained.

      George B. Smith for motion.

      Ernest P. Lyons opposed.
   Motion denied, with ten dollars costs.


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

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

    (Argued October 10, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Kings County Court, rendered April 27, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Edward J. Reilly and E. Ivan Rubenstein 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, Lehman, Kellogg and O’Brien, JJ.


text:
    The People of the State of New York, Respondent, v. Carmine Russo, Appellant.

      Crimes — unlawfully carrying dangerous weapon — judgment of conviction affirmed.

      People v. Russo, 220 App. Div. 739, affirmed.
    (Submitted October 12, 1927;
    decided October 28, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 22, 1927, which affirmed a judgment of the Queens County Court rendered upon a verdict convicting the defendant of the crime of carrying a dangerous weapon in violation of section 1897 of the Penal Law.

      Joseph Lonardo for appellant.

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

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


text:
    Christina Bianchi, as Administratrix of the Estate of Pietro Bianchi, Deceased, Appellant, v. Pasquale Ferrari, Defendant, and New York State Railways, Respondent.

      Negligence — railways — motor vehicles — action for death arising from collision between truck and street car.

      Bianchi v. Ferrari, 216 App. Div. 787, affirmed.
    (Argued October 12, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 21, 1926, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term, in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, while riding as a passenger upon the truck of defendant Ferrari, was killed as the result of a collision between the truck and a street railway car belonging to and operated by defendant New York State Railways.

      John M. Stull and Howard F. Barnes for appellant.

      Paul Folger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    M. P. Moller, Inc., Respondent, v. Wedgeway-Strand Theatre Co., Inc., et al., Defendants, and William W. Farley, as Receiver, and the Farash Theatre Co., Inc., Appellants.

      Replevin — conditional sale — foreclosure of mortgage covering building wherein had been installed pipe organ under contract of conditional sale — action by seller to recover organ.

      Moller, Inc., v. Farley, 219 App. Div. 750, affirmed.
    (Argued October 12, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 10, 1927, modifying and aflSrming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action in replevin to recover a pipe organ installed by plaintiff in a theatre under a contract of conditional sale. A prior mortgage covering the premises provided that all fixtures and appurtenances thereafter placed in the theatre should be considered a part of the realty. The mortgage was thereafter foreclosed and defendant Farley appointed receiver.

      Amasa J. Parker, Jr., for appellants.

      Charles G. Fryer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Cornelius Lenahan, Respondent, v. Hugh J. Sheeran, as Receiver of New York Railways Company, Appellant.

      Negligence — railroads — pedestrian struck by street car at street crossing.

      Lenahan v. Sheeran, 219 App. Div. 818, affirmed.
    (Argued October 12, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 1, 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. Plaintiff, while crossing Lenox avenue at the intersection of One Hundred and Forty-second street in the city of New York, was struck by one of defendant’s street cars and received the injuries complained of. He testified that when he reached the curb he looked to his left and saw the trolley car coming a block and a half away. When he had gone a few steps he heard the gong of a fire engine and waited for it to pass. At the same time he again looked and saw the car about half a block away. As he started to cross after the passing of the fire engine he again looked and saw the car about sixty feet away. He took á few additional steps and was struck.

      Ambrose Clogher and Roger B. Hull for appellant.

      Theodore H. Lord and Thomas F. Franklin for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Bertha Fidelman, Respondent, v. New York Rapid Transit Corporation, Appellant.

      Negligence — railroads — injury to passenger leaving subway car through stepping into space between car and platform —failure to provide guard to regulate crowd.

      Fidelman v. New York R. T. Corp., 219 App. Div. 839, affirmed.
    (Argued October 12, 1927;
    decided October 28, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 26,1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, a passenger on one of defendant’s West End fine subway cars in the borough of Brooklyn, attempted to leave at the Ninth avenue station. She testified that the car was crowded and that when the doors were opened she was carried forward with the crowd until her foot sunk in a space between the ear and platform causing her to fall; that other passengers fell and walked over her and she received the injuries complained of; that there was no guard or conductor on the car or platform to regulate the crowd.

      George D. Yeomans and Harold L. Warner for appellant.

      Isidor Weis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Alice T. S. Damon, Respondent, v. Claude H. Damon, Appellant.

      Husband, and wife — divorce — sufficiency of evidence to sustain finding of adultery.

      Damon v. Damon, 217 App. Div. 734, affirmed.
    (Argued October 13, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 1, 1926, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action for divorce. Appellant contended that the finding of adultery was against the weight of evidence.

      George Gordon Battle and Preston B. Handy for appellant.

      George Lion Cohen and Jacob S. Eisinger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paul A. Kahn, Appellant, v. Louis Imershein, Defendant, and Gerty Resnick, Respondent.

      Pleading — contract — sufficiency of complaint in action for breach of contract to purchase rights in contract for sale of real property — failure to allege tender of performance or facts excusing tender.

      Kahn v. Imershein, 219 App. Div. 721, affirmed.
    (Submitted October 13, 1927;
    decided October 28, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 4, 1927, which affirmed an order of Special Term granting a motion, by defendant, for judgment on the pleadings. The action was to recover for breach of a written contract whereby defendants agreed to purchase plaintiff’s rights in a contract for the sale, to him of certain real property. The following questions were certified:

      “ 1. Does the complaint state facts sufficient to constitute a cause of action?

      “2. Does the complaint state facts sufficient to constitute a cause of action for the recovery of the sum of $22,000, being the installment due on August 11, 1925?

      “ 3. Can the bill of particulars be considered upon this motion for any purpose?
    “ 4. If question 3 is answered in the affirmative, does the complaint state facts sufficient to constitute a cause of action when so considered with the bill of particulars?

      “ 5. If question 3 is answered in the affirmative, does the complaint state facts sufficient to constitute a cause of action for the recovery of the sum of $22,000, being the installment due on August 11, 1925, when so considered with the bill of particulars.”

      H. J. Reii and Seth V. Elting for appellant.

      Joseph Kahn and Benjamin Lichterman for respondent.
   Order affirmed, with costs, on ground that the complaint fails to state a tender of performance by plaintiff or facts excusing such tender and permitting recovery on principal of plaintiff’s readiness to perform. Third question certified answered in the affirmative; fourth and fifth questions in the negative. Other questions not answered.

Concur: Cardozo, Ch. J., Crane, Andrews, Lehman and O’Brien, JJ.; Pound, J., concurs in result; Kellogg, J., not sitting.


text:
    William K. Mott, as Trustee in Bankruptcy of McLoughlin & Savage, Inc., Respondent, v. Lee R. Reeves, Appellant.

      Bankruptcy — bulk sales — action by trustee in bankruptcy to recover from purchaser value of property of bankrupt sold in bulk in violation of section 44 of Personal Property Law.

      Mott v. Reeves, 217 App. Div. 718, affirmed.
    (Argued October 13, 1927;
    decided October 28, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 18, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought by the trustee in bankruptcy, under section 44 of the Personal Property Law, commonly known as the “ Bulk Sales Law,” to compel the defendant to account for certain property purchased from McLoughlin & Savage, Inc., before their bankruptcy and to recover the alleged value thereof. The defenses interposed were: First, that the plaintiff had no capacity to sue; second, that the transaction in question was not a sale in bulk within the meaning of the statute; and third, that the property purchased was not merchandise within the meaning of the law.

      George W. Beeves for appellant.

      Arthur L. Chapman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William J. Burns, Respondent, v. Travelers Insurance Company, Appellant.

      Insurance (liability) — action by insured against owner of colliding automobile to recover for damage to his car — counterclaim by owner of colliding car for his damages — defense by insurer of counterclaim resulting in judgment thereon — liability of insurer for costs.

      Burns v. Travelers Ins. Co., 220 App. Div. 786, reversed.
    (Argued October 13, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 12, 1927, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action is on a policy of liability insurance. Plaintiff was insured by defendant at the time of a collision between his automobile and that of another. He brought suit against the owner of the colliding car to recover his damages. A counterclaim was interposed in the suit which defendant in this action, on notice, defended. Judgment was rendered against plaintiff herein on the counterclaim. The defendant in this action has paid the amount of the verdict on the counterclaim but' has refused to pay the costs taxed upon entry of the judgment, which have been paid by the plaintiff herein. This action was brought to recover the amount of such costs.

      P. C. Dugan for appellant.

      Glenn A. Frank and Ernest P. Lyons for respondent.
   Judgment of Appellate Division and that of Trial Term reversed and complaint dismissed, with costs in all courts, upon the ground that under the circumstances of this case a liability for costs is not covered by the provisions of the policy.

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


text:
    Dale Carpenter, Appellant, v. Benjamin F. Witbeck, Respondent.

      Corporations — officers — fraud-—-action to recover from treasurer of bankrupt corporation, personally, amount paid for note or bond of corporation.

      Carpenter v. Witbeck, 219 App. Div. 749, affirmed.
    (Submitted October 13, 1927;
    decided October 28, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 6, 1927, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was brought to recover the amount paid by plaintiff for a note or bond of the Robert H. Reid Pulp and Lumber Corporation, since become bankrupt, of which defendant was at one time treasurer. It was sought to hold the defendant personally liable on the theories of fraud, constructive fraud, negligence and a violation of section 61 of the Stock Corporation Law.

      J. S. Carter for appellant.

      George J, Hatt, 2d, for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Emil Laski, Respondent, v. State of New York, Respondent, and Industries Development Corporation et al., Appellants, Impleaded with Others.

      fríen —foreclosure — action to foreclose lien for materials furnished and used in public improvement —• priority of claims against moneys due and payable by State under contract.

      Laski v. State of New York, 217 App. Div. 420, affirmed.
    (Argued October 13, 1927;
    decided October 28, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered August 31, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a lien for materials furnished and used in a public improvement and establish a first claim upon moneys due and payable by the State under the contract. The appellant Industries Development Corporation in its answer claimed the entire fund on the ground that the contractors had assigned to it all moneys due or to become due under the contract for the public improvement, by an assignment in writing filed prior to the filing of the lien of the plaintiff, respondent. The appellant Fidelity and Deposit Company of Maryland in its answer claimed the entire fund on the ground that as surety upon the performance bond given by the contractors to' the State of New York it completed the work at the request of the State after the abandonment of the work by the contractors, at a cost in excess of the balance of the fund held by the State. The trial court held that the plaintiff had a first claim and lien upon the fund, and was entitled to priority in payment therefrom; that the balance of the bond should be paid to appellant Fidelity and Deposit Company of Maryland, and that appellant Industries Development Corporation was not entitled to any payment from the fund.

      Jacob I. Goodstein for Industries Development Corporation, appellant.

      Thomas E. White and Wallace P. Harvey for Fidelity and Deposit Company, appellant.

      Jacob I. Goodstein and Charles Saleson for respondent.
   Judgment affirmed, with costs; no opinion.

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


author: Pound, J. Danforth, J.,

text:
    Pearl La Van Allen, Appellant, v. George W. Allen, Respondent.

      Husband and wife — malicious prosecution — action for malicious prosecution may not be maintained by wife against husband.

      Allen v. Allen, 220 App. Div. 759, affirmed.
    (Argued October 27, 1927;
    decided November 22, 1927
    Appeal from a judgment, entered June 30, 1927 upon an order of the Appellate Division of the Supreme Court in the first judicial department, which affirmed an order of Special Term granting a motion by defendant for judgment in his favor upon the pleadings. The action, wife against husband, was for malicious prosecution. The question was whether under section 57 of the Domestic Relations Law such an action could be maintained.

      K. Courtenay Johnston for appellant.

      Edmund L. Mooney and Wilber W. Chambers, amici curiæ.

      Louis M. Kommel, George Boochever and Max Zucker for respondent.

      Frederick Collin, amicus curiæ.

   Judgment affirmed, with costs, on the ground that the later acts of the Legislature have left unchanged the rule adopted by this court in Schultz v. Schultz (89 N. Y. 644).

Concur: Cardozo, Ch. J., Crane, Lehman, Kellogg and O’Brien, JJ.; Pound, J., dissents in opinion, in which Andrews, J., concurs.

Pound, J.

(dissenting). The complaint states a cause of action for malicious prosecution. It has been dismissed because it appears that the defendant is the husband of the plaintiff. Malicious prosecution is a personal injury. (Gen. Cons. Law, § 37-a [Cons. Laws, ch. 22].) The question is whether the fiction of legal unity or the concept of public policy adumbrated thereby defeats the right of the wife to sue her husband for personal injuries under existing statutes. The law of the rights of married women has been evolved from the archaic period of our race ” (Earl, J., in Bertles v. Nunan, 92 N. Y. 152, 156), when husband and wife were regarded in law as one person, to its present status where the recognition of the wife’s separate person and property is practically complete. The Married Women’s Acts are held to have no relation to or effect upon real estate conveyed to husband and wife jointly and they take, as at common law, as tenants by the entirety. (Bertles v. Nunan, supra.) This is a rule of property rights which stands until the Legislature changes it. It is also assumed to be the law of New York, as held in 1882 in Schultz v. Schultz (89 N. Y. 644) that a husband may libel or slander his wife, prosecute her without probable cause on criminal charges, assault her or falsely imprison her without subjecting himself to liability to her for damages, not because he is within his legal rights in thus injuring her, but because the Legislature has failed specifically to include the husband in the general grant to her of the right to sue for injuries to her person. With these exceptions, the fiction is well nigh as archaic as its origin and we are, therefore, asked to reconsider the doctrine of the leading case as applied to existing statutes.

The question first presents itself whether we have the same statutes to consider as the court then had before it. If the statutes are identical in intention, the early case might be deemed controlling. If the Legislature has expressed a different intention, we are at liberty to disregard the rule and consider only the reasons for it.

Domestic Relations Law (Cons. Laws, ch. 14), section 57 provides:

A married woman has a right of action for an injury to her person, property or character or for an injury arising out of the marital relation, as if unmarried. She is liable for her wrongful or tortious acts; her husband is not liable for such acts unless they were done by his actual coercion or instigation; and such coercion or instigation shall not be presumed, but must be proved. This section does not affect any right, cause of action or defense existing before the eighteenth day of March, eighteen hundred and ninety.”

The history of this section begins with chapter 90, Laws of 1860, which provided, inter alia, as follows:

And any married woman may bring and maintain an action in her own name, for damages, against any person or body corporate, for any injury to her person or character, the same as if she were sole.”

This section was amended by chapter 172, Laws of 1862, but not in respect to the right of a married woman to maintain an action for injuries to her person. It was repealed by Laws of 1880, chapter 245, section 38, and was non-existent when the Schultz case was decided. Between 1880 and 1890 the only statute in force on this subject was Code of Civil Procedure, section 450, which did not give a right of action but regulated procedure only. (Bennett v. Bennett, 116 N. Y. 584.) Next comes Laws of 1890, chapter 51, which reads as follows:

“ § 1. From and after the date of the passage of this act a married woman shall have a right of action for injuries to her property, injuries to her person or character, and injuries arising out of the marital relation in all cases in which an unmarried woman or a husband now has a right of action by law.

§ 2. A husband shall not be liable in damages for his wife’s wrongful or tortious acts, nor for injuries to person, property or the marital relation, caused by the acts of his wife, unless the said acts were done by actual coercion or instigation of the husband; and such coercion or instigation must be proved in the same manner as any other fact is required to be proved; but in all cases embraced in this section the wife shall be personally Hable for her wrongful or tortious acts.

“ § 3. Nothing in this act contained shall in any way affect any rights, causes of action or defenses existing at the time of the passage thereof.

“ § 4. This act shall take effect immediately.”

This chapter is indicative of the legislative purpose to change the law in some respect as evidenced by the opening words, from and after the passage of this act a married woman. shall have a right of action,” etc., and from the saving clause. The present statute (Dom. Rel. Law, § 57) contains the same saving clause and indicates March 18, 1890, as a new starting point for judicial construction. Injuries to person and property are now grouped together in the samé clause. In the act of 1860 they were covered by separate clauses. The statutory right of the wife to sue the husband for injuries to her property (with the reciprocal right of the husband to sue the wife) was recognized at an early day. (Whitney v. Whitney, 3 Abb. [N. S.] 350; Berdell v. Parkhurst, 19 Hun, 358; Howland v. Howland, 20 Hun, 472.) This change also might be regarded as significant of the legislative purpose to place injuries to person and property on the same footing. It follows that we have to construe, not the act of 1860, but a new statute far wider in its scope. It can no longer be said, as Earl, J., said in Coleman v. Burr (93 N. Y. 17, 25), that the statutes referred to touch a married woman in her relations to her husband only so far as they relate to her separate property and business.” So far as that construction was the ratio decidendi of Schultz v. Schultz (supra), it has been overruled. A married woman has had, since March 18, 1890, in the language of the statute, a right of action in all cases as if single, and her husband, as such, is no longer a necessary or proper party in her tort actions. (L. 1890, ch. 51; Dom. Rel. Law, § 57.)

We have next to consider the proper construction of the present statutes. The law says that a married woman has a right of action for an injury to her person as if unmarried. If she were not defendant’s wife, plaintiff could maintain an action against Mm for malicious prosecution. Why should the marriage relation permit the husband maliciously to prosecute Ms wife on a criminal charge without subjecting himself to liability for damages?

We are now confronted with the rule of stare decisis and enjoined to defer to cases already adjudicated. The law is said to be established by the express decision of this court that the action cannot be maintained. TMs argument, if applicable, is weighty but not conclusive. (Klein v. Maravelas, 219 N. Y. 383; Oppenheim v. Kridel, 236 N. Y. 156.) When time makes ancient rules of personal rights and remedies uncouth, illogical and productive of harm, they need not be inexorably insisted upon. Better protection may be given to such rights in the future without destroying rights acquired in the past. (Black’s Law of Judicial Precedents, pp. 218-220 and cases cited.) Moreover, if the reasons wMch led to the adoption of the rule in the Schultz case do not apply with all their force to the present case, that rule may properly be kept witMn the narrowest limits and need not be extended by analogy to the present statutes. (Judson v. Gray, 11 N. Y. 408.) So far as such statutes may be regarded as new enactments, indicative of a change in legislative intent, stare decisis should not deter the court from examimng the question anew.

We have not been backward in bringing the law into harmony with modern ideas of the marital relation. In Oppenheim v. Kridel (supra) the court dealt with another phase of the situation. Blackstone had said (3 Com. 143): The inferior [the wife] hath no kind of property in the company, care or assistance of the superior [the husband] as the superior is held to have in those of the inferior.” Therefore, the wife at common law had no right against one who had alienated the husband’s affections or had criminal conversation with Mm. Crane, J., said: Whatever may have been the rights of the wife in this particular under ancient law, there is no reason or law against her maintaining such an action to-day so long as the husband may do so.” Let us then consider the cases relied on by the respondent, not as controlling authorities, but on the strength of their reasoning.

In Schultz v. Schultz (27 Hun, 26) the General Term of the Supreme Court, first department, in the year 1882, upheld the right of the wife to sue her husband for assault. Brady, J., said that the statute was broad enough to include the husband as one of the persons against whom the wife may bring an action for assault and battery and that to allow the right in an action of that character would be in accord with the policy of the law, “ calculated to preserve peace, and in a great measure prevent barbarous acts, acts of., cruelty, regarded by mankind as inexcusable, contemptible, detestable.” Davis, J., giving at least lip service to the reasoning of his colleague, dissented on the ground that “ the doctrine of stare decisis (Freethy v. Freethy, 42 Barb. 641; Longendyke v. Longendyke, 44 Barb. 366) “ requires us to leave to the Court of Appeals, or to the Legislature, the gallant duty of setting the law free to redress, by civil actions, all the domestic disputes of husband and wife, whether committed by unbridled tongues or angry blows.” When the case reached this court an order of arrest granted therein was reversed without opinion, Danforth, J., dissenting in a long and carefully prepared, although unreported, opinion in which Finch, J., concurred. In Abbe v. Abbe (22 App. Div. 483) Hatch, J., although in harmony with the views expressed by Danforth, J., said that it was settled on authority that the action could not be maintained. In Perlman v. Brooklyn City R. R. Co. (117 Misc. Rep. 353; affd., 202 App. Div. 822) the right of the wife to maintain an action against her husband for personal injuries was denied, again on authority. “We have held that she cannot maintain an action against her husband for such an injury,” says Earl, J., in Bertles v. Nunan (supra, p. 160) and again in Coleman v. Burr (supra, p. 30). The rest is silence, except as it may be implied from opinions in other cases that the Married Women’s Acts of 1860 and 1862 were to be construed as altering the law of husband and wife in respect to a wife’s separate property and earnings only, and not as affecting torts by and against her. (Fitzgerald v. Quann, 109 N. Y. 441; Mangam v. Peck, 111 N. Y. 401.)

The fundamental question has been considered often and at length by many courts. It has been held that a wife may not, in the absence of express legislation, sue her husband for a personal tort under the Married Women’s Acts in the Federal courts (Thompson v. Thompson, 218 U. S. 611); in California (Peters v. Peters, 156 Cal. 32); in Georgia (Heyman v. Heyman, 19 Ga. App. 634); in Iowa (Peters v. Peters, 42 Ia. 182; Maine v. Maine & Sons Co., 198 Ia. 1278); in Indiana (Henneger v. Lomas, 145 Ind. 287); in Maine (Abbott v. Abbott, 67 Me. 304); in Michigan (Bandfield v. Bandfield, 117 Mich. 80; Harvey v. Harvey, 239 Mich. 142); in Minnesota (Strom v. Strom, 98 Minn. 427); in Mississippi (Austin v. Austin, 136 Miss. 61); in Missouri (Rogers v. Rogers, 265 Mo. 200); in New Jersey (Sargeant v. Fedor, 130 Atl. Rep. 207); in Rhode Island (Oken v. Oken, 44 R. I. 291); in Tennessee (Lillienkamp v. Rippetoe, 133 Term. 57); in Texas (Gowin v. Gowin, Tex. Civ. App. [264 S. W. 529]; see note, 10 Cornell Law Quarterly, 61); in Virginia (Keister v. Keister, 123 Va. 157) and in Washington (Schultz v. Christopher, 65 Wash. 496).

It has been held that the right of action exists under the statutes in Alabama (Harris v. Harris, 211 Ala. 222) ; in Arkansas (Fitzpatrick v. Owens, 124 Ark. 167); in Connecticut (Brown v. Brown, 88 Conn. 42; Bushnell v. Bushnell, 103 Conn. 583); in Nebraska (Graves v. Peck, 114 Neb. 745); in New Hampshire (Gilman v. Gilman, 78 N. H. 4); in North Carolina (Roberts v. Roberts, 185 N. C. 566, see note, 33 Yale Law Journal, 315); in Oklahoma (Fiedler v. Fiedler, 42 Okla. 124); in South Carolina (Prosser v. Prosser, 114 S. C. 45) and in Wisconsin (Wait v. Pierce, 191 Wis. 202). Whichever, way the decision turns, a vigorous dissent from the views of the majority almost invariably appears and the decision itself often depends on the language of statutes in which the right of the wife is more narrowly stated or less clearly defined than in New York at the present time. In Mississippi, for example, the court said that nothing in the statute gave the husband a reciprocal right against the wife. (Austin v. Austin, supra, see note, 38 Harvard Law Review, 383.) In New York the wife is liable (Dom. Rel. Law, § 57) “ for her wrongful or tortious acts,” and no exception is made against the husband.

The court is thus, set free to re-examine the question, not primarily by the silence of the majority in the Schultz case, the lapse of time, and the conflict of authority, for those circumstances might not justify the court in refusing to follow a well-established precedent; but by the subsequent change in the language of the statutes, which require a new consideration of the factors that determine the present legislative intent. (People ex rel. Rand v. Craig, 231 N. Y. 216, 220.)

Danforth, J.,

said that the appellant in the Schultz case rests upon the maxim that husband and wife are one at law.” The dogma of the common law by which husband and' wife were regarded as one person, the legal existence of the wife during the marriage being incorporated and consolidated or merged into that of the husband, can have little if any weight under the Married Women’s Acts now in force. Rules of. property and difficulties of procedure, dependent on the fiction of marital unity, stood in the way of the recovery of damages by the wife against the husband at common law. As they were one person, neither could sue the other. A wrong to her was an injury to him. If there was no injury to him there was none to her. The wife had neither remedy nor right. (Abbott v. Abbott, supra.) All this is ancient and obsolete learning. Whether it be regarded as a question of procedure or one of substantial right (Bennett v. Bennett, supra), the non-liability of the husband for personal torts against the wife is inconsistent with the language of the statutes as they now read. When a married woman may be a party to any action in the same manner as if she were single (Civ. Prac. Act, § 200); is alone hable for her wrongful or tortious acts (Dom. Rel. Law, § 57; Penal Law, § 1092); may carry on a separate business, own and dispose of property and contract with her husband in regard thereto as if unmarried (Dom. Rel. Law, §§ 51, 56); may sue him and be sued by him for injuries to property; may recover damages for injuries to her person against any one but her husband; may testify against him in civil and criminal actions (Civ. Prac. Act, § 346; Code Crim. Pro. § 392); may exercise the elective franchise, and may sue for the alienation of his affections or for criminal conversation, the twain are no longer one flesh in the eyes of the law; the wife’s identity ceases to be merged into that of the husband, and the ancient fiction, properly understood, merely furnishes the background for the construction of statutes and the determination of legislative intent.

On the question of construction, Earl, J., in Bertles v. Nunan (supra) says: “In construing these statutes [the Married Women’s Acts] the rule must be observed * * * that-statutes changing the common law must be strictly constmed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely- requires.” Thus read, the common-law incidents of marriage were to be swept away only by express enactments. It would follow that unless the statute expressly gave the wife a right of action against her husband, the common-law fiction of unity of persons forbade a recovery under the statute. But our decisions as to torts of the husband affecting the property of the wife cannot be reconciled with the old notion of the merger of separate identities (Wright v. Wright, 54 N. Y. 437; Wood v. Wood, 83 N. Y. 575), except on the theory that the Married Women’s Acts applied as between husband and wife, as they no longer do, solely to the wife’s separate property and earnings.

On the question of legislative intent, in Thompson v. Thompson (supra) the majority of the court refused to interpret the statute to include the right of the wife to sue the husband for personal injuries. “ We do not believe,” says Mr. Justice Day, “ that it was the intention of Congress, in the enactment of the District of Columbia Code, to revolutionize the law governing the relation of husband and wife as between themselves.” The Married Women’s Acts, concededly revolutionary, were deemed to be not so revolutionary as that. Mr. Justice Harlan, with whom concurred Justices Holmes and Hughes, dissented. He said that the judgment rendered defeated “ the clearly expressed will of the Legislature by a construction of its words that cannot be reconciled with their ordinary meaning.”

Public policy is said to favor this rule of statutory construction as safeguarding the home. “It is better to draw the curtain, shut out the public gaze, and leave the parties to forget and forgive.” (Settle, J., in State v. Oliver, 70 N. C. 60.) This doctrine has been invoked to defeat an action by an unemancipated minor child against his parent for personal injuries (20 R. C. L. 631). That question, however, is an open one in New York, nor has the common law been affected by any statute on the subject.

The reasoning against the right of the wife to maintain her action against the husband seems to-day more dialectic than persuasive in character. The present tendency of the courts is to look at the substance of rights rather than blindly to adhere to fictions and formulas. “ When logic and the policy of a state conflict with a fiction due to historical tradition, the fiction must give way.” (Blackstone v. Miller, 188 U. S. 189, 206.) Public policy is not invoked to prevent the airing in court of family troubles in general and it should not prevail more heavily against this action than against actions for divorce, separation, annulment, criminal conversation and alienation of affections, actions arising out of disputes over property, criminal prosecutions of the husband by the wife and proceedings in the Courts of Domestic Relations. (Johnson v. Johnson, 201 Ala. 41.) Moreover, as Mr. Justice Day says in Thompson v. Thompson (supra), considerations of public policy are addressed to the legislative, not the judicial branch of the government. “ In cases like the present, interpretation of the law is the only function of the courts.” Legislative intent is an illusive thing. The courts should seek it, whenever possible, in the plain meaning of plain words. Rules for determining such intent do not justify a change in the language of unambiguous statutes. (Newell Universal Mill Co. v. Muxlow, 115 N. Y. 170, 174; dissenting op., Harlan, J., in Thompson v. Thompson, supra.) Statutes changing the common law should be fairly construed in harmony with their general purpose. If they are to be construed strictly, they should also be construed sensibly. When the wife is given in law, as in fact, an existence separate from her husband for all other purposes, the courts should not, by speculating on the legislative intent, remerge her being into that of her husband and assume a legal unity of husband and wife to exist for the single purpose of protecting him when he injures her person without right. When the common-law incidents of marriage have been swept away by statute to the extent that the fiction of unity of person no longer stands in the way of redress by the wife of wrongs against her person or property by legal remedies, vestigial rights of the husband should disappear with the shattered organism.

The contention is made that the wife is amply protected without extending the husband’s liability. Aga'n public policy is sought as a guide to the legislative intent. She may, if threatened with violence, bind him over to keep the peace. (Code Crim. Pro. § 84.) If he actually commits an assault she may have him. arrested and punished, for he has no right to strike his wife or punish her under any circumstances or provocation. (Com. v. McAfee, 108 Mass. 458.) She may maintain an action against him for separate support and maintenance on the ground of cruelty. (Civ. Prac. Act, § 1161.) She may recover against him for damages to her property as if he were a stranger. (Wright v. Wright, supra; Wood v. Wood, supra.) These remedies may not be adequate. Any other person may sue the husband for reparation in damages for injuries to the person. “ Wherever there is a valuable right and an injury to it, with consequent damages, the obligation is upon the law to devise and enforce such form and mode of redress as will make the most complete reparation. A technicality must not be permitted to work a denial of justice.” (Foot v. Card, 58 Conn. 1.) The exaggerated influence of an outgrown fiction should not lead the court to withhold liability for personal injuries when the wife is the inj ured party. Separation and alimony she may not want. The punishment of the husband criminally may leave her destitute or disgrace her children. Not all torts of the husband against the wife are crimes, or even grounds for separation except as they amount to cruel and inhuman treatment. The wife may sue the husband for breach of contract. He. can be brought into court by her to defend an action on his promissory note. She may sue him for damage to her property, real or personal. If he destroys or injures her property, the work of her hands, her rights are sacredly protected. He has no right to injure her. If he breaks her arm, if he has her arrested without .cause and incarcerated, the law should not be so construed as to deny her full and adequate relief. His exemption from liability as heretofore recognized suggests, what no one claims, that he may lawfully beat his wife, maliciously injure her reputation or prosecute her criminally to gratify his malice against her. As he has no right to do these things, the wife should have her remedy against him. Consistency would seem to dictate that with the wide grant of a legal entity to the wife, the Legislature should exclude her right of action against her husband by clear words in order to defeat her remedy (cf. Married Women’s Property Act of 1882; 45 and 46 Vict, ch. 75, § 12: No husband or wife shall be entitled to sue the other for a tort,” and 1921 Mass. Gen. Laws, ch. 209, §6:'“ But this section shall not authorize suits between husband and wife ”), rather than expressly include such right to bring it into existence.

Opinions will doubtless differ to the end of time as to the sanctity of the home and the dictates of a sound public policy in relation thereto. Woman’s place has been and will continue to be the subject of limitless discussion. St. Paul exhorted wives to be subject to their husbands in everything. (Ephesians, 5:24.) Advocates of free love would abolish marriage entirely as an interference with personal liberty. We are dealing not with problems of religious duty or even of public policy or with the emancipation of women generally, but with a question of statutory construction. We are asked, for the sake of the common-law unity of husband and wife, to insert in the statute an exception that the Legislature failed to insert which is inconsistent with the general legislative purpose. Every step in the history of legislation in regard to married women, unless this is such an exception, has been in the direction of the complete abrogation of the old rule. Is not section 457 of the Domestic Relations Law to be read literally as part of a harmonious system designed to permit married women to seek redress for any violation of their rights by any person? (Bennett v, Bennett, supra.) We think that it should be so read, even though the Legislature has not in section 57, as in section 51, used the specific words including the husband.” Immunity is barbarous. Liability may result in abuse, as in all cases of liability. But justice must not be sacrified because the law may become an instrument of injustice. We, therefore, arrive at the conclusion that the fiction of marital unity may not be invoked under existing statutes to deny the wife a remedy against her husband for his personal torts.

While a married woman may sue her husband as if unmarried, the marital relation would be a defense to some acts which would be not only torts but felonies if committed against an unmarried woman without her consent. (Penal Law, § 2010.) The Legislature did not change the character of the marriage state in this regard. “ It was not their purpose, however, to absolve a married woman from the duties which she owes to her husband.” (Coleman v. Burr, supra.) The action for assault would then be subject to the defense that the husband was in the exercise of his marital rights and that the wife was in law a consenting party thereto. The statute, as we have construed it, affects remedies, not rights.

The judgment should be reversed, with costs in all courts, and the motion denied, with ten dollars costs.


text:
    The People of the State of New York ex rel. Joseph C. Stencil et al., Appellants, v. Henry Hull, as Sheriff of the County of Orange, Respondent.

      Appeal — habeas corpus — appeal dismissed where judgment of conviction has been reversed.

      People ex rel. Stencil v. Hull, 219 App. Div. 793, appeal dismissed.
    (Argued October 11, 1927;
    decided November 22, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2,1927, which affirmed an order of Special Term dismissing a writ of habeas corpus.

      Henry Hirschberg for appellants.

      Elmer H. Lemon, District Attorney, for respondent.
   Appeal dismissed on the ground that the judgment of conviction of the relators has been reversed.

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


text:
    In the Matter of the Bronx Parkway Extension Highway. The County of Westchester et al., Appellants; The New York Central Railroad Company, Respondent.

      Highways — jurisdiction — board of supervisors of Westchester county without jurisdiction to institute proceedings to determine necessity of proposed State highway.

      Matter of Bronx Parkway Extension Highway, 219 App. Div. 798, affirmed.
    (Argued October 4, 1927;
    decided November 22, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 11,1927, which reversed a determination of the board of supervisors of Westchester county that the laying out and construction of a highway known as the Bronx Parkway Extension across the tracks and roadway of the Harlem division of the New York Central railroad at a point about two miles north of Valhalla in the town of Mount Pleasant is necessary. The Appellate Division held that the State Superintendent of Public Works had exclusive jurisdiction to institute the proceeding.

      Charles H. Peck and Henry R. Barrett for appellants.

      Frederick L. Wheeler, George H. Walker and Alexander S. Lyman for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Max Price, Appellant, v. National Surety Company, Respondent.

      Bond — Highway Law — motor vehicles — cause of action for loss of services of infant child and medical expenses for her cure within provisions of section 282-b of Highway Law and bond given pursuant thereto.

      Price v. National Surety Company, 221 App. Div. 56, reversed.
    (Submitted October 6, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed an order of Special Term denying a motion by plaintiff to strike out the answer and for summary judgment for the relief demanded in the complaint. The action was brought upon a bond given under section 282-b of the Highway Law whereby defendant agreed to pay any judgment not in excess of an amount named which might be recovered against its principal for death or injury to persons or property caused by the operation of a motor vehicle. Plaintiff sued and recovered for loss of services and expense incurred by reason of an injury to his infant daughter from being struck by the motor vehicle of insured.
    The following question was certified: “ Is a cause of action for loss of services of an infant child and medical expenses for her cure, embraced within the provisions of section 282-b of the Highway Law and a bond given pursuant thereto? ”

      Charles Solomon, Louis P. Goldberg and Samuel S. Rosh for appellants.

      John C. MacCarthy for respondent.
   Order of Appellate Division reversed and motion for summary judgment granted, with costs in all courts on dissenting opinion of Proskauer, J., below; question certified answered in the affirmative.

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


text:
    Sarah A. Wheeler, Respondent, v. Peter W. Foy et al., Defendants, and Slawson & Hobbs et al., Appellants.

      Fraud — principal and agent — dealing by real estate broker and its employees in property of client for their own personal profit —judgment for amount of commissions paid and for difference in price represented and that actually obtained.

      Wheeler v. Foy, 217 App. Div. 782, affirmed.
    (Argued October 13, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered January 4,1927, 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 dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff against the appellants herein. Plaintiff, claiming to have had an interest in premises 163 West Seventy-second street, in the borough of Manhattan, city of New York, brought this action to set aside a contract for the sale thereof, and to set aside a deed conveying said premises pursuant to such contract, upon the ground that the brokers in said transaction had, by means of false and fraudulent representations made to plaintiff’s agent and attorney, procured such contract and conveyance for itself at an inadequate price, through the medium of the purchaser who was its dummy and who held the property for the brokers who subsequently sold it at an increased price. The Appellate Division held that the brokers and their employees dealt with plaintiff’s property for their own personal profit and directed judgment in favor of plaintiff for the amount of the commissions obtained upon the sale and for the difference between the sum represented to plaintiff as the purchase price and the price obtained from the subsequent sale.

      Louis W. Stotesbury for Slawson & Hobbs, appellants.

      Meier Steinbrink, Martin Lippman and Harold M.

      Kennedy for Gay Holding Corporation et al., appellants.

      Edward F. Spitz and William J. Dean for respondent.
   Judgment affirmed, with costs, no opinion.

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


text:
    Fredericka Hehr, as Administratrix of the Estate of Charles Hehr, Deceased, Respondent, v. National Ben Franklin Fire Insurance Company et al., Appellants, Impleaded with Others.

      Insurance (fire) — liability for loss from explosion.

      Hehr v. Nat. Ben Franklin Fire Ins. Co., 220 App. Div. 760, affirmed.
    (Argued October 14, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 13, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon policies . of fire insurance for damage to premises from fire and an explosion of gas. The question was whether under the standard fire insurance contract of the State of New York, which provides: "Unless otherwise provided by agreement in writing added hereto, this company shall not be liable for loss and damage occurring * * * by explosion, or lightning, unless fire ensues, and, in that event, for loss or damage by fire only,” the defendant insurance companies were liable for explosion damages.

      James M. H. Wallace, Cleveland Pond and Joseph Swart for appellants.

      Hamilton Ward for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Barbara Wagonblatt, as Administratrix of the Estate of Joseph Wagonblatt, Deceased, Respondent, v. Erie Railroad Company, Appellant.

      Negligence — railroads — trackwalker killed through derailment 0/ car.

      Wo,gonblalt v. Erie R. R. Co., 219 App. Div. 858, affirmed.
    (Argued October 14, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 19,1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The plaintiff’s intestate was in the employment of the Dixon Construction Company which had a contract to maintain the defendant’s right of way at the place of the accident. It was the decedent’s duty to patrol the defendant’s tracks for a distance of a quarter of a mile to look out for landslides. The accident occurred on a steep grade between Dayton and Gowanda. The plaintiff’s intestate was standing in the doorway of a shanty on the defendant’s right of way when a freight train, operated by the defendant down this grade with eighty-five cars, parted after fifty-six cars and the engine had passed the shanty. The fifty-seventh car derailed crosswise on the track and fell upon the shanty, killing the intestate.

      John W. Ryan for appellant.

      Hamilton Ward and Dana L. Spring for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    L. N. Jackson Company, Inc., Respondent, v. Erie County Trust Company, Appellant.

      Banks and banking — fraud—false information —extension of credit to insolvent■ corporation induced by false statement of bank.

      Jackson Co., Inc., v. Erie County Trust Co., 219 App. Div. 852, affirmed.
    (Argued October 14, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 17, , 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was for fraud and deceit. Plaintiff was a dealer in oils with- its office in San Francisco. Having received inquiries for quotation of prices from East Aurora Vegetable Oil Refineries, Inc., it demanded a bank reference, whereupon it received the following telegram:
    “ 1920 Aug. 24 A. M. 7 15
    “ A 95D 23

      “ East Aurora, N. Y. 9A 24 “ L. N. Jackson and Co., Inc.,

      “ San Francisco, Calif.

      “ Referring East Aurora Vegetable Oil Refineries, Inc., now refining successfully with excellent prospects consider shipment with draft bill lading safe management honest and reliable.
    “ ERIE COUNTY TRUST COMPANY.”
    It thereupon shipped five carloads of oil to the East Aurora Company. Only one was paid for. There was evidence that the statements in the telegram were false and that the East Aurora Company was insolvent to the knowledge of defendant when it was sent.

      Wortley B. Paul and Wells W. Parker for appellant.

      Edward C. Schlenker, Joseph H. Morey and David T. Murray for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ledyard Cogswell, Jr., et al., Appellants, v. Albertine Topel et al., Respondents.

      Real property — partition — title — complaint in action to partition real property dismissed.

      Cogswell v. Topel, 221 App. Div. 821, affirmed.
    (Argued October 14, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 16, 1927, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term. The action was for partition of real property. On motion to confirm the report of a referee the Special Term disapproved the findings in so far as they stated that the plaintiffs are seized and possessed as tenants by the entirety of a vested remainder in fee simple of an equal undivided one-half of the real property described in the complaint after the death of John August Dargatz, and holding that the sole interest of the plaintiffs in said real property is an estate by the entirety during the life of said John August Dargatz and that, as a matter of law, they are not' entitled to maintain this action, directed a dismissal of the complaint.

      Charles E. Nichols, Jr., for appellants.

      Ernest W. Rieck for respondents.
   Judgment affirmed, with costs; no opinion.

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