text:
    In the Matter of the Claim of D. A. French, Respondent, against Boulevard Advertising Corporation et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — sign painter injured from fall of scaffold — contention he was an independent contractor.

      Matter of French v. Boulevard Adv. Corp., 221 App. Div. 831, affirmed.
    (Argued January 9, 1928;
    decided January 20, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 7,1927, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, a sign painter, was injured through the falling of a scaffold on which he was working. Appellants contended that he was not an employee but an independent contractor.

      T. Carlyle Jones and Howard F. Barns 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.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Claim of Peter W. Bielmeier, Respondent, v. New York Central Railroad Company, Appellant. State Industrial Board, Respondent.

      Workmen's compensation — master and servant — railroads — interstate commerce — workmen employed in repairing compressed air line in railroad yard not engaged in interstate commerce.

      Matter of Bielmeier v. N. Y. C. B. B. Co., 222 App. Div. 706, affirmed.
    (Argued January 10, 1928;
    decided January 20, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 7, 1927, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant while repairing a compressed air line in one of defendant’s yards, in the regular course of his employment, received an injury which destroyed the sight of his right eye. Defendant contended that the air line was a necessary instrumentality for the proper movement of interstate trains through the yard in question; that, therefore, claimant was engaged in interstate commerce and the State Industrial Board was without jurisdiction to make the award.

      Robert E. Whalen for appellant.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondent.
   Order affirmed, with costs, on authority of Shanks v. D., L. & W. R. R. Co. (239 U. S. 556).

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


text:
    Thomas Lang et al., Appellants, v. Brooklyn City Railroad Company, Defendant, and The Brooklyn Union Gas Company, Respondent.

      Parties — trusts — assignment by workman to insurance carrier of his entire cause of action against third parties for injuries from their negligence — declaration of trust by insurance carrier as to any surplus over amount it paid workman — latter may not be joined as coplainliff in action against third parties.

      Lang v. Brooklyn City B. B. Co., 217 App. Div. 501, affirmed.
    (Argued January 10, 1928;
    decided January 20, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1926, which affirmed an order of Special Term granting a motion by defendant-respondent to strike from the complaint the name of Thomas Lang as a party plaintiff. The following question was certified: “ Where a workman has been paid a lump sum as compensation by an insurance carrier and has assigned to the carrier his entire cause of action against third parties for damages by reason of injuries caused by the negligence of said third parties, pursuant to section 29 of the Workmen’s Compensation Law, if the insurance carrier thereafter irrevocably declares itself a trustee for the benefit of the workman of any surplus that may be recovered, by way of judgment or settlement, in any action or otherwise, as damages for said injuries from the negligent third parties, over and above what the carrier has paid to the workman as compensation, does such declaration of trust constitute the workman a party in interest so that he may be properly joined with the insurance carrier as a coplaintiff in an action against the negligent third parties?”

      Joseph Lorenz and John F. X. Finn for appellants.

      Maximilian Moss and Jackson A. Dykman for respondent.
   Order affirmed, with costs, question certified answered in the negative; no opinion.

Concur: Crane, Andrews and O’Brien, JJ.; Cardozo, Ch. J., Pound, Lehman and Kellogg, JJ., concur upon the ground that the declaration of trust pleaded in the complaint does not create an interest in favor of the cestuis que trust in advance of recovery or collection by the trustee.


text:
    Mark L. Dunn, Appellant, v. James Shewan & Sons, Inc., Respondent.

      Negligence — injury from fall caused by rung of ladder giving way — action against alleged manufacturer to recover damages — insufficiency of evidence to warrant finding either that defendant built ladder or that it was negligently manufactured.

      Dunn v. Shewan & Sons, Inc., 219 App. Div. 805, affirmed.
    (Argued January 10, 1928;
    decided January 20, 1928.)
    Appeal from a judgment, entered March 22, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff-entered-upon a verdict and directing a dismissal of the complaint. The action was to recover damages for injuries sustained by the plaintiff in falling from a ladder into the hold of a vessel. Plaintiff contended that the defendant built the ladder and built it so negligently that upon use by the'plaintiff, one of the rungs pulled out, precipitating the plaintiff to the bottom of the ship and causing him to fracture his arm. The -Appellate Division held that there was no evidence to warrant the jury’s finding that the ladder which broke was manufactured or furnished by the defendant and insufficient evidence to sustain the claim that it was negligently manufactured.

      Benjamin Pepper, Dennis F. O’Brien, Arthur F. Driscoll and Edward C. Baftery for appellant.

      Francis J. MacIntyre and Michael F. Dee for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Max Fine & Sons, Inc., Respondent, v. The Lindarose, Inc., et al., Defendants, and Wolf Gelband, Appellant.

      Appeal — failure to file undertaking — motion to dismiss appeal denied on conditions.

    Reported below, 220 App. Div. 616.
    (Submitted January 16, 1928;
    decided January 20, 1928.)
    Motion to dismiss an appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 6, 1927, affirming a judgment in favor of plaintiff entered upon the report of a referee.
    The motion was made upon the grounds that appellant had failed to file the required undertaking and return and prosecute the appeal.

      Samuel W. Dorfman for motion.

      Samuel Okin opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appellant gives the statutory undertaking and files the return within ten days and pays within said time ten dollars costs, in which event motion will be denied.


author: O’Brien, J.

text:
    In the Matter of the Application of Horace W. Dresser, Appellant. Donner Steel Company, Inc., Respondent.

      Stocks and stockholders — corporations — motion for appointment of appraisers to appraise value of stock owned by petitioner.

      Matter of Dresser, 221 App. Div. 786, affirmed.
    (Argued November 22, 1927;
    decided February 14, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 5, 1927, which affirmed an order of Special Term denying a motion for the appointment of appraisers to appraise the value of petitioner’s stock in the Donner Steel Company, Inc., pursuant to subdivision 12 of section 38 of the Stock Corporation Law.

      E. C. Schlenker for appellant.

      James McCormick Mitchell for respondent.
   Order affirmed, with costs; no opinion.

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

O’Brien, J.

(dissenting). The issue before us is whether the authorization of new shares having preferences superior to those of the old ones alters the preferential rights of the outstanding shares. The validity of the proceedings by which the new shares were authorized is not challenged. They appear to conform with the provisions of section 36, Stock Corporation Law (Cons. Laws, ch. 59). No impropriety is suggested. The only question relates to the interpretation of the statute in respect to rights of non-consenting holders of outstanding shares. I do not see how we can affirm this order without deciding that the Legislature intended to protect one class of stockholders whose interests might be slightly injured and at the same time to withhold relief from another whose interests might be annihilated. Unless the language of the statute is so clear and positive as to leave no room for judicial interpretation, such a purpose, unjust as it seems to me, ought not to be imputed to the law-making body. The statute does not seem so clear as to require us to draw the distinction which has been made by the courts below and approved by a majority of us.

Section 37, subdivision 3-b, of the Stock Corporation Law relates to the manner of subscription and authentication of the certificate filed pursuant to section 36. It provides, if such certificate alters the preferences of outstanding shares of any class or authorizes shares having preferences which are in any respect superior to those of outstanding shares of any class,” that certain officers of the corporation shall make affidavit that they have been authorized to execute and file the certificate by the votes of two-thirds of the outstanding shares of each such class ” entitled to vote thereon. Section 38, subdivision 12, provides that “ if the certificate alters the preferential rights of any outstanding shares,” any holder of such shares not voting in favor of such alteration may within a prescribed time object and demand payment for his shares and an appraisal of their value. One section uses the word preferences ” and the other “ preferential rights.” The use of these different words in the same statute seems to supply strong evidence of legislative intent to convey different thoughts and to deal with separate matters. A distinction seems fairly to be drawn between preferences ” and preferential rights.” One is the thing itself, the other is the right attaching to that thing. The distinction is similar in principle to that existing between property and title to it, between an office and its emoluments, between any thing and some other thing incidental to it. A preferential right, as used in section 38, subdivision 12, is such a right as attaches to any preference. Section 37, subdivision 3-b, deals with two distinct kinds of preferences, but not with any preferential right. One kind of preference exists in a particular class of stock without reference to any other class. The other kind consists in the relative positions of different classes in the capital structure of the corporation. Preferential rights attach to each. The former possesses a right, among others, to receive a prescribed dividend on a certain class of shares. The latter possesses a right to a particular position or location subject only to such classes as the certificate defines. These preferences and the rights incident to them may be changed by the filing of a new certificate as provided by section 36. When the change is made, the corporate officers must signify the nature of the change as provided by section 37, subdivision 3-b, whether the preference of a particular class has been changed, as for example, by an increase or reduction in the number of its shares or by establishment of the right to a different dividend rate, or whether the preference of different classes has been changed by a readjustment of their positions. Even common stock possesses a preference as that word is used in the statute. Section 37, subdivision 3-b, refers to the authorization of shares having preferences superior to those of outstanding shares of any class. In many instances this preference can apply to the authorization of only one class of preferred stock. In such a case, that one class can have preferences superior only to those of one other class. Therefore, within the meaning of the statute, common stock must be deemed to possess some kind of a preference. Otherwise the preferences of new shares of only one class of preferred stock could not be superior to other preferences. The certificate of December 26, 1926, recognizes such a thing as a preference in common stock. It refers- to the ‘‘ preferences ” of the seven per cent cumulative preferred stock, series B, and the common stock and makes them, in future, subject to the preferences of the authorized new stock. The preference of common stock consists in such an inferiority as is limited only to those classes of preferred stock described in the certificate. Except as so limited, it is supreme. Unless the certificate places other classes of stock ahead of it, it has all and every preference. I think section 37, subdivision 3-b, refers to two types of preference and that section 38, subdivision 12, gives its support to the rights attaching to each. When sections 36, 37 and 38 are read together their purpose is reasonably clear to me. U]

The result is made more nearly plain when the legislative and judicial history of the rights of non-consenting minority stockholders is traced. Prior to the enactment of chapter 354, Laws of 1901, preferred stock could not be authorized without the unanimous consent of outstanding stock (section 47, Stock Corporation Law, as added by chapter 688, Laws of 1892; Kent v. Quicksilver Mining Co., 78 N. Y. 159, 179, 180; Campbell v. American Zylonite Co., 122 N. Y. 455, 459, 460; Stokes v. Continental Trust Co., 186 N. Y. 285, 298.) Chapter 354, Laws 1901, amended section 47, Stock Corporation Law, as added by chapter 688, Laws 1892, and conferred authority to issue such stock when two-thirds consent. It was sustained as a valid exercise of the power reserved to the Legislature to amend corporate charters. (Hinckley v. Schwarzschild & Sulzberger Co., 107 App. Div. 470.) No protection, however, seems to have been accorded to the non-consenting minority until the passage of chapter 787, Laws 1923, which enacted subdivision 11 (now subdivision 12) of section 38, Stock Corporation Law. This subdivision, as stated, gives to holders of non-consenting outstanding shares the right to compel appraisal and purchase by the corporation. The legislation of 1923 was passed apparently for the protection of the holders of those stocks whose preferences are changed in either of the two ways mentioned in section 37, subdivision 3-b. The recent amendment has gone so far as to indicate, I think, a legislative policy to the effect that a holder of stock, if rights relating to it are changed without his vote, shall no longer be limited to the choice of subscribing to new stock or of disposing of his holdings for whatever they may bring in the market.

Respondent admits, as I understand its argument, that the holder of stock possessing the first kind of preference described in section 37, subdivision 3-b, may compel appraisal of his shares, but refuses to recognize the second type as one possessing preferential rights within the meaning of section 38, subdivision 12. Surely, if the position of a class of stock in the capital structure subject only to certain prescribed classes of stock, constitutes a preference, then the conclusion must follow that, when the form of that structure is disturbed and an old class of stock is made subject to new classes, preferential rights of the old class are altered. No preferred stock can be issued except upon consent of two-thirds of the common. Upon the vote of two-thirds of such stock a certificate may be filed and then are created new shares having preferences which are superior to the preferences of the common stock. The statute compels the officers of the corporation when filing the certificate which effects such a change to make affidavit that they have been authorized to execute and file the certificate by the votes of two-thirds of the common stock. By this procedure, the value of the common stock may be reduced to zero. The same result may follow when the capital structure consisting, for example, of common stock and one class of preferred stock is changed by superimposing a new preferred stock possessing rights superior both to the old preferred and the common. Respondent says, in effect, that the Legislature allows the value of these classes of old stocks to be totally destroyed without conferring upon their holders the rights to compel appraisal and purchase. Yet it concedes, as I understand its argument, that, if the rights of • a particular class of stock are changed in some way other than by superadding a new class, the holder is protected. The statute, it must be confessed, is somewhat obscurely worded. The use of the words preferences ” and “ preferential rights might, perhaps, be taken to exclude common stock, because, as usually considered, common stock might not be said to possess any preference. Ordinarily the word “ preference ” indicates a comparison and a superiority or inferiority. When sections 36, 37 and 38 are read together, the inference may be drawn that tho word preference was used to indicate a status rather than a comparison. Otherwise we might be driven to the conclusion that only preferred stocks were intended to be included within the benefit of the statute. Protection of preferred stocks and destruction of common seem to be contrary to the scheme of legislative policy. No substantial reason why the Legislature should seek to discriminate is suggested. ■ The same idea of fair dealing ought to, and I think that the Legislature intended that it should apply to both. I cannot believe that any intention existed to confer a remedy upon one class and to deny it to the other. The language of the statute may support the conclusion that all classes were intended to be treated alike.

Respondent argues that the language of section 38, subdivision 12, must, in any event, limit the right of appraisal to a case where the certificate itself alters the preferences of outstanding shares and that such a result is not effected when the certificate merely authorizes new shares with superior preferences. It stresses the distinction between, alter and authorize and urges that the outstanding shares are not affected by the authorization but only by the issue of the new ones. Its argument may be reduced to the proposition that an authorization of new shares with superior preferences is something different in principle from an alteration of preferences of outstanding shares. The language of section 38, subdivision 12, as I read it, supports the opposite theory. The change in the preference of outstanding shares occurs when the certificate authorizing new shares with superior preferences is filed. A right theretofore static becomes subject to change and, therefore, the right is altered. It is altered by the certificate itself, because, by the terms of section 36, the filing of the certificate constitutes the power to change the different classes of stock in the corporate structure and their preferential rights. A different interpretation would render the remedy created by section 38 entirely useless. That remedy must be invoked within twenty days after the meeting at which such alteration was authorized.” The vote at the meeting constitutes the authority and the fifing of the certificate constitutes the alteration. In the event that the new shares were not issued before the expiration of the twenty days after the date of the meeting at which they were authorized, a non-consenting shareholder would be without the remedy provided by the statute. Section 37, subdivision 3-b, uses the words “ alters ” and “ authorizes.” The same event is doubtless in the legislative mind when section 38, subdivision 12, uses the words alteration ” and “ authorized.” The Stock Corporation Law read as a whole ought to be interpreted, I think, as conferring upon a non-consenting shareholder the right to demand an appraisal within twenty days after the preferential rights attaching to his shares have been changed in either of the two ways described in section 37, subdivision 3-b.

Section 38, subdivision 12, says that “ any holder of such shares not voting in favor of such alteration ” shall have that right. The statute does not restrict the holder to one who had the right to vote and who waived his right. It says that any holder not voting in favor of such alteration may demand payment and have his shares appraised. I can see no reason to limit the class of holders. The Legislature has included all who did not vote in favor. A narrow construction might injure many an innocent holder.

Accordingly, I dissent and vote for -reversal.


text:
    Edmund P. Sullivan, Respondent, v. Albert Freeman, Appellant.

      False representations — fraud — rescission — action, to recover subscription alleged to have been induced by false representations — defense of ratification.

      Sullivan v. Freeman, 220 App. Div. 724, affirmed.
    (Argued January 17, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 1, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover the amount of a subscription to a syndicate alleged to have been induced by false and fraudulent representations and to have been rescinded. The defense was that the subscribers, with full knowledge of the facts, had ratified the subscription.

      John M.' Coleman and William J. Dawley for appellant.

      John J. Cunneen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Maria Maltese, as Administratrix of the Estate of Nicholas Maltese, Deceased, Appellant, v. Overseas Shipping Company, Inc., Respondent.

      Negligence — master and servant — release— action for death of employee — defense that employee had executed release on settlement of claim.

      Maltese v. Overseas Shipping Co., Inc., 217 App. Div. 754, affirmed.
    (Argued January 17, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1926, affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action to recover for the death of plaintiff’s intestate, alleged to have been occasioned through the negligence of defendant, his employer. The defense was that intestate in his lifetime had executed a release in settlement of his claim against defendant.

      Ralph Stout for appellant.

      Everett W. Bovard and Norman G. Hewitt for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Helen Kayser, as Administratrix of the Estate of Carl Kayser, Deceased, Respondent, v. 150 East 52nd Street, Inc., et al., Appellants, Impleaded with Others.

      Negligence — building — elevators — death of employee on building from falling down hoistway.

      Kayser v. ISO East Blind St., Inc., 220 App. Div. 749, affirmed.
    (Argued January 17, 1928;
    decided February 14, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 14, 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 defendants. Intestate, an employee of a plumbing contractor, while at work in a building in the course of construction fell into an unguarded hoistway and was killed.

      Fred H. Rees, Walter G. Evans, William G. Walsh and Alfred W. Andrews for 150 East 52nd Street, Inc., appellant.

      Everett W. Bovard and Norman G. Hewitt for George Colon & Co., appellant.

      Jerome Steiner and Anna M. Kross for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Emil Wittman and Joseph Kleinmayer, Appellants.

      Extortion (attempted) —judgments of conviction affirmed.

      People v. Wittman, 221 App. Div. 879, affirmed.
    (Argued January 17, 1928;
    decided February 14, 1928.)
    Appeal, by permission, from judgments of the Appellate Division of the Supreme Court in the second judicial department, entered October 28, 1927, which affirmed judgments of the Nassau County Court rendered upon a verdict convicting the defendants of the crime of attempted extortion.

      Edgar F. Hazelton for appellants.

      Elvin N. Edwards, District Attorney (Charles I. Wood of counsel), for respondent.
   Judgments affirmed; no opinion.

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


text:
    Jeannette T. Aldrich, Appellant, v. Guaranty Trust Company of New York, as Temporary Administrator of the Estate of Sherwood Aldrich, Deceased, Respondent.

      Appeal — order of Appellate Division reversing order granting motion for sequestration of property arid appointment of receiver — appeal, without permission, to Court of Appeals, dismissed.

      Aldrich v. Aldrich, 220 App. Div. 555, appeal dismissed.
    (Argued January 16, 1928;
    decided February 14, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 20, 1927, which reversed an order of Special Term granting a motion, by plaintiff, for sequestration of the property of defendant’s intestate, and appointing a receiver, and denied said motion.

      Edward E. Hoenig and William M. Sullivan for appellant.

      Henry A. Uterhart and Alfred M. Schaffer for respondent.
   Appeal dismissed, without costs; no opinion.

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


text:
    Mary Vinci, an Infant, by Anthony Vinci, Her Guardian ad Litem, Respondent, v. Louis Bremer, Appellant, Impleaded with Another.

      Negligence — piece of iron protruding from sidewalk near entrance to building — liability of owner for injury to child of tenant who tripped on iron and fell.

      Vinci v. Bremer, 220 App. Div. 760, affirmed.
    (Submitted January 16, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 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. The parents of plaintiff, a child twelve years of age, were tenants of the defendants. Plaintiff had been to a neighboring store for a bottle of milk. Upon returning, as she was about to enter the vestibule, her foot struck a piece of iron protruding from the sidewalk near the steps causing her to fall and receive the injuries complained of.

      George F. Hickey, Harold R. Oakes and William Butler for appellant.

      Charles A. Winter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George H. Clarkson, Appellant, v. Burns L. Smith, Respondent.

      Negligence — motor vehicles — passenger injured through chauffeur’s steering backing automobile against bank in order to stop, causing ■ car to overturn.

      Clarkson v. Smith, 220 App. Div. 808, reversed.
    (Argued January 16, 1928;
    decided February 14, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered September 26, 1927, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been occasioned through the negligence of defendant. Plaintiff was injured while riding as a passenger in defendant’s automobile. While going up grade the engine stalled and the car started to back down and the chauffeur threw the rear end of the car into the bank at the side of the road in order to stop, causing the car to turn over.

      George R. Fearon for appellant,

      H. D, Bailey for respondent,
   Order of the Appellate Division reversed and judgment of the Trial Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the question of defendant’s negligence was one of fact for the jury.

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


text:
    Adelbert E. Clark, Respondent, v. William P. Ash, Appellant.

      Real property — debtor and creditor — fraudulent conveyance — action to set aside conveyance of interest in real property as in fraud of creditors.

      Clark v. Ash, 220 App. Div. 746, affirmed.
    (Submitted January 13, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 16, 1927, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee in an action brought under section 268 of the Real Property Law to set aside as in fraud of creditors a transfer of an interest in real property made by a deceased insolvent debtor.

      Ernest F. Kruse for appellant.

      John L. Heider for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Joseph Urdang, Respondent, v. Nathan E. Posner, Appellant.

      Sale —false representations — action to recover difference between price paid and value of article sold.

      Urdang v. Posner, 220 App. Div. 609, affirmed.
    (Argued January 13, 1928;
    decided February 14, 1928.)
    Appeal from a judgment, entered July 8, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and reinstated said verdict in an action to recover the purchase price of a violin on the ground that the purchase was induced by false and fraudulent representations. On the trial plaintiff was permitted to amend his complaint so as to demand as damages the difference between the contract price and the value of the violin on the date of sale.

      Jacob M. Zinaman for appellant.

      Emil Weitsner, Bernard Braun and Jacob E. Kronick for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lencrif Realty Corporation, Appellant, v. Thorvald Cappelen, Respondent.

      Vendor and purchaser — real property — contract — specific performance — encroachments — action to compel specific performance of contract to purchase real property — defense that building encroached on highway.

      Lencrif Realty Corp. v. Cappelen, 220 App. Div. 828, affirmed.
    (Argued January 13, 1928;
    decided February 14, 1928.)
    Appeal, by‘permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 27, 1927, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to compel specific performance of a contract to purchase real property. The defense was that the building encroached upon the highway and that plaintiff was unable to convey to the defendant a title free from incumbrances as required by the contract.

      James Marshall for appellant.

      James F. Collins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank D. Baldwin, Appellant.

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

    (Argued January 12, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Supreme Court, rendered December 18, 1926, at a Trial Term for the county of Seneca, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Daniel Moran and Edward P. Murphy for appellant.

      J. Willard Huff, District Attorney (George F. Bodine of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Adelaide M. Cantin, Respondent, v. Chester D. Gardner et al., Appellants.

      Negligence — motor vehicles — passenger in automobile injured as result of collision with another.

      Cantin v. Gardner, 221 App. Div. 816, affirmed.
    (Argued January 12, 1928;
    decided February 14, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 5, 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 defendants. Plaintiff was a passenger in an automobile owned by defendant Bills and was injured as the result of a collision with another automobile owned by defendant Gardner.

      P. C. Dugan for Chester D. Gardner, appellant.

      John J. Scully for Clarence Bills, appellant.

      William H. Murray for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Crane, Lehman, Kellogg and O’Brien, JJ.; Cardozo, Ch. J., and Andrews, J., dissent as to defendant Gardner.


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

      Negligence —• motor vehicles — boy riding with another on bicycle killed by being thrown under passing motor truck.

      Pennachio v. Jersey Ice Cream Co., Inc., 217 App. Div. 710, affirmed.
    (Argued January 12, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 25,1926, modifying and affirming as modified a judgment in favor of defendant, entered upon a verdict directed by the court in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, a boy about twelve years of age, was riding along a State road sitting on the frame of a bicycle propelled by another boy. Defendant’s truck coming from their rear had partly passed the boys on the bicycle when the boy operating it lost control so that it toppled over throwing intestate under the rear wheel of the truck.

      Adelbert F. Jenks and Ernest P. Lyons for appellant.

      George B. Smith 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:
    John F. MacEnulty, Appellant, v. Carnegie Steel Company, Respondent.

      Contract — sale — action by purchaser to recover damages alleged to have been caused by delay in delivery.

      MacEnulty v. Carnegie Steel Co., 220 App. Div. 826, affirmed.
    (Argued January 11, 1928;
    decided February 14, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 27,1927, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover damages alleged to have been caused plaintiff’s assignor by delay in the delivery of steel plates to be used in the manufacture of freight cars under contracts made by said assignor with defendant in October and November, 1916.

      Albert Stickney and Hersey Egginton for appellant.

      Nathan L. Miller, David G. George, Kenneth B. Halstead and William Averell Brown for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Real Property Required for the Widening of Fourth Avenue in the Borough of Manhattan. Pablex Holding Company, Appellant.

      Municipal corporations — New York city — street widening proceedsings — damages — erroneous measure of damages in award in street widening proceeding.

      Matter of City of New York (Fourth Ave.), 221 App. Div. 458, affirmed.
    (Argued January 9, 1928;
    decided February 14, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 25, 1927, which reversed an order of Special Term awarding damages and assessing benefits in a street widening proceeding and remitted the proceeding to the Special Term for a rehearing on the ground that the award had been made on an erroneous theory. Appellant owned property one block square with frontage on Fourth avenue. In this proceeding a strip 20 feet in width was taken for the purpose of widening said avenue. In fixing damages the trial court took as a basis lots 100 feet deep on Fourth avenue, fixed a value for them and then allowed as damages twenty-five per cent of such value. This the Appellate Division held to be erroneous.

      Martin Conboy and David Asch for appellant.

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

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


text:
    Samuel Rosenblum, Inc., Respondent, v. Merchants Refrigerating Company, Appellant.

      Bailment — warehousemen — negligence — damage to stored merchandise 'from frost.

      Rosenblum, Inc., v. Merchants Refrigerating Co., 220 App. Div. 834, affirmed.
    (Argued January 18, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 2, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for damage to onions, stored with defendant under a contract of bailment, alleged to have been caused by defendants negligently permitting them to freeze.

      Henry C. Burnstine and Daniel E. Hanlon for appellant.

      Bernard Gordon for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Tice Towing Line, Respondent, v. Western Assurance Company, Appellant.

      Insurance — actions to recover on policies of marine liability insurance.

      Tice Towing Line v. Western Assur. Co., 221 App. Div. 855, affirmed.
    (Argued January 19, 1928;
    decided February 14, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 27, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon policies of marine liability insurance covering two steam tugs owned by plaintiff. The complaint alleged that in an action in the United States Admiralty Court plaintiff had been held liable for loss arising from the sinking of “a barge through its negligent handling by the insured tugs.

      Harrington Putnam for appellant.

      George V. A. McCloskey and William F. Purdy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Finer et al., Copartners Doing Business as Finer & Bachrach, Appellants, v. Charles T. Bingham et al., Copartners, Doing Business as Bingham & Co., Respondents.

      Contract ■ — - sale — rescission — action to recover for breach of contract of sale — defense of rescission.

      Finer v. Bingham, 220 App. Div. 665, affirmed.
    (Argued January 19, 1928;
    decided February 14, 1928.)
    Appeal from a judgment, entered July 5, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was buyers against sellers to recover for an alleged breach of contract of sale. The defense was rescission.

      Isidor Enselman and Benjamin Koenigsberg for appellants.

      Ernest A. Bigelow and Harold D. Beatty for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Elmer A. Jones, Appellant.

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

      People v. Jones, 222 App. Div. 721, affirmed.
    (Argued January 19, 1928;
    decided February 14, 1928.)
    •Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1927, which affirmed a judgment of the Chautauqua County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the first degree.

      Frank H. Mott and Harry M. Young for appellant.

      Glenn W. Woodin, District Attorney {John S. Leonard of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Marie Williams, Defendant, and Henry Karmel, Respondent.

      Bail — order of Appellate Division reversing judgment of conviction and directing discharge of d,efendant equivalent to direction for exoneration of hail.

      People v. Williams, 221 App. Div. 776, affirmed.
    (Argued January 20, 1928;
    decided February 14, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 24, 1927, which reversed an order of the Orange County Court denying a motion to vacate an order forfeiting an undertaking of bail and granted said motion The Appellate Division had reversed a judgment of conviction and directed that defendant be discharged from custody. On appeal by the People to the Court of Appeals the judgment of the Appellate Division had been reversed and the judgment of conviction affirmed (243 N. Y. 162). The Appellate Division herein held that its order directing discharge of defendant was equivalent to a direction that the bail be exonerated as required by section 545 of the Code of Criminal Procedure.

      Elmer H. Lemon, District Attotney, for appellant.

      Henry Hirschberg for respondent.
   Order affirmed; no opinion.

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


text:
    Antoni Kosmowski, Respondent, v. Mary G. Labruzzo, Appellant.

      Vendor and purchaser — real property — vendor unable to give clear title — action to establish lien on real property for down payment under contract of sale and expenses.

      Kosmowski v. Labruzzo, 220 App. Div. 773, affirmed.
    (Argued January 17, 1928;
    decided February 14, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 6, 1927, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to establish a lien upon real property for the amount paid by plaintiff under a contract to purchase said property together with expense incurred in connection therewith on the ground that defendant was unable to convey an unincumbered title as required by the contract.

      Peter H. Ruvolo and Herbert N. Warbasse for appellant.

      Abraham S. Cohen and Samuel Widder for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anna De Gaetano, as Administratrix of the Estate of James De Gaetano, Deceased, Appellant, v. Merritt and Chapman Derrick and Wrecking Company, Respondent.

      Negligence — master and servant — action to recover for death of diver from asphyxiation while engaged in his work — insufficient evidence of negligence of employer.

      De Gaetano v. Merritt & Chapman Derrick & Wrecking Co., 219 App. Div. 242, affirmed.
    (Argued January 17, 1928;
    decided February 14, 1928.)
    Appeal from a judgment, entered March 9, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of' defendant, his employer. Intestate, a diver, was asphyxiated while engaged in his employment of laying a cable at the bottom of the Harlem river. No witness saw the accident; his equipment was in perfect condition; he was found after the accident with his air hose and life line intact but caught between the cable and timbers of the crib through which it was to be hauled.

      Harold R. Medina and William F. McNulty for appellant.

      William J. Martin, Patrick J. Dobson and Frederick Mellor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frank X. Schwab, Respondent, v. Ross Graves et al., Appellants.

      Appeal — notice of appeal served more than sixty days after entry of judgment and service of copy thereof — motion to dismiss granted.

      Schwab v. Graves, 221 App. Div. 357, appeal dismissed.
    (Submitted February 13, 1928;
    decided February 21, 1928.)
    Motion to dismiss an appeal from a judgment entered July 12, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing in part a judgment entered upon a decision of the court on trial at an Equity Term and adjudging that a contract entered into between the city of Buffalo and the town of Cheektowaga was null and void.
    The motion was made upon the ground that the appeal was not taken within the time required by statute.

      George P. Keating and Fred C. Maloney for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Lavinia Lally, Respondent, v. Emilie T. Cronen, Individually and as Executrix of Catherine M. Lally, Deceased, Appellant, Impleaded with Others.
    (Submitted February 13, 1928;
    decided February 21, 1928.)
   Motion for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 58.)


text:
    Elfrida Mellish, Appellant, v. Atchison, Topeka and Santa Fe Railway Company, Respondent.
    (Submitted February 13, 1928;
    decided February 21, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 540.)


text:
    Randolph M. Valz et al., Appellants, v. Sheepshead Bay Bungalow Corporation et al., Respondents.

      Appeal — unanimous affirmance — constitutional question — motion to dismiss appeal denied.

    Reported below, 221 App. Div. 280.
    (Argued February 13, 1928;
    decided February 21, 1928.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 13, 1927, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.
    The motion was made upon the ground that permission to appeal had not been granted. Appellant claimed that a constitutional question was involved.

      Bernard Sobol, Hugo Hirsh and Morgan J. O’Brien, Jr., for motion.

      Louis Marshall and Robert E. L. Lewis opposed.
   Motion denied, without costs, with leave to renew in connection with the argument of appeal.


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 February 13, 1928;
    decided February 21, 1928.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned same will be amended by inserting the words “ on the ground of inequality ” after the words “ to quash the writ.” (See 246 N. Y. 35.)


text:
    The People of the State of New York, Respondent, v. Alazamon Ira Lucas, Appellant.

      Appeal — intermediate order in criminal proceeding ■ — • motion to dismiss appeal granted.

      People v. Lucas, 222 App. Div. 790, appeal dismissed.
    (Argued February 13, 1928;
    decided February 21, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1927, which reversed an order of the court at a Trial Term dismissing certain indictments against the defendant.
    The motion was made upon the ground that the order appealed from was an intermediate order and was not appealable to the Court of Appeals.

      William F. Love, District Attorney (William L. Clay of counsel), for motion.

      Leo J. Bice opposed.
   Motion granted and appeal dismissed.


text:
    In the Matter of the Claim of Frank Raymond, Respondent, against The Estate of Andrew Davis, Deceased. William J. Doty, as Administrator, Appellant.

      Appeal — motion to dismiss denied.

    Reported below, 220 App. Div. 480.
    (Submitted February 13, 1928;
    decided February 21, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 3, 1927, which modified and affirmed as modified a decree of the Chautauqua County Surrogate’s Court allowing a claim against the estate of Andrew Davis, deceased.
    The motion was made upon the ground that the required undertaking had not been filed.

      Nelson J. Palmer for motion.

      John Griffin opposed.
   Motion denied, without costs.


text:
    In the Matter of the Application of Samuel Horowitz et al., Copartners under the Firm Name of Sterling Cotton Mills, Respondents. Benjamin Kaplain et al., Copartners under the Firm Name of Kay Ar Eff Cloak Co., Appellants.

      Appeal — motion to dismiss denied.

    Reported below, 221 App. Div. 567.
    (Argued February 13, 1928;
    decided February 21, 1928.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 4, 1927, which reversed an order of Special Term vacating an award of arbitrators in favor of respondents and reinstated such award.
    The motion is made upon the ground that permission to appeal had not been granted.

      Benjamin Jaffe for motion.

      Jonah J. Goldstein opposed.
   Motion denied, with ten dollars costs.


text:
    Edward Schmidt, Individually and as Trustee under the Will of Theresa Steffan, Deceased, Appellant, v. Rose A. King, as Trustee under the Will of Theresa Steffan, Deceased, et al., Respondents.

      Will — construction — courts — complaint in action in Supreme Court for construction of will dismissed where full relief might be obtained in Surrogate’s Court.

      Schmidt v. King, 222 App. Div. 712, affirmed.
    (Argued February 13, 1928;
    decided February 24, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 2, 1927, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion for a dismissal of the complaint. The action was brought to obtain a construction of the will of Theresa Steffan, deceased. The complaint was dismissed on the ground that full relief could be obtained on the accounting in Surrogate’s Court.

      Stephen V. O’Gorman for appellant.

      William C. Carroll for Rose A. King as trustee, respondent.

      Charles A. Drefs, Jr., for Edward C. Stepping et al., respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Edward W. Browning, Appellant, v. Frances H. Browning, Respondent.

      Jurisdietion — husband and wife — separation — power of court at Special Term to grant additional allowance for counsel fees and disbursements.

      Browning v. Browning, 221 App. Div. 801, affirmed.
    (Argued February 13, 1928;
    decided February 24, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 1, 1927, which affirmed an order of Special Term granting a motion for an additional allowance for counsel fees and disbursements in an action for a separation. The following question was certified: “ Did the court at Special Term have power to make the order appealed from herein? ”

      Peter P. Smith, James J. McLoughlin and Kevie Frankel for appellant.
    [ Maurice Smith and Henry Epstein for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Probate of the Will of George S. Mallery, Deceased. George H. Mallery, Appellant; Lucie Mallery et al., Respondents.

      Will — probate — decedent’s estate — nuncupative military testament —■ subsequent born child entitled to proportion of estate she would have received if decedent had died intestate.

      Matter of Mallery, 220 App. Div. 794, affirmed.
    (Argued February 13, 1928;
    decided February 24, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 18, 1927, which unanimously affirmed a decree of the Tioga County Surrogate’s Court holding that certain oral statements made by decedent while in active military service were entitled to probate as a nuncupative military testament; that letters written by decedent from France were not entitled to probate, under section 141 of the Surrogate’s Court Act; that Margaret Mallery was decedent’s child; that Margaret Mallery was neither provided for nor mentioned in decedent’s nuncupative will; and that since the said will was made before she was born, she was entitled to the same estate of decedent as would have been distributed to her if he had died intestate.

      R. M. Page for appellant.

      Frederick E. Hawkes for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Anna Thomson et al., Respondents, against C. S. K. Commercial Paper Box Company et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant ■ — man hired to carry cardboard from sidewalk into building and place it where directed — not independent contractor.

      Matter of Thomson v. C. S. K. Com. Paper Box Co., 222 App. Div. 704, affirmed.
    (Submitted February 13, 1928;
    decided February 24, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 7, 1927, affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law. The paper box company had a quantity of cardboard delivered on the sidewalk and its president employed William Thomson and another to carry it into the building. Each man would take a bundle in his arms and carry it into the building and the president told them where to put it. While doing this work Thomson received injuries from which he died. He was not a regular employee. Defendants contended that he was an independent contractor.

      Jeremiah F. Connor and Benjamin C.' Loder 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 Claim of Mary M. Jenny against The Order of Minor Conventuals at Utica et al., Respondents. State Industrial Board, Respondent.

      Workmen's compensation — master and servant — painter employed to make repairs and do painting on property — except direction as to time within which certain work was to he done method and order of doing work left to him — holding that he was independent contractor proper.

      'Matter of Jenny v. Order of Minor Conventuals, 222 App. Div. 843, affirmed.
    (Argued February 13, 1928;
    decided February 24, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 6,1928, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim. Claimant’s husband, a painter, had been employed by the head of defendant order to make repairs and do painting on its property. He was killed while doing the work. He had been advised as to the principal work to be done and other repairs left to his judgment. Except a direction that certain repairs should be made prior to the time for opening school in September the method and order of doing the work was left to him. The Appellate Division held that he was an independent contractor.

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

      Stephen H. Keating for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    In the Matter of the Claim of Pauline Clow, Respondent, v. B. F. Keith’s Fordham Theatre et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — workman proceeding from warehouse to place of employment — crossing street unnecessarily not a deviation — waiver of consent to settlement.

      Matter of Clow v. Keith’s Fordham Theatre, 221 App. Div. 826, affirmed.
    (Argued February 13, 1928;
    decided February 24, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 7, 1927, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband, a property man in the defendant theatre, was struck by an automobile while on his way to the theatre from a warehouse where he had been inspecting furniture for use therein. Defendants contended that decedent had deviated from his route by crossing the street unnecessarily. Also that claimant had elected to sue a third party and settled without consent of the insurance carrier. The Industrial Board held that consent had been waived.

      William B. Davis and E. C. Sherwood 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:
    The People of the State of New York, Appellant, v. Elmer Kevlon, Respondent. The People of the State of New York, Appellant, v. George Arthur, Respondent. The People of the State of New York, Appellant, v. Dominick Di Maggio, Respondent.
    (Submitted February 13, 1928;
    decided February 24, 1928.)
   Motions for. reargument denied. (See 247 N. Y. 192, 518, 519.)


text:
    James A. Beha, Superintendent of Insurance of the State of New York, Appellant, v. William L. Weinstock, Respondent.
    (Submitted February 13, 1928;
    decided February 24, 1928.)
   Motion for reargument or to amend remittur denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 221.)


text:
    The People of the State of New York ex rel. William J. Schieffelin, Respondent, v. James J. Walker, as Mayor of the City of New York, et al., Constituting the Board of Estimate and Apportionment of the City of New York, Appellants. Charles W. Berry, as Comptroller of the City of New York, Respondent.
    (Submitted February 24, 1928;
    decided March 1, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 247 N. Y. 320.)


author: Per Curiam.

text:
    Frank E. Sturgis et al., as Trustees under the Will of Frank Work, Deceased, et al., Respondents, v. Frances Roche et al., Appellants, and Edmund M. Roche et al., Respondents, Impleaded with Another.

      Trusts — distribution of stock dividends between life tenants and remaindermen.

      Sturgis v. Roche, 217 App. Div. 573, modified.
    (Argued February 23, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1926, modifying and affirming as modified a judgment of Special Term directing as to the apportionment and distribution between life tenants and remaindermen of certain shares of stock representing an extraordinary stock dividend.

      Henry B. Closson and A. Loeb Salkin for appellants.

      Austin J. McMahon and William S. Jenney for respondents.
   Per Curiam.

We think the evidence sustains a finding that the value of the coal mines at the date of the declaration of the stock dividend is fairly measured by the price paid therefor by the Glen Alden Coal Company, and is not to be augmented by a consideration of the price at which the shares of the latter company, when issued, were sold in the stock market.

We find no sufficient evidence, however, that the price so paid represents the value of the lands in March, 1911, and February, 1914, the dates of the creation of the trusts. We fix the value of the coal properties in March, 1911, at $40,625,000, and their value in February, 1914, at $44,187,500. These values must be substituted for the value as fixed by the Appellate Division in determining the capital investment. The proportion of the dividend to be allotted to the remaindermen in order that such investment may be preserved unimpaired will be correspondingly diminished.

The judgment of the Appellate Division should be modified in accordance with this memorandum and,' as modified, affirmed without costs.

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

Judgment accordingly.


text:
    Howard M. Witbeck, in Behalf of Himself and Other Taxpayers of the City of Lockport, et al., Appellants, v. The Niagara, Lockport and Ontario Power Company et al., Respondents, and City of Lockport, Appellant.

      Taxpayer’s action — public service corporations — taxpayer’s action to restrain abrogation and compel performance of contract between power company and transmission company whereby former agreed to deliver to latter electric power at specified rate.

      Witbeck v. Niagara, Lockport & Ontario Power Co., 218 App. Div. 377, affirmed.
    (Argued February 15, 1928;
    decided March 27, 1928.)
    Appeal from a judgment, entered December 16, 1926, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department reversing a judgment in favor of plaintiffs entered upon a decision of the court on trial at an Equity Term and directing a dismissal of the complaint in a taxpayer’s action to have adjudged valid a contract between defendants Niagara, Lockport and Ontario Power Company and International Power and Transmission Company and to restrain the abrogation and compel performance of the said contract by the parties thereto. By the contract the Niagara Company was to sell and deliver to the International Company electric power at a stated price. Plaintiffs claimed that all residents of the city of Lockport using or desiring to use electric power had a beneficial interest in the continued performance of the contract.

      Frank C. Laughlin, Frank Irvine, Abner■ T, Hopkins, David Tice, George C. Lewis and' C. L. Nicholls for plaintiffs, appellants.

      George W. Riley, Corporation Counsel, for city of Lock-port, appellant.

      Louis L. Babcock and Warren Tubbs for Niagara, Lockport and Ontario Power Company., respondent.

      William L. Ransom, William W. Storrs, Henry R. Frost, Jacob H. Goetz and Jeremiah M. Sheehan for International Power and Transmission Company, et al., respondents.
   Judgment affirmed, with costs, on opinion of Crouch, J., below.

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


text:
    Robert A. Badger et al., Respondents, v. Scobell Chemical Company, Inc., et al., Appellants.

      Contract — fraud — rescission — corporations — agreement by defendant who with his wife owned entire stock of corporation to reduce holdings and issue new stock for capital to be supplied so as to establish parity of holdings between himself and wife and new stockholders —failure to issue new stock — contract rescinded for fraud.

      Badger v. Scobell Chemical Co., In,c., 222 App. Div. 712, affirmed.
    (Argued February 16, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 3, 1927, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at an Equity Term adjudging that a certain agreement between defendant George W. Scobell on behalf of defendant Scobell Chemical Company, Inc., and plaintiff Robert A. Badger be rescinded for fraud and that upon surrender by plaintiffs of the stock in the corporation paid for by them to the defendants that plaintiffs recover from defendants the amount paid with interest. Defendant Scobell and his wife owned all of the stock of the Scobell Chemical Company. Mr. Scobell, for the company, and Mr. Badger agreed that, if Mr. Badger would procure $15,000 cash capital and become associated in the management, Mr. Scobell would reduce the holdings of himself and wife from 308 to 200 shares and cancel some $4,400 standing to his credit on the books; that the company would issue stock at par for the $15,000 so to be procured, and that, for his services in procuring the capital, Mr. Badger should receive 50 additional shares, to be issued in January, 1924, thus establishing a parity of interests between Mr. Scobell and wife and Mr. Badger and his associates. Plaintiff Badger performed on his part but defendant failed to issue to him the stock as agreed and by an election of directors excluded plaintiffs from participation in the affairs of the company except as minority stockholders.

      George S. Van Schaick for appellants.

      Arthur L. Wilder and William W. Armstrong for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Samuel S. Zuckerman, Respondent, v. Dasco Import Co., Inc., Appellant.

      Contract — services — commissions — contract of employment terminable on thirty days’ notice — action for commissions on orders obtained after notice where goods were not delivered until after termination of employment.

      Zuckerman v. Dasco Import Co., Inc., 222 App. Div. 654, affirmed-
    (Argued February 16, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the. first judicial department, entered November 11, 1927, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover commissions for goods sold under a written contract of employment terminable by either party by giving thirty days’ notice. Defendant having given notice of termination plaintiff continued to solicit orders for- thirty days thereafter. The question was whether he was entitled to commissions on orders obtained by him and accepted by defendants where the goods were not shipped until after termination of his employment.

      Jerome Eisner for appellant.

      Milton S. Guiterman ?.nd Henry A. Spiegelman for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Isador Rosen, Respondent, v. Samuel Gray, Appellant.

      Negligence — motor vehicles — operation by defendant of automobile so as to force plaintiff’s car off road.'

    ' Rosen v. Gray, 221 App. Div. 829, affirmed.
    (Argued February 17, 1928;
    decided March 27, 1928.)
    . Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 5, 1927, modifying- and affirming as modified a judgment in favor of plaintiff entered upon a verdict, as reduced by stipulation, in an action to recover for personal injuries and for injury to property alleged to have been sustained through the negligence of defendant. The complaint alleged that while plaintiff was proceeding in his automobile along the State road between Old Falls and South Fallsburgh, in the county of Sullivan, by reason of the negligent operation by defendant of his automobile in turning without warning in front of plaintiff, he was forced off the road, over an embankment into a river. The answer was a general denial and alleged contributory negligence.

      John D. Lyons and Nellie Childs Smith for appellant.

      Lewis N. Stanton and Ellsworth Baker for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Harry C. Feroe et al., Respondents, v. B. H. Brooks Company et al., Respondents, and Pierre M. Brown, Appellant, Impleaded with Others.

      Lien — action to foreclose liens for materials furnished contractor — defense by owner that contractor had abandoned work and he had been obliged to complete at cost in excess of contract price.

      Feroe v. Brooks Co., 219 App. Div. 107, affirmed.
    (Argued February 17, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 24, 1927, modifying and affirming as modified a judgment entered upon the report of a referee in an action to foreclose a mechanic’s lien. The defendant Pierre M. Brown was the owner of the property against which the lien was filed; the defendant B. H. Brooks Company was the contractor to whom plaintiffs and other defendants had furnished materials for use in performance of the contract. Defendant Brown set up as a defense that the Brooks Company had abandoned its contract and that he had been obliged to have the work completed at a cost in excess of the contract price.

      James F. Riley for appellant.

      Harry E. Fritts, for plaintiffs-respon dents.

      William F. Kirnber for defendants-respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Young Women’s Christian Association of the City of New York, Appellant, v. The City of New York, Respondent.

      Tax — assessment — where assessment not void but erroneous for overvaluation certiorari sole remedy.

      Young Women’s Christian Assn. v. City of New York, 220 App. Div. 49, affirmed.
    (Argued February 17, 1928;
    decided March 27, 1928.)
    Appeal from a judgment, entered March 25, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to cancel as a cloud upon title taxes for the years 1920, 1921, 1922 and 1923 assessed upon real property of the plaintiff situated in the borough of Manhattan, city of New York. The Appellate Division held that the assessments were not illegal but erroneous from overvaluation and that certiorari was the only remedy.

      Richard Ely for appellant.

      George P. Nicholson, Corporation Counsel (William H. King and Tsaac Phillips of counsel), for respondent;
   Judgment affirmed, with costs; no opinion.

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


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    Fred H. Preiser, Appellant, v. Isaac E. Schine et al., Copartners under the Firm Name of City Lumber Company, Respondents, Impleaded with Others.

      Lien — invalidity of mechanics’ lien where notice fails to state labor performed or materials furnished at time of filing and agreed price or value thereof.

      Preiser v. Schine, 221 App. Div. 878, affirmed.
    (Submitted February 17, 1928;
    decided March 27, 1928.)
    Appeal from a judgment, entered November 21, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing judgment in favor of defendants-respondents. The action was to foreclose mechanics’ liens. The Appellate Division held that the plaintiff’s liens were invalid for the reason that the notices did not state the labor performed or material furnished at the time of filing such liens and the agreed price or value thereof.

      William Scott, M, for appellant.

      William L. Bumsey and Francis A. Griffen for respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Pennrich & Company, Incorporated, Appellant, v. Juniata Hosiery Mills, Incorporated, Respondent.

      Jurisdiction — process — service —jurisdiction> of foreign corporation not obtained by service of process on sales representative at office maintained in this State.

      Pennrich & Co., Inc., v. Juniata Hosiery Mills, Inc., 220 App. Div. 763, affirmed.
    (Submitted February 17, 1928;
    decided March 27, 1928.)
    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 vacate service of the summons in the above-entitled action upon the grounds that defendant was not doing business within this State nor was the person served its managing agent. Defendant is a foreign corporation having its office and min in Pennsylvania. Prior to August 16, 1926, Richard J. Nestler was its secretary. On that day he resigned and his successor was elected. Thereafter he came to New York city as sales representative of defendant. His duties were to solicit and receive orders for merchandise subject to acceptance or refusal by defendant at its office in Pennsylvania. He maintained an office on the door of which was the name of defendant. Its name was also listed in the telephone directory and in the directory of tenants of the building. As late as November, 1926, the defendant’s letter heads carried the notation “ New York Office, 366 Broadway.” The summons herein was served upon Nestler at this address in December, 1926. The following questions were certified: “ 1. Were the duties of and the authority conferred upon Richard J. Nestler such as to constitute him a managing agent of the defendant corporation within the meaning of subdivision 3 of section 229 of the Civil Practice Act? 2. Did the Supreme Court of the State of New York obtain jurisdiction of Juniata Hosiery Mills, Incorporated, by service of the summons herein upon said Richard J. Nestler within the State of New York? ”

      Maurice M. Cohn for appellant.

      Emerson F. Davis and Daniel S. Murphy for respondent.
   Order affirmed, with costs; second question certified answered in the negative; first question not answered; no opinion.

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


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    The People of the State of New York, Respondent, v. David Gordon, Appellant. The People of the State of New York, Respondent, v. Daily Worker Publishing Co., Inc., Appellant.

      Crimes — possessing indecent printed matter--judgments of conviction affirmed.

      People v. Gordon, 222 App. Div. 726, affirmed.

      People v. Daily Worker Pub. Co., Inc., 222 App. Div. 726, affirmed.
    (Argued February 20, 1928;
    decided March 27, 1928.)
    Appeal in the first above-entitled action, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 2, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of the crime of possessing indecent printed matter in violation of section 1141 of the Penal Law.
    Appeal in the second above-entitled action, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 8, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of the crime of possessing indecent printed matter in violation of section 1141 of the Penal Law.

      Charles Dickerman Williams and Joseph R. Brodsky for appellants.

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

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


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    Nora Heiman, Respondent, v. New York Life Insurance Company, Appellant.

      Insurance (life) — action to recover upon policy of life insurance — defense of suicide.

      Heiman v. New York Life Ins. Co., 222 App. Div. 654, affirmed.
    (Argued February 20, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a policy of life insurance. The insured was found dead upon the sidewalk in front of the apartment house where he resided. The question was whether death resulted from suicide or from accident.

      Ferdinand H. Pease and Louis H. Cooke for appellant.

      Mark E. Cymrot, T. J. Gillen and Harry Fieldsteel for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Walter Vogel, Respondent, v. Union Dime Savings Bank, Appellant.

      Negligence — buildings — injury to one entering building from glass falling from revolving door.

      Vogel v. Union Dime Savings Bank, 221 App. Div. 881, affirmed.
    (Submitted February 20, 1928;
    decided March 27, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 28, 1927, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for personal injuries alleged , to have been sustained by plaintiff through the negligence of defendant. Plaintiff, entering defendant’s building, pushed against the casing of a revolving door. The door turned but suddenly stopped and the glass in front of plaintiff fell out causing him injury.

      Alfred W. Andrews and Irving H. Schafer for appellant.

      Almet R. Latson, Jr., for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


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    Dowd & Clemens, Inc., Respondent, v. Emily K. Goodwin et al., Appellants.

      Commissions — brokers — action to recover real estate brokers' commissions on making lease — defense that another was procuring cause.

      Dowd & Clemens, Inc., v. Goodwin, 222 App. Div. 737, affirmed.
    (Argued February 20, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 27, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover real estate broker’s commissions on the making of a lease. The question was whether the lease referred to was the result of plaintiff’s efforts or whether another broker was the procuring cause.

      James E. Duross for appellants.

      Louis L. Archer and Joseph V. Mitchell for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Augusta Rukeyser, Respondent, v. Alabama Holding Corporation, Appellant.

      Hegligence — landlord and tenant — buildings — elevator — injury to tenant from dropping of elevator she was about to enter caused by interference with control lever by child.

      Rukeyser v. Alabama Holding Carp., 221 App. Div. 858, affirmed.
    (Argued February 20, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department,' entered November 3, 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, a tenant in defendant’s building, was about to enter one of its elevators when a child standing near the operator pulled the lever which controlled the movement of the car. It dropped about eighteen inches causing plaintiff to fall, from which she received the injuries complained of.

      Walter G. Evans, William G. Walsh and Grattan B. Shults for appellant.

      Mantón Marks for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Margaret Keane, as Administratrix of the Estate of John Keane, Deceased, Respondent, v. Ninth Avenue Railroad Company, Appellant, Impleaded with Another.

      Negligence — railroads — streets — pedestrian killed by street car while crossing tracks at street corner.

      Keane v. Ninth Ave. B. B. Co., 222 App. Div. 663, affirmed.
    (Argued February 20, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 25, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been caused through the negligence of defendant. Intestate while crossing Amsterdam avenue at Ninety-sixth street in the city of New York was struck by one of defendant-appellant’s south-bound cars and received injuries from which he died.

      William J. Curtin and Michel Kirtland for appellant.

      Milton Speiser and Joseph Speiser, for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Frank T. Wood, Appellant, v. Woodlawn Improvement Association Transportation Corporation, Respondent.

      Negligence — motor vehicles — streets — injury to plaintiff from being struck by motor bus while crossing street at corner — contributory negligence.

      Woodv. Woodlawn Imp; Assn. T. Corp., 215 App. Div. 628, affirmed.
    (Argued February 21, 1928;
    decided March 27, 1928.)
    Appeal from a judgment, entered June 2, 1926, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while crossing Broadway at its intersection with State street in the city of Albany was struck by one of defendant’s automobile buses and received the injuries complained of. The Appellate Division held that on the evidence plaintiff was guilty of contributory negligence as matter of law.

      Charles E. Brennan for appellant.

      Neile F. Towner and Robert F. Woody for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    George S. Abell, Respondent, v. The Cornwall Industrial Corporation, Appellant.

      Libel — defenses of justification, privilege and mitigation.

      Abell v. Cornwall Industrial Corp., 222 App. Div. 689, affirmed.
    (Argued February 21, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 12, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was for libel. The defenses were justification, privilege and mitigation. (See 241 N. Y. 327.)

      A. W. Bennet and Graham Witschief for appellant.

      Henry Hirschberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    In the Matter of Joseph F. Stillman et al., Respondents, against The Board of Standards and Appeals of the City of New York et al., Appellants.

      New York city — Zoning Law — power of Board of Standards and Appeals to vary requirements for benefit of single property owner.

      Matter of Stillman v. Board of Standards & Appeals, 222 App. Div. 19, affirmed.
    (Argued February 21, 1928;
    decided March 27, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 2, 1927, which reversed, on certiorari, a determination of the Board of Standards and Appeals of the city of New York granting the application of appellant Fortieth Street and Park ¡Avenue, Inc., for a variance of the building zone resolution in force' in the city of New York so as to permit it to erect and maintain a business building in a residence district. The Appellate Division held that the Board of Standards and Appeals was without power to vary a zoning requirement because it would benefit a single owner to remove a restriction.

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, J. Joseph Lilly and William T. Kennedy of counsel), for Board of Standards and Appeals, appellant.

      Charles L. Craig for Fortieth Street and Park Avenue, Inc., appellant.

      E. De T. Bechtel for Joseph F.' Stillman et ah, respondents. •

      Kenneth M. Spence for Austin G. Fox, respondent.

      M. G. Holstein for 104 East Fortieth Corporation, respondent.
   Order affirmed, with costs; no opinion.

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


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    Myrtle B. Lynch, Doing Business under the Firm Name of Myrtiles, Appellant, v. American Eagle Fire Insurance Company of New York, Respondent.

      Insurance — policy insuring merchandise against loss while in custody of any transportation company — bags stolen from taxicab in which insured was a passenger — not in custody of carrier within meaning of policy.

      Lynch v. Am. Eagle Fire Ins. Co., 220 App. Div. 196, affirmed.
    (Argued February 21, 1928;
    decided March 27, 1928.)
    Appeal from a judgment, entered April 15, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint. The action was to recover upon a policy of insurance “ on trunks and samples of merchandise ” in the charge or control of the assured or their traveling representatives “ while in the custody of any transportation company, or while in automobiles, or while in the custody of any common carrier in transit,” subject to the exception that it did not insure against loss by theft “ of property in the custody of the assured or their traveling representatives and/or on railroad cars, steamship, or other carriers or conveyances.” Plaintiff placed bags containing merchandise in a taxicab in which she was a passenger and on arrival at her destination alighted leaving the bags therein. On her return after five minutes she found the bags had been stolen.

      Wilbert J. Ryder for appellant.

      Louis Cohn for respondent.
   Judgment affirmed, with costs, on the ground that the lost bags were not in the custody of the carrier within the meaning of the policy.

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


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    The People of the State of New York ex rel. Edward Haase et al., Respondents, v. Henry M. Goldfogle et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Tax— New York city — partial exemption of new buildings planned for dwelling purposes.

      People ex rel. Haase v. Goldfogle, 222 App. Div. 834, affirmed.
    (Argued February 14, 1928;
    decided March 27, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 19, 1928, which affirmed, on certiorari, an order of Special Term reducing an assessment on real property of the relator for purpose of taxation for the year 1926, on the ground that the improvement, comprising a one-family dwelling, was partially exempt from local taxation under section 4-b of the Tax Law and an ordinance of the city of New York relating to exemption from local taxation of new buildings for dwelling purposes.

      George P. Nicholson, Corporation Counsel (William H. King and Harry S. Lucia of counsel), for appellants.

      Jackson A. Dykman and Walter C. Goodwin for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Claim of Jeannette Aierlo against Isidore Haft et al., Respondents. The State Industrial Board, Appellant.

      Workmen’s compensation — master and servant — woman employee assaulted by ■ strange man in hall outside employer’s premises while returning from wash room — claim dismissed on ground injury did not arise out of employment.

      Matter of Aierlo v. Haft, 222 App. Div. 708, affirmed.
    (Argued February 14, 1928;
    decided March 27, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4, 1928, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim. The employer was a dress manufacturer, occupying part of the third floor of the premises at 106 West Thirty-second street, New York city. The claimant was employed as a sample-maker. On the day in question she left her work to go to the ladies’ room, which necessitated her going outside of the employer’s premises and into a public hall. While in the hall she was assaulted by a strange man. For the injury received she was awarded compensation by the State Industrial Board. The Appellate Division dismissed the claim on the ground that the accident did not arise out of the employment.

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

      John 8. Breckinridge and William H. Hotchkiss for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


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    In the Matter of the Claim of Jack Goldin, Respondent, v. Goldin Decorating Company, Respondent, and Royal Indemnity Company, Appellant. The State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — vice-president and treasurer of corporation who is also employed as supervisor of its business injured in course of employment — compensation properly awarded.

      Matter of Goldin v. Goldin Decorating Co., 222 App. Div. 780, affirmed.
    (Argued February 14, 1928;
    decided March 27, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 15, 1927, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant and two others organized a corporation to engage in the business of painting and decorating. He was elected vice-president and treasurer. He was also employed by the corporation as “ inside man ” or “ supervisor ” at a stated salary. While engaged in loading a motor truck with painting supplies he received injuries for which the State Industrial Board awarded compensation. The insurance carrier contended that claimant was not an employee within the meaning of the Workmen’s Compensation Law.

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


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    The People of the State of New York, Respondent, v. Thomas Hyland, Appellant.

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

    (Argued February 23, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Court of General Sessions of the county of New York, rendered November 28, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Henry A. Lowenberg, Edwin M. Stanton and Abraham Eisenstat for appellant.

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

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


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    Morris Alperstein, Respondent, v. National Surety Company, Appellant.

      Principal and surety — indemnity bonds —■ motor vehicles — Highway Law — action to recover on bond given pursuant to provision of Highway Law as condition to engaging in business of carrying passengers for hire in cities of first class — defense that bond was canceled by repeal of statute.

      Alperstein v. National- Surety Co., 222 App. Div. 664, affirmed.
    (Argued February 23, 1928;
    decided March 27, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 23, 1927, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for summary judgment. The action was to recover upon an indemnity bond filed with the State Tax Commission pursuant to chapter 612 of the Laws of 1922 requiring such a bond from those engaged in the business of carrying or transporting passengers for hire in the city of New York and conditioned that upon default of the principal it would pay any judgment recovered against him for death or injury to property in the operation of a motor vehicle. Plaintiff was struck and injured by the motor vehicle mentioned in the bond and thereafter recovered judgment against the principal. Executions having been returned unsatisfied this action was brought against the surety on its bond. The defense was that chapter 612 of the Laws of 1922 was repealed by chapter 413 of the Laws of 1924, and that consequently the indemnity bond executed and filed pursuant to the former statute was canceled when the latter statute went into effect and that the defendant was thereafter relieved from any liability under said indemnity bond.

      Thomas L. Walsh for appellant.

      Benjamin Berinstein for respondent.
   Judgment affirmed, with costs; no opinion.

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