author:
      Peer Curiam.
     Crane, Kellogg, J.

text:
    The People of the State of New York ex rel. Glenn W. Woodin, as District Attorney of Chautauqua County, Appellant, v. Lee L. Ottaway, Individually and as County Judge of Chautauqua County, et al., Respondents, Impleaded with Others.
    Crimes • — ■ courts — jurisdiction — criminal court may impose sentence and suspend execution thereof — mandate suspending sentence upon condition of payment of fine not a revocation of sentence and imposition of new one — jurisdiction to stay execution of judgment did not expire with trial term — may be exercised until imprisonment has been commenced — jurisdiction not lost through appeal to Appellate Division and affirmance of judgment of conviction — application for order of mandamus commanding county judge to vacate order suspending sentence on condition of payment of fine properly denied.
    1. Section 2188 of the Penal Law gives authority to a court, not merely to suspend sentence, but to impose sentence and suspend the execution of the judgment.
    2. A mandate of a County Court suspending sentences previously imposed “ upon condition that each of these defendants pay a fine ” was not a revocation of the sentence previously imposed and the imposition of a new one. It was a suspension of the execution of the judgment upon compliance by the defendants with a condition which they might accept or reject.
    3. Jurisdiction to stay the execution did not expire with the term at which the prisoners were tried. The only limitation upon the time of its exercise is the statutory provision that “ imprisonment shall not be suspended or interrupted after such imprisonment shall have commenced.” (Penal Law, § 2188.)
    4. Nor was jurisdiction lost through an appeal to the Appellate Division and an affirmance by that court before the order of suspension was made. Section 546 of the Code of Criminal Procedure, authorizing appellate courts to make such directions as may be necessary in view of changed conditions to carry a judgment into effect, does not touch the situation. The judgment of affirmance was not an expression of opinion as to the propriety of staying or suspending the execution of the sentence. That power was vested in the court of original jurisdiction.
    5. An application, therefore, for a peremptory order of mandamus commanding a county judge to vacate an order made by him, after affirmance by the Appellate Division of a judgment convicting defendants of the crime of assault in the second degree, but before imprisonment had commenced, suspending the sentences of imprisonment on condition they pay a fine, was .properly denied.

      People ex rel. Woodin v. Ottaway, 222 App. Div. 711, affirmed.
    (Argued February 14, 1928;
    decided March 27, 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 an order of Special Term denying a motion for a peremptory order of mandamus to compel the Chautauqua county judge to vacate an order resentencing certain defendants.

      Glenn W. Woodin, District Attorney, for appellant.
    The order of the county judge reopening and modifying the judgment of conviction by substituting for State’s prison sentence of one year a fine of $300, at a subsequent term of the County Court and after affirmance of the judgment of conviction by the Appellate Division, was clearly without jurisdiction and null and void. (People v. Boehm, 176 App. Div. 401; 226 N. Y. 705; People ex rel.

      Paris v. Warden, 118 Misc. Rep. 44; People ex rel. Harris v. Warden, 201 App. Div. 573; Ex parle U. S., 242 U. S. 27; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; People ex rel. Hirschberg v. Seeger, 179 App. Div. 792; 223 N. Y. 659; People ex rel Turtona v. Prison Board, 35 State Dept. Rep. 381; People v. Canepi, 181 N. Y. 398; People v. Bradner, 107 N. Y. 1.)

      Frank H. Mott for respondent.
    The power to suspend sentence was inherent in trial courts at common law. (People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; People v. Goodrich, 149 N. Y. Supp. 406; People ex rel. Schindler v. Kaiser, 95 Misc. Rep. 681; People ex rel. Pasco v. Trombly, 173 App. Div. 497.) The trial court has power to suspend sentence before imprisonment is commenced. (People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288; Schieffelin v. Hylan, 236 N. Y. 254; Manning, Bowman & Co. v. Keenan, 73 N. Y. 45; People ex rel. Holton v. Hunt, 217 App. Div. 428; People ex rel. Paris v. Hunt, 201 App. Div. 573; 234 N. Y. 558.)
   Peer Curiam.

Penal Law, section 2188, gives authority to a court, not merely to suspend sentence, but to impose sentence and suspend the execution of the judgment.

In the view of a majority of this court, the mandate of the County Court was not a revocation of the sentence previously imposed and the imposition of a new one. It was a suspension of the execution of the judgment upon compliance by the defendants with a condition which they might accept or reject (Comm. v. Dowdecain’s Bail, 115 Mass. 133, 136; cf. Code Crim. Pro. § 483, subd. 2; § 11-a, subd. 4).

Jurisdiction to stay the execution did not expire with the term at which the prisoners were tried. Like the power to revoke the suspension, it was not confined to one term nor even to one judge, but was vested in the court (People v. Bork, 96 N. Y. 188, 198; Moett v. People, 85 N. Y. 373, 383; People v. Everhardt, 104 N. Y. 591; People v. Nesce, 201 N. Y. 111; People v. Brown, 153 App. Div. 234; People v. Graves, 31 Hun, 382; People ex rel. Gerhrmann v. Osborne, 79 N. J. Eq. 430, 439). The one limitation upon the time of its exercise is stated in the statute (Penal Law, § 2188): “ The imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced (cf. U. S. v. Murray, 275 U. S. 347, and Cook v. U. S., 275 U. S. 347).

The order suspending the execution of this judgment was made by the County Court before imprisonment had commenced. It was made by the same judge who had presided at the trial, so that there is no occasion to consider the questions of judicial comity or propriety that might conceivably arise if it had been made by another judge while the trial judge was present or competent to act. If the stay was indiscreet, the indiscretion may not be remedied by resort to a mandamus.

Jurisdiction was not' lost though the appeal to the Appellate Division and the affirmance by that court before the order for a stay was made. Section 546 of the Criminal Code does not touch the situation. All that it does is to confer power on appellate courts to make such directions as may be necessary in view of changed conditions to carry a judgment into effect, as, e. g., where the date fixed for the execution of a death sentence has expired pending an appeal. There was no thought to invest them with jurisdiction to determine whether sentence should be suspended or a defendant placed upon probation. This conclusion becomes the more obvious when we consider a few dates. Section 546 goes back in its present form to 1882. The power to suspend sentence did not have recognition in any statute till 1893 (L. 1893, ch. 279, amending Penal Code, § 12; People ex rel. Forsyth v. Court of Sessions, 141 N. Y. 288, 294). Not till 1918 was there a statute giving power to impose a sentence in the first instance, and thereafter stay the judgment (L. 1918, ch. 457; cf. L. 1913, ch. 125, amending Code Crim. Pro. § 517, and superseding People v. Flaherty, 126 App. Div. 65). Obviously section 546 was framed alio intuitu. The problem might wear another aspect if the discretion to suspend or stay were subject to review upon appeal. There is no contention that it is. A judgment of affirmance either by this court or by the Appellate Division is not an expression of opinion as to the propriety of staying or suspending the execution of the sentence. There is no jurisdiction in either court to express such an opinion with any authoritative force. The Appellate Division can indeed reduce the sentence, but never below the minimum penalty provided by law (Code Crim. Pro. § 543). The power to stay execution, like the power to revoke the stay, or to place a defendant on probation, is confided to the court of original jurisdiction, which may be controlled in the exercise of its discretion by information dehors the record. It is not shorn of the power by an intermediate appeal.

The order should be affirmed without costs.

Crane,

J. (dissenting). I am for reversal on two grounds. In the first place the county judge had no power to change his sentence after it once had been imposed. Having sentenced the defendants to State prison, he subsequently and after affirmance of the judgments of conviction by the Appellate Division sent for the defendants and changed his sentence from imprisonment to one of a fine of $300. He repeatedly stated that he would change or modify his sentence. This he attempted to do by suspending the execution of the judgment on condition that the defendants-pay a fine of $300. The defendants paid the fines and were released. This action of the county judge was illegal and unauthorized.

Some of my associates say that the imposition of the fine, although illegal, may be ignored; that the judge merely suspended the execution of the judgment; that even if he had no power to impose the fine, the matter may be overlooked or disregarded. Can it be so far disregarded that the defendants can sue and get back the money illegally paid? Or again, can the payment of the fine be so far disregarded that the judge under section 2188 of the Penal Law may revoke the suspension and execute the original judgment of imprisonment? These questions to my mind show that we cannot disregard the imposition of the fine as a wholly unjustified and illegal act. The judge in reality as well as in form changed the sentence from one of imprisonment to one of fine, and released the defendants. He had no power to impose such a condition, and he had no power to change his sentence from imprisonment to fine. His act must be considered as a whole. I have never heard of a court bargaining with the defendants regarding the sentence or judgment to be entered. The law does not recognize such methods. Restitution for wrong done often is taken into consideration by the courts in imposing sentence, but here there was no restitution for any wrong done. The court was simply executing the law in imposing a sentence provided by law, and there is no law for the suspension of sentence upon condition that a defendant pay money to the county.

I also agree with Judge Kellogg that section 2188 gives no power to the county judge to suspend sentence after affirmance by the Appellate Division. The last words of the section, reading: “ Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced,” must be read in connection with other provisions of the Code of Criminal Procedure and the Penal Law. After a sentence of imprisonment, it is the duty of the sheriff forthwith to deliver the defendant to the proper prison authorities for- incarceration. Before he does this, the judge may suspend the judgment. But if the sheriff in executing the judgment is stayed by a certificate of reasonable doubt, the stay or the certificate operating as a stay takes the place of the imprisonment. In other words, this proviso of section 2188 runs until the imprisonment in the ordinary course of procedure or until something else is substituted for the imprisonment. The certificate of reasonable doubt is such substitution. These defendants were out on a certificate of reasonable doubt pending the appeal to the Appellate Division. That court passed upon the judgment of conviction and affirmed it. I do not think it was the intention of the Legislature to give to the trial court thereafter the power to suspend the judgment which the Appellate Division affirmed. The fact that the Appellate Division has the power to modify the judgment imposed upon the defendants is a strong indication that the power of suspension given in section 2188 did not survive the action of the Appellate Division. In fact, the power ceased long before action by the Appellate Division. It ceased with the imprisonment of the defendants. If there had been no certificate of reasonable doubt they would have been imprisoned immediately. The certificate of reasonable doubt, while keeping them out of prison did not in my judgment keep alive the power to suspend the execution of the judgment.

This interpretation of section 2188 to my mind is quite reasonable. If the trial courts are to have the power of suspension after the appellate courts have passed upon the record, the matter should be called to the attention of the Legislature so that their intention in this matter may be more clearly expressed. I for one do not believe that the Legislature ever intended this power to exist beyond the day when, imprisonment should have.taken place in the ordinary course of procedure.

Kellogg, J.

(dissenting). The trial of an indictment, charging Lyle Cook, Irwin Cook and Herbert Cook with the crime of assault in the second degree, was conducted by the County Court of Chautauqua county at a term held, pursuant to appointment, in July, 1926. On July 23, 1926, a verdict, finding the three defendants guilty of the crime as charged, was returned. On the same day the County Court, declining to postpone the pronouncement of sentence, for the reason that the court was about to adjourn, sentenced the three defendants to imprisonment in State’s prison for a term of not less than one year and not more than two years. The July term of the County Court was then adjourned without day. Thereafter a certificate of reasonable doubt was granted by the county judge, and an appeal was taken to the Appellate Division. On November 2, 1926, the Appellate Division handed down a decision unanimously affirming the judgment of conviction. Meanwhile, the County Court had adjourned its October term, appointed to be held on October 4, 1926, to November 29, 1926. The County Court, sitting at the time and place fixed by the order of adjournment, upon motion of the counsel for the defendants, made the following disposition of the case: Very well, then, the sentence of this court as reframed at this time is that the sentence previously imposed of not less than one year and not more than two years is suspended upon condition that each of these defendants pays a fine which the court fixes at $300. That is the sentence as reframed.” An application was subsequently made to the Supreme Court by the district attorney of the county for a writ of mandamus directed to the county judge of Chautauqua county, commanding him to vacate the order thus made. The application was denied, and the order denying it was affirmed by the Appellate Division “ as a matter of law and not in the exercise of any discretion.” Thereafter the Appellate Division granted leave to appeal to this court.

It is providéd in section 546 of the Code of Criminal Procedure as follows: On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected, the corrected judgment must be carried into execution as the appellate court may direct.” The power of an appellate court upon the hearing of an appeal is defined in section 543 of the Code of Criminal Procedure. 1. It may reverse the judgment. 2. On reversal, it may order a new trial. 3. It may correct the judgment, when erroneous, to conform to the judgment of finding. 4. It may reduce the sentence imposed. 5. It may affirm. 6. If the affirmance is of a judgment of death, it must fix the week during which the original sentence * * * shall be executed.” We are concerned here only with that part of section 546 which provides that on a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct.” In the interpretation of that clause the powers of an appellate court to reverse, to grant a new trial, to correct or modify a judgment, are without interest, since the clause deals only with a simple affirmance of the original judgment. What is the significance of the provision that the execution of an original judgment shall be “ as the appellate court may direct ”? When will an appellate court in affirming an original judgment find need. to give directions as to its execution? Section 546, in prescribing the duties and powers of an appellate court, provides for directions to be given by it, upon affirmance, in one instance only, viz., the instance of an affirmance of a judgment of death. In that event, it must give directions as to the date of execution of the original sentence. No other instance where directions are required now occurs to us. Is it to be understood, then, that section 546 has application only in a case of an affirmance of a death sentence? If so, why did not the Legislature provide in simple language merely this, i. e., that when a death sentence is affirmed it must be executed as directed by the order of affirmance? It did not do so. It provided generally that on a judgment of affirmance ” (in any case whatsoever) the original judgment “ must ” be carried into execution as the appellate court may direct.” Clearly, it is the meaning of the clause that the judgment must ” be executed, as originally pronounced, unless in a proper case, a death case, the appellate court gives necessary directions, in which case execution must ” be had as directed. If that be the meaning of the clause, its enactment might well have been omitted, unless the effect intended was that an original judgment, after affirmance, should no longer be subject to the exercise of a power of suspension, and that its execution must absolutely follow. For, without the enactment, the original judgment, except for a suspension, authorized or unauthorized, would after affirmance in any event be executed. We think that the clause applies in this instance, and that, even though the power of suspension was retained by the County Court up to the moment of the affirmance of the judgment, it then ceased, and thereafter' the original sentence was required to be executed. Any other conclusion would bring our criminal procedure into disrepute. There might otherwise be presented to view the spectacle of a convict escaping imprisonment through the order of a trial judge, granted after a determination by the highest court in the State that he had justly been sentenced, and deserved the sentence of imprisonment which had been inflicted. That result would be intolerable and should not now be sanctioned by our decision.

For all these reasons the order should be reversed and a peremptory order of mandamus should be granted.

Cabdozo, Ch. J., Pound, Lehman and O’Brien, JJ., concur in per curiam opinion for affirmance; Crane and Kellogg, JJ., dissent in opinions; Andrews, J., dissents,

Order affirmed.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Alexander Lessin, an Infant, by Markus Lessin, His Guardian ad Litem, Appellant and Respondent, v. The Board of Education of the City of New York, Appellant, and the City of New York, Respondent. Markus Lessin, Respondent and Appellant, v. The Board of Education of the City of New York, Appellant, and the City of New York, Respondent.
    Negligence — streets — elevators —• New York city — Board of Education — boy eight years old not guilty of contributory negligence in running across elevator platform left flush with sidewalk — liability of city and Board of Education for injury received from fall into elevator shaft in front of school — sidewalk elevator within building line not a nuisance if properly constructed — sufficiency of evidence to sustain finding that employees of Board of Education should have anticipated that precautions taken to guard damaged elevator might prove insufficient — duties of control and care of school buildings imposed upon Board by statute are corporate duties — Board responsible for dereliction of its employees in discharge of such duties — notice to employees notice to Board — complaint properly dismissed as against city. ■
    1. It cannot be said that a boy eight years old was guilty of contributory negligence as a matter of law in running in play upon the platform of an elevator left nearly level with the street, where the opening of the shaft, though within the building line, was in the sidewalk, which was open and used by the public, and there was nothing to warn him plainly of danger.
    2. Though the danger was due to conditions which existed not upon the public street itself but upon abutting property, it was a danger to which those using the street were subjected. Both the city and the abutting owner knew that the public used the whole sidewalk and, in the absence of some special rule of exemption of liability, each may be held responsible for injuries caused by dereliction on its part in any duty it owed to a person so using the sidewalk.
    3. The provisions of section 148 of article 13 of chapter 23 of the Code of Ordinances of the city of New York apply only to obstructions and incumbrances in the city streets and are not intended to render unlawful, openings otherwise constructed in the sidewalk within the building line, if such openings are constructed in a reasonably safe manner, in accordance with plans approved by the city. Where, therefore, in an action to recover for injury to a boy caused by the giving way of one end of the platform of a sidewalk elevator when he stepped upon it, precipitating him down the shaft, there is nothing in the evidence which suggests that the original construction of the elevator and elevator shaft was not reasonably safe, plaintiff cannot recover on the theory of nuisance.
    4. Evidence that the custodian-engineer of a school, in front of which the accident happened, and the supervisor or superintendent of maintenance of machinery and apparatus of public schools were informed that while the elevator was being used for the delivery of coal the platform had become stuck a few inches above the sidewalk and could not be lowered; that directions were given to a contractor to repair the elevator; that the folding doors which ordinarily covered the shaft opening when the elevator was not in use were placed in an upright position and held erect by a bar across the top and that empty ash cans were ranged in front between the doors but that during the interval of at least three hours before plaintiff was injured no further attention was paid to the elevator and at the time of the accident the folding doors lay open, flat against the sidewalk, and there were no ash cans in front of the elevator which was then level with the sidewalk, sustains a finding that the employees of the Board of Education in the exercise of reasonable care should have anticipated that the precautions taken might prove insufficient.
    5. A contention that even assuming that its employees have been negligent the Board of Education, as an agency of the State, performing a governmental function, is not responsible for the negligence of its employees or agents, cannot be sustained. The duties of control and care of school buildings imposed upon the Board by section 1055 of the charter of the city of New York (L. 1901, ch. 466) and by subdivision 3 of section 868 of the Education Law (Cons. Laws, eh. 16) are corporate duties that may not be delegated and for dereliction in the discharge of such duties there is a corporate responsibility.
    6. Nor may a contention be sustained that notice of the existence of the danger given to the employees of the Board may not be regarded as notice to the Board. The Board intrusted, as it was bound to do, the care of the building to its employees and was derelict when it failed to take appropriate action upon the knowledge obtained by them.
    7. The record not showing that any employee or officer of the city intrusted with the care of the streets had actual notice that the elevator was defective or constituted a danger to the public and it not being clear, under all the circumstances, that in the exercise of reasonable care by any of them such a danger should have been diseoveréd, and at the trial liability against the city being urged rather upon the theory of nuisance than of negligence, there was no error in dismissing the complaint against the city.

      Lessin v. Board of Education, 222 App. Div. 667, affirmed.
    (Argued February 24, 1928;
    decided March 27, 1928.)
    Appeal in each of the above-entitled actions by defendant Board of Education, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 30, 1927, affirming a judgment in favor of plaintiff and against defendant Board of Education, entered upon a verdict. Appeal by the plaintiff in such actions from so much of the judgment of the Appellate Division as affirmed a judgment in favor of defendant City of New York entered upon a dismissal of the complaint by the trial court.

      Samuel Lesser, Thomas J. O’Neill and Leonard F. Fish for plaintiff, appellant and respondent.
    The appellant, Board of Education, failed to maintain the elevator and elevator equipment in a reasonably safe condition and hence was guilty of negligence which was the proximate cause of the accident. (Jaked v. Board of Education, 198 App. Div. 113; 234 N. Y. 591; Herman v. Board of Education, 234 N. Y. 196; Metzroth v. City of New York, 241 N. Y. 470; Sprague v. City of Rochester, 159 N. Y. 20.) The appellant, Board of Education, was guilty of negligence in permitting a highly dangerous condition to exist in the sidewalk for a period of upwards of four hours, of which it had notice. (Metzroth v. City of New York, 241 N. Y. 470; Blakeslee v. City of Geneva, 61 App. Div. 42; Rehberg v. City of New York, 91 N. Y. 137, Sprague v. City of Rochester, 159 N. Y. 20; Goodfellow v. City of New York, 100 N. Y. 15.) The respondent, City of New York, is liable, having maintained a nuisance and for the failure to abate the nuisance and guilty of negligence in failing to remove the nuisance and guilty of negligence in failing to protect the pedestrians from the existing danger. (Egan v. City of Buffalo, 173 N. Y. Supp. 474; 188 App. Div. 953; 230 N. Y. 575; Jewhurst v. City of Syracuse, 108 N. Y. 303; Hynes v. New York Central R. R. Co., 231 N. Y. 236; Henry v. Village of Saratoga Springs, 171 App. Div. 827; Johnson v. State, 186 App. Div. 389; Dennis v. Village of Elmira Heights, 59 App. Div. 404; Ivory v. Town of Deerpark 116 N. Y. 476.)

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly, Henry J. Shields, Abraham Greenwald and Charles C. Marrin of counsel), for Board of Education, appellant, and City of New York, respondent.
    The complaint was properly dismissed as against the defendant city. (Gunnison v. Bd. of Education, 176 N. Y. 11; Matter of Fuhrman v. Graves, 235 N. Y. 77; Jorgensen v. Squires, 144 N. Y. 280; Boutet v. City of New York, 199 App. Div. 835; People ex rel. Cross Co. v. Ahearn, 124 App. Div. 840; City of New York v. Buek, 43 Misc. Rep. 663; Matter of Low, 233 N. Y. 334; Title Guarantee & Trust Co. v. City of New York, 185 App. Div. 688; 205 N. Y. 496; City of New York v. Masten, 174 App. Div. 661; 223 N. Y. 638.) The ash hoist as maintained by the defendant Board of Education was not a nuisance. (McDonnell v. Gerken, 197 App. Div. 446; 236 N. Y. 617; Deshong v. City of New York, 176 N. Y. 475; Jorgensen v. Squires, 144 N. Y. 280; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Campion v. Rollwagen, 43 App. Div. 117; Tubesing v. City of Buffalo, 51 App. Div. 14; Schubkegel v. Butler, 76 App. Div. 10; People ex rel. N. Y. & R. Gas Co. v. Cromwell, 89 App. Div. 291; Poole v. Paddell, 160 N. Y. Supp. 1082.) There was no negligence on the part of the defendant Board of Education. (Donovan v. McAlpin, 85 N. Y. 185; Hunt v. Mayor, etc., 20 J. & S. 198; 109 N. Y. 134; Hume v. Mayor, etc., 47 N. Y. 639;
      Slater v. Barnes, 241 N. Y. 284.) There was no proof of freedom from contributory negligence on the part of the infant plaintiff. (People v. Donohue, 114 App. Div. 830; Byrne v. N. Y. C. & H. R. R. R. Co., 83 N. Y. 620; Jacobs v. Kohler S. G. Co., 208 N. Y. 416.) For the acts or omissions of any of its employees who were or might have been implicated in the accident to the infant plaintiff the defendant Board of Education may not be held to liability. (Herman v. Board of Education, 234 N. Y. 196; Johnson v. Board of Education, 210 App. Div. 723; Wahrman v. Board of Education, 187 N. Y. 331; Jaked v. Board of Education, 198 App. Div. 113; 234 N. Y. 591; Katterschinsky v. Board of Education, 215 App. Div. 695.)
   Lehman, J.

The infant plaintiff, a boy about eight years old, played tag with some small companions on the sidewalk in front of the Morris High School in the city of New York. In the course of the game he ran upon the platform of an elevator or hoist, which was used to bring coal and other materials into the cellar of the school building and to remove ashes and waste from the cellar. The platform was level with the street or nearly so. As the boy stepped upon it, one end of the platform gave way and the boy was precipitated into the elevator shaft or hoistway. He sustained grievous injuries. For the consequent damages liability is asserted against the city of New York and the Board of Education.

At the place where the children were playing, the sidewalk is unusually wide. The school building is set back several feet from the building line, and the sidewalk extends, without any line of demarcation, to the wall of the building. The opening of the elevator shaft or hoist-way in the sidewalk is within the building line, but the whole sidewalk is open to the traveling public and is used by it. The children were lawfully playing upon the sidewalk, even though the sidewalk extended beyond the street line. It may not be said that this boy of eight was guilty of contributory negligence as a matter of law in running in play upon the platform of the elevator, if there was nothing to warn him plainly of danger. Though the danger was due to conditions which existed not upon the public street itself, but upon abutting property, it was a danger to which those using the street were subjected. The city of New York has charge and control of the public streets. . Towards those using the streets, it rests under a duty of reasonable care to keep the streets reasonably safe. The Board of Education had charge and control of the school building and its appurtenances. An abutting owner may not render the street unsafe for the public, even by acts done on private property. Both the city and the abutting owner knew that the public used the whole sidewalk. In the absence of some special rule of exemption of liability, each may be held responsible for injuries caused by dereliction on its part in any duty it owed to a person so using the sidewalk. (Klepper v. Seymour House Corp., 246 N. Y. 85.)

The complaint charges that the defendants were guilty of both nuisance and negligence. It is said that the opening of the elevator shaft was not constructed in accordance with section 148, article 13, chapter 23 of the Code of Ordinances of the city of New York, and, therefore, constituted a nuisance regardless of the manner in which it was maintained.

The provisions of the section of the ordinances upon which the plaintiffs rely apply only to obstructions and incumbrances in the city streets and are not intended to render unlawful openings otherwise constructed in the sidewalk within the building line on abutting property, if such openings are constructed in a reasonably safe manner, in accordance with plans approved by the city. In the present case there is nothing in the evidence which suggests that the original construction of the elevator and elevator shaft was not reasonably safe. Liability, if any, must be predicated upon proof that the defendants have been guilty of negligence in the maintenance of the opening. The trial court held that such proof failed to establish wrong by the city and dismissed the complaint against it. The jury has found that the evidence establishes negligence on the part of the Board of Education.

The accident occurred at two o’clock in the afternoon. At about ten o’clock in the morning of the same day, the custodian-engineer ” of the Morris High School and the supervisor or superintendent of maintenance of machinery and apparatus of public schools in the borough of The Bronx, who happened to be in the school building in the course of his duties, were informed that, while the elevator was being used for the delivery of coal, the platform had become stuck when a few inches above the sidewalk. It could not be lowered. A chain at one corner of the platform was broken or had become loosened from the platform. Directions were given to a contractor to repair the elevator. At that time the employees of the board of education had notice that until the elevator was repaired, it constituted a danger to any person, using the sidewalk, who might step upon it. It was their duty to exercise reasonable care to remove the danger, and reasonable care should be commensurate with the danger that threatens. Here the jury might find that the care exercised did not measure up to this standard. There is testimony that the folding doors which ordinarily covered the shaft opening when the elevator was not in use were placed in an upright position and held erect by a bar across the top, and that empty ash cans were ranged in front between these doors. The accident occurred at least three hours thereafter. During the interval the employees of the Board of' Education paid no further attention to the elevator. They were satisfied that the. precautions they had taken were sufficient. At the time of the accident, and, perhaps, for some hours before, the folding doors lay open, flat against the sidewalk, and there were no ash cans in front .of the elevator which was then level with the sidewalk. The precautions taken proved insufficient, and the evidence supports the finding that the employees of the Board of Education in the exercise of reasonable care should have anticipated that they might prove insufficient.

The Board of Education maintains that, even assuming that its employees have been negligent, as an agency of the State performing a governmental function it is not responsible for the negligence of its employees or agents. The property of the city of New York is “ under the care and control of the board of education.” (Greater New York Charter, section 1055.) The Board of Education has assumed performance of the function and. duty to control and care for the school building imposed upon it under the charter and under section 868, subdivision 3, of the Education Law (Cons. Laws, ch. 16). Duties so imposed and assumed may not be delegated to another. They are corporate duties, and for dereliction in the discharge of such duties there is a corporate responsibility. (Herman v. Board of Education, 234 N. Y. 196; Wahrman v. Board of Education, 187 N. Y. 331.)

The Board of Education is a governmental agency, not a civil division, of the State. (Herman v. Board of Education, supra.) Even where the rule is maintained that civil divisions of the State, when engaged as delegates of the State in the discharge of governmental functions, are not liable for the torts of their agents and contractors, tb e rule has not- been extended to exempt a governmental agent from liability for his own dereliction. The State has creatéd the Board of Education >as a corporate agent to discharge governmental functions. No exemption from responsibility for dereliction in the discharge of a corporate duty has been granted. The responsibility of the individual agents and officers of the State for their own derelictions has been transformed into a corporate liability (Bassett v. Fish, 75 N. Y. 303.)

Some duties imposed upon the Board of Education may be carried out by the Board without the intervention of any agent. It must provide for the instruction of the school children. It appoints teachers for that purpose. Its duty is then performed. It does not itself teach, and the teachers are not the agents of the Board. For that reason the Board of Education may not be held hable for neghgence of a teacher in the giving of instruction or in the use of materials furnished by the Board. (Johnson v. Board of Education, 210 App. Div. 723; Katterschinsky v. Board of Education, 215 App. Div. 695.)

The duty of caring for school buildings is, by its nature, a continuing duty which is imposed directly upon the Board of Education. The members of the Board cannot discharge that duty collectively without the intervention of agents or employees, but the duty of the Board is not complete when it appoints such agents or employees. It acts through them. If they fail to discharge properly the functions assumed by the Board, the Board is responsible for such failure, aside from any rule of agency. The Board itself has in such case failed to perform a duty imposed upon it by law, and liability may be predicated upon its own wrong. (Herman v. Board of Education, supra; Jaked v. Board of Education, 198 App. Div. 113; affd., 234 N. Y. 591.)

A danger to the public using the street existed upon abutting property in the control of the Board of Education. As soon as that danger became known to it, or should have been discovered in the exercise of reasonable care, the duty to warn or guard the public against it arose. Because of the negligence of the employees of the Board, that duty was not properly performed. Even if we assume that the Board of Education acting as a governmental agency is not responsible for the neghgence of its agents, such neghgence cannot excuse the resultant failure of the Board to discharge the duty imposed upon it by law. The Board remains hable for the proper performance of its duty, even though it intrusts performance to an appointee, at least to the same extent as if it arranged that such duties should be performed by an independent contractor.

It is said that if liability is imposed upon the Board of Education for its own dereliction and not, under the rule of respondeat superior, for the'negligence of its employees, notice of the existence of the danger given to the employees of the Board may not be regarded as notice to the Board. That does not follow. The Board intrusted, as it was bound to do, the care of the building to its employees. It acted, and could act, only through them. Except by notice to such employees it could hardly obtain knowledge of the existence of any defect in a building under its care or any danger which called for vigilance on its part. It was derelict when it failed to take appropriate action upon the knowledge so obtained.

The record does not show that any employee or officer of the city intrusted with the care of the streets had any actual notice that the elevator was defective or constituted a danger to the public. It is not clear under all the circumstances that in the exercise of reasonable care by any of them such a danger should have been discovered. At the trial, liability against the city was urged rather upon the theory of nuisance than of negligence. We find that there was no error in dismissing the complaint against the city.

The judgment in each action should be affirmed, with costs to the plaintiff against the Board of Education.

Cardozo, Ch. J., Pound, Crane, Andrews and Kellogg, JJ., concur; O’Brien, J., not sitting.

Judgments affirmed, etc.


author: Per Curiam.

text:
    In the Matter of the Claim of Mary Ziolkowski, against American Radiator Company et al., Respondents. State Industrial Board, Appellant.
    Workmen’s compensation — master and servant — employee exposed to great cold in performance of duties — effort to keep warm by bringing pails of hot coal into small cab not abandonment of employment — risk therefrom a natural consequence of work.
    The act of an employee, whose duties required him to sit upon an iron stool in an unheated cab on a cold night in winter, in placing, without the permission or knowledge of his employer, two pails of hot coals in the cab, thereby creating a dangerous situation, as a result of which his clothes caught fire and he died from burns, may have been negligent but was not an abandonment of his employment. His efforts to relieve himself from the discomfort of extraordinary cold were the natural result of the conditions created by his employment. The risk was not only directly connected with the work but it was a natural consequence of the work.

      Matter 0/ Ziolkowski v. American Radiator Co., 222 App. Div. 708, reversed.
    (Argued February 13, 1928;
    decided March 27, 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.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for appellant.
    The accident by which the employee was burned to death arose out of and in the course of his employment. (Maladrino v. Southern N. Y. Power & R. R. Co., 20 State Dept. Rep. 438; 190 App. Div. 780; Matter of Moore v. Lehigh Valley R. R. Co., 169 App. Div. 177; 217 N. Y. 627; Northwestern Iron Co. v. Industrial Comm., 160 Wis. 633; Edmunds v. Peterson, 5 B. W. C. C. 157; Von Ette’s Case, 223 Mass. 56.)

      Clarence B. Tippett for respondent.
    The injuries which caused the death of the deceased did not arise out of and in the course of his employment, and the order of the Appellate Division reversing and dismissing the claim should be affirmed. (Strand v. Harris Structural Steel Co., 209 App. Div. 310; Saenger v. Locke, 220 N. Y. 556; Gifford v. Patterson, 222 N. Y. 4; Di Salvio v. Menihan Co., 225 N. Y. 123; Scholtzhauer v. C. & L. Lunch Co., 233 N. Y. 12; De Filippis v. Falkenberg, 170 App. Div. 153; 219 N. Y. 581; Stillwagon v. Callan Bros., 224 N. Y. 714; Frost v. Franklin, 204 App. Div. 700; 236 N. Y. 649; Di Salvo v. Jenkins, 239 N. Y. 531; McCarter v. La Rock, 240 N. Y. 282.)
   Per Curiam.

Joseph Ziolkowski was employed to operate an electric crane used in the yards of a foundry of the American Radiator Company. His duties required him to sit upon an iron stool in the cab of the crane. The cab was small. Ziolkowski’s hours of work began at five o’clock in the afternoon. They continued ordinarily till the early morning hours. The night of January 27th, 1927, was cold — it is said, the coldest night of the winter. The cab was unheated. At eleven o’clock that night the foreman passed the cab where Ziolkowski was working and called to him: “ How is everything? ” Ziolkowski answered: Pretty cold, but I think I can stick it out.” Two hours thereafter, while Ziolkowski was still in the cab of the crane, his clothes caught fire. Two pails of hot coal were at that time in the small cab. The Industrial Commission has found that Ziolkowski’s clothing caught fire from the contents of the pails. Ziolkowski died the same day as a result of burns.

The crane was operated by electricity. The pails of hot coal in the cab had been placed in the cab for the purpose of keeping the operator warm. They were placed there by the operator without the permission or knowledge of the employer. Doubtless they were so placed by the operator for his own comfort while working. An award to the dependents of the deceased employee has been reversed and their claim dismissed on the ground that the injury did not arise out of the employment, and as a natural incident to the work.

It is natural for a workman exposed to the discomfort of great cold to try to keep himself warm. The method adopted by the employee here created a dangerous situation for him in the close confinement of the small cab. His act may have been negligent, it certainly was not an abandonment of his employment. He sought to relieve himself, while his employment continued, from the discomfort of extraordinary cold to which his employment exposed him that night. His efforts were the natural result of the conditions created by the employment. The risk was not only directly connected with the work, but it was a natural consequence of the work.

The older of the Appellate Division should be reversed and the award of the State Industrial Board affirmed, with costs in the Appellate Division and in this court.

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

Ordered accordingly.


text:
    Marie S. Livingston, as Administratrix of the Estate of Robert L. Livingston, Deceased, et al., Respondents, v. Bayard U. Livingston et al., Respondents, and Charles M. Hough, as Executor and Trustee under the Will of Anne D. Thomson, Deceased, et al., Appellants.

      Title — real property — decedent’, s estate — action to determine rights oj parties to real property.

      Livingston v. Livingston, 216 App. Div. 698, reversed.
    (Argued December 14, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered October 9, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment in favor of defendants-appellants, entered upon an order of Special Term granting a motion for judgment on the pleading and directed judgment in favor of plaintiffs and defendants-respondents. The action was to determine and declare the rights of the respective parties in and to certain real property, a portion of the estate of James Thomson, deceased.

      Charles Evans Hughes, Herman S. Hertwig, Langdon P. Marvin and Henry B. Closson for Charles M. Hough, as executor and trustee, et al., appellants.

      Louis 0. Van Doren, William R. Conklin and Edward S. Bentley for Ladies’ Home Society, appellant.

      Russell Benedict, William A. Alcock and Williston Benedict for Association for Relief of Indigent Females et al., appellants.

      J. Culbert Palmer, Jr., and Percy D. Trafford for Society for Relief of Poor Widows, appellant.

      Alfred R. Page for plaintiff s-respondents.

      Joseph W. Welsh, Roland L. Redmond, Alfred C. Petté, Philip M. Brett, W. A. W. Stewart and Frank B. Holsapple for defendants-respondents.

      John N. Drake for Brockholst Livingston, defendant-respondent.
   Judgment of Appellate Division reversed, without costs, and judgment of Special Term affirmed on authority of Livingston v. Ward (247 N. Y. 97).

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


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

      Crimes — appeal — reversal by Appellate Division of judgment of conviction — appeal by People, without permission, to Court of Appeals, dismissed.

      People v. Arthur, 221 App. Div. 227, appeal dismissed.
    (Argued November 28, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 14, 1927, which reversed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of robbery in the second degree and remanded the defendant for resentence.

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for appellant.

      Joseph Lonardo and Richard J. Barry for respondent.
   Appeal dismissed on authority of People v. Kevlon (247 N. Y. 192).

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


text:
    The People of the State of New York, Appellant, v. Dominick Di Maggio, Respondent.

      Crimes — appeal — reversal by Appellate Division of judgment of conviction — appeal by People, without permission, to Court of Appeals, dismissed.

      People v. Di Maggio, 221 App. Div. 17, appeal dismissed.
    (Submitted November 28, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 5, 1927, which reversed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of illegally carrying a dangerous weapon, dismissed the indictment and directed the discharge of defendant from custody.

      Joab H. Banton, District Attorney (Robert C. Taylor of counsel), for appellant.

      K. Henry Rosenberg for respondent.
   Appeal dismissed on authority of People v. Kevlon (247 N. Y. 192).

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


text:
    John J. Shannon, Respondent, v. The Cunard Steam Ship Company, Ltd., Appellant. William Ryan, Respondent, v. The Cunard Steam Ship Company, Ltd., Appellant. Austin T. Hickey, Respondent, v. The Cunard Steam Ship Company, Ltd., Appellant.

      Malicious prosecution — probable cause — actions to recover for arrest on indictments for conspiracy found on injor matron furnished by defendant. Shannon v. Cunard S. S. Co., Ltd., 22U App. Div. 761, affirmed. Ryan v. Cunard S. S. Co., Ltd., 220 App. Div. 761, affirmed.

      Hickey v. Cunard S. S. Co., Ltd., 220 App. Div. 761, affirmed.
    (Argued December 1, 1927;
    decided January 10, 1928.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 1, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for alleged malicious prosecution. The. plaintiffs, on information presented by-defendant through and by the advice of its attorneys, were indicted in New Jersey for the crime of conspiracy to pad the payrolls of defendant, arrested and imprisoned until released on bail. Thereafter the indictments were dismissed. The question in each case was whether defendant had probable cause to justify the complaint.

      Thaddeus G. Cowell for appellant.

      Abraham C. Cohen and George B. Simpson for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Kin Hanna, Appellant.

      Bastardy — order of filiation affirmed.

      People v. Hanna, 219 App. Div. 751, affirmed.
    (Argued December 5, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 4, 1927, which affirmed an order of the Essex County Children’s Court adjudging defendant to be the father of an illegitimate child and directing that he pay a stated sum weekly to the overseer of the poor of the town of Jay for its support.

      H. P. Kehoe for appellant.

      E. J. Vincent for respondent.
   Order affirmed; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel Sieger, Appellant.

      Crimes — assault in second degree — judgment of conviction affirmed.

      People v. Sieger, 219 App. Div. 773, affirmed.
    (Submitted December 5, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 1927, which affirmed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of assault in the second degree.

      Robert S. Johnstone and Stanley L. Richter, for appellant.

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

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


text:
    Andrew W. Mellon, Director General of Railroads, Appellant, v. Rochester Can Company, Respondent.

      Arbitration — action to recover on alleged award of Interstate Commerce Commission.

      Davis v. Rochester Can Co., 220 App. Div. 487, affirmed.
    (Argued December 5, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered May 7, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. The action was to recover the amount of an alleged award of the Interstate Commerce Commission for car demurrage. A dispute having arisen between plaintiff and defendant as to the latter’s liability for car demurrage the question was submitted to the Interstate Commerce Commission, whose secretary thereafter wrote to defendant that the Commission had considered the matter and held that the car in question was subject to the charges. The Appellate Division held that the holding of the Commission was not an award but simply an expression of opinion, informal and advisory only.

      Paul Folger for appellant.

      John D. Lynn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Peoples Trust Company et al., as Executors of Kate Duryea, Deceased, Respondents, v. Union Ferry Company of New York and Brooklyn, Appellant.

      Landlord and tenant — lease — tax — covenant by lessee to pay taxes levied on property during term — liability for tax levied but not due until date of expiration of lease — validity of tax.

      Peoples Trust Co. v. Union Ferry Co., 219 App. Div. 792, affirmed.
    (Argued December 5, 1927;
    decided January 10, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1927, unanimously affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court in an action to recover the amount of a tax paid by plaintiffs for land leased by defendant from their testatrix, the lease containing a clause that defendant, “ its successors and assigns, shall and will well and truly pay all taxes, water rents and assessments which may be laid or imposed on said premises.” The tax was imposed in March, 1913, but did not become a lien until May 1, 1913, on which day the lease terminated. Defendant contended it was liable to pay only such taxes as became liens and were payable during the term of its lease and that in any event the tax was not properly levied and was invalid.

      George P. Hotaling for appellant.

      James F. McNaboe for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Crane, Andrews, Kellogg and O’Brien, JJ. Dissent: Cardozo, Ch. J., and Lehman, J., on the ground of error in rejecting evidence of the invalidity of the assessment.


text:
    Anita Johnson, Respondent, v. Interborough Rapid Transit Company, Appellant.

      Negligence — railroads — injury to passenger from tripping over box ' left on platform of car.

      Johnson v. Interborough Rapid Transit Co., 220 App. Div. 721, affirmed.
    (Submitted December 5, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered April 14, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial and directed the reinstatement of the verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that plaintiff while attempting to alight from defendant’s subway train at Times Square station, Manhattan, tripped over an obstruction, negligently left on the platform of said train, and fell between the platform of the train and the platform of the station, sustaining the injuries complained of. The trial court set aside the verdict for plaintiff on the ground that there was no evidence sufficient to justify the inference that defendant had knowledge of the presence on the platform of the box over which plaintiff tripped. The Appellate Division reinstated the verdict on the ground that “ the evidence justified the inference that the box which obstructed the passenger’s exit was last seen by defendant's servant and in the control and possession of defendant. The defendant vouchsafed no explanation of the character of the box and offered no evidence that it was not an article belonging to the defendant or to one of its employees and utilized in defendant’s business.”

      Bayard H. Ames and James L. Quackenbush for appellant.

      Ralph G. Barclay, Jay S. Jones and Jacob Saul Barshay for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Murray A. Dodds, Respondent, v. De Grasse Paper Company, Appellant.

      Riparian rights — water and water courses — injunction — defendant restrained from discharging from its mill into a stream flowing through plaintiff’s land substances in quantities sufficient to cause damage.

      Dodds v. De Grasse Paper Co., 220 App. Div. 786, modified.
    (Argued December 6, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 24, 1927, unanimously affirming a, judgment in favor of plaintiff entered upon the report of a referee. The action was for an injunction and damages alleged to have been caused by the defendant discharging refuse into the Grasse river from its paper mill at Pyrites, St. Lawrence county, N. Y., which in turn was alleged to have been deposited by river floods on the plaintiff’s farm. By the judgment the defendant was enjoined from depositing or discharging into the Grasse river from its mill any wood, pulp, paper, ground wood or any pulpy substances.

      John G. Jackson and Horace C. Hale for appellant.

      George H. Bowers for respondent.
   Judgment modified by providing that the defendant and its successors in interest be restrained from depositing or discharging into the Grasse river from its mill at Pyrites, N. Y., any wood, pulp, paper, ground wood or any pulpy substance in such quantities as to work any damage to the plaintiff, and as modified affirmed, with costs to the respondent.

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


text:
    Clara Underhill, an Infant, by Helen U. Doll, Her Guardian ad Litem, Respondent, v. Frank Major, Appellant.

      Negligence — gasoline service station — injury to passenger in auto* mobile from fire caused by pumping gasoline into tank in close proximity to lighted lantern.

      Underhill v. Major, 220 App. Div. 173, affirmed.
    (Argued December 6, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 15, 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, who operated a gasoline service station. It was alleged that his servant or agent pumped gasoline into an automobile tank in such close proximity to a lighted lantern that the gasoline caught fire and plaintiff, a passenger in the automobile, was burned.

      Ford White for appellant.

      Charles W. Strong for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Abram C. Wisner et al., Respondents, v. Lee DeForest et al., Appellants.

      Contract — consideration — default by plaintiffs in payment of balance due for corporate stock — agreement by defendant to refund amount paid in consideration of plaintiffs’ procuring another purchaser for stock — sufficiency of consideration.

      Wisner v. De Forest, 220 App. Div. 454, affirmed.
    (Argued December 6, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 6, 1927, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The action was on contract. The evidence showed that plaintiff had agreed to buy from defendants certain voting trust certificates representing shares of stock in a corporation; that after paying a portion of the purchase price and expending an additional sum to acquire certain patents, plaintiff was unable to pay the balance due and defaulted thereon; but, at the request of defendants he procured another to purchase the certificates and pay to defendants the full amount of the agreed purchase price plus the amount paid by plaintiff for the patents, whereupon defendants agreed in consideration of his services and disbursements to refund to him the amounts he had paid.

      Samuel Seabury and George Trosk for appellants.

      R. Randolph Hicks and Lloyd F. Thanhouser for respondents.
   Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

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


text:
    Florence K. Scott, Respondent, v. Graham Scott, Appellant.

      Appeal — motion for sequestration of property and appointment of receiver to collect alimony — appeal to Court of Appeals from order of Appellate Division reversing on law and facts order denying motion and granting same, dismissed.

      Scott v. Scott, 219 App. Div. 451, appeal dismissed.
    (Argued December 6, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 10, 1927, which reversed on the law and the facts an order of Special Term denying a motion by plaintiff for sequestration of property of defendant and the appointment of a receiver to collect alimony and granted said motion.

      Harry C. Miller and Howard A. Rockford for appellant. A. Walker Otis for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Nicholas McKenna, as Ancillary Executor of Gertrude Malnati, Deceased, Appellant, v. Metropolitan Life Insurance Company, Respondent.

      Appeal — order of Appellate Division reversing order granting motion for summary judgment and denying motion — appeal to Court of Appeals dismissed.

      McKenna v. Metropolitan Life Ins. Co., 220 App. Div. 53, appeal dismissed.
    (Argued December 6, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 25, 1927, which reversed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion for summary judgment and denied said motion.

      Fred Iscol and Hector McG. Curran for appellant.

      James C. Van Siclen and Henry C. Frey for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Edward C. Becherer, Appellant, v. Elizabeth V. Becherer, Respondent.

      Husband and wife — cancellation — action by husband to cancel and set aside deeds of real property conveyed by him to his wife.

      Becherer v. Becherer, 219 App. Div. 814, affirmed.
    (Argued December 6, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1927, 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 husband against wife to cancel and set aside two deeds of real property theretofore conveyed by him to her.

      Harry A. Gair for appellant.

      Seymour Mark for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Jaquino Realty Corporation, Appellant, against William C. Ormond et al., Constituting the Board of Assessors of the City of New York, Respondents.

      New York city — streets — change of grade — erection of board walk on beach not change of grade within meaning of provision of charter for damages to abutting property.

      ■ Matter of Jaquino Realty Corp. v. Ormond, 217 App. Div. 76, affirmed.
    (Argued December 7, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1926, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the board of assessors of the city of New York to ascertain the damage, if any, sustained by petitioner’s property by reason of the construction of the board walk on the beach at Coney Island. The petitioner owned real property which fronted for 100 feet on the. beach. The Appellate Division held that the erection of the board walk was not such a change of grade in a street or avenue as was contemplated in section 951 of the charter of the city of New York, providing for award of damages to property owners arising from grading streets.

      Charles Lamb and Charles J. Nehrbas for appellant.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly and John J. Mead of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Rachel Yedlin et al., Respondents, v. Harris Rubin et al., Appellants, Impleaded with Another.

      Vendor and purchaser ■ — fraud—false representations • — fiduciary relations — action to rescind purchase of real property, cancel purchase-money bond and mortgage and recover cash paid on transfer.

      Yedlin v. Rubin, 219 App. Div. 694, affirmed.
    (Argued December 7, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered March 26,1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiffs. The action was brought to rescind the purchase by plaintiffs of certain real property, to cancel a purchase-money bond and mortgage and to recover the cash paid by them upon the conveyance of the property on the ground of fraud. The evidence shows that one of the plaintiffs, a widow who had received some life insurance on the death of her husband, consulted one of the defendants, an officer of her church in whom she had confidence, as to investment, and on his advice purchased from his son the premises in question; that a portion of the premises were untenanted at the time, but that defendants falsely represented that they were all rented and that the tenants would shortly move in; that no tenants moved in and that a few months after taking title, plaintiff being unable to meet payments due on the mortgage, the same was foreclosed and she lost everything. The Appellate Division held that there was a fiduciary relationship and that defendants knew or should have known that plaintiffs would be unable to carry the property.

      Robert H. Wilson and Max L. Kane for appellants.

      Gustave B. Garfield and Maurice V. Seligson for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Morris Rosenblum, Respondent, v. Morris Feller et al., Copartners Doing Business under the Name of New England Doughnut and Cruller Company, Appellants.

      Negligence — motor vehicles — evidence — action to recover for personal injuries arising from collision of automobile with wagon — evidence that defendants were insured and that one of defendants had given untrue testimony pursuant to conspiracy with plaintiff to mulct insurance company, properly excluded.

      Rosenblum v. Feller, 221 App. Div. 805, affirmed.
    (Argued December 7, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 8, 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 while driving a wagon northerly on North Broadway in the city of White Plains received the injuries complained of as the result of a collision with an automobile owned by defendants. It was contended that the trial court erred in refusing to permit counsel for the insurance company defending the action to prove that defendants were insured against accident and that one of the defendants called as a witness on their behalf had conspired with the plaintiff to mulct the insurance company and had given untrue testimony.

      William C. Fiest and F. A. W. Ireland for appellants.

      Charles Edward Long, Francis J. Mahony and Thomas A. McKennell for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles S. Cash, Inc., Respondent, v. Isaac Steinbook et al., Appellants.

      Trade names — unfair competition — action to restrain imitation by defendants of plaintiff’s store fronts and of their trade-marks and slogans.

      Cash, Inc., v. Steinbook, 220 App. Div. 569, affirmed.
    (Argued December 7, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered June 4, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to restrain the use by defendants in their several stores of blue and orange lettering in such combination as to constitute an imitation and simulation of the plaintiff’s windows and store fronts, and from using a trade-mark and trade slogan in simulation of those used and registered by the plaintiff.

      Wallace T. Stock, Edwin L. Garvin and Samuel Weiss for appellants.

      Lewis F. Glaser and Isidor J. Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Carter, Macy Company, Inc., Appellant, v. George T. Matthews et al., Respondents.

      Contract — sale — action to recover purchase price of goods alleged to have heen sold — complaint properly dismissed on ground there was no transfer of title.

      Carter, Macy Co., Inc., v. Matthews, 220 App. Div. 679, affirmed.
    (Argued December 8, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered June 16, 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 to recover the purchase price of three lots of tea alleged to have been sold to defendants. The only memorandum of the sale was unsigned and before the tea arrived in New York defendants notified plaintiff they would not accept it. The Appellate Division held there was no transfer of title and hence the action for the price could not be maintained and that, furthermore,' the defense of the Statute of Frauds was sustained by the proof.

      Edward W. Bourne and Clifton P. Williamson for appellant.

      Thomas Gregory and William E. Vogel for respondents.'
   Judgment affirmed, with costs, on ground there was no transfer of title of the subject-matter of the sale.

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


text:
    In the Matter of the Accounting of William J. Danaher, as Executor of Edward C. Ball, Deceased, Appellant. William Ball et al., Appellants; Alice J. Gillen, Respondent.

      Bills, notes and checks — consideration — claim against decedent’s estate on note made by decedent before death — presumption of consideration from use of words “value received.”

      Matter of Ball, 221 App. Div. 228, affirmed.
    (Argued December 8, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 3, 1927, which reversed a decree of the Kings County Surrogate’s Court, in so far as it disallowed the claim of the respondent herein based upon the following instrument:
    “ $20,000.00
    “ St. Augustine, Fla. April 9th, 1923.
    “On or before sixty days after date, I promise to pay to the order of Alice J. Hunter, Twenty thousand ($20,000.00), for value received, negotiable and payable at St. Augustine, Florida or Brooklyn, N. Y.
    “It is agreed by the parties hereto that the maker of this note can pay the same in United States Liberty Bonds, of the par value of twenty thousand ($20,000.00) Dollars-
    “ E. BALL [seal] ”
    The Appellate Division held that the evidence was insufficient to overcome the presumption of sufficient consideration arising from the words “ value received.”

      John J. Cunneen, Charles O. Grim and JohnF. Middle-miss for appellants.

      Philip J. Britt and Stephen E. Ryan for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Alexander J. Staub, Respondent, v. Blank Feuer Co., Inc., Appellant.

      Contract — sale — rescission — fraud — action to rescind contract of sale of real property on ground of false representations.

      Staub v. Blank Feuer Co., Inc., 220 App. Div. 724, affirmed.
    (Submitted December 8, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 17, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was in equity to rescind a contract of sale of real property situate at 110 and 116 Cambridge street, in the borough of Brooklyn, upon the ground of fraud. The plaintiff established that the defendant fraudulently represented that a second mortgage of $92,000 contained the usual and customary clauses, whereas in fact the said mortgage contained the following unusual clause: “ The unpaid balance of principal and interest hereby secured shall, at the option of the mortgagee, become forthwith due and payable upon any part of the premises becoming let to, owned or occupied by persons other than of the white race.”

      Benjamin Reass, Hugo Hirsh, Emanuel Newman and Leonard F. Manheim for appellant.

      Charles Berlin, Henry C. Berlin and Robert B. Wilkes for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George B. Ritchie & Co., Inc., Respondent, v. Paul Puttmann, Inc., Appellant.

      Contract — sale — food — gelatine sold to defendant with understanding it was not to be resold as edible — action to recover amount of fine paid government for violation by defendant of understanding.

      Ritchie & Co. v. Puttmann, Inc., 220 App. Div. 676, affirmed.
    (Argued December 8, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered June 8, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing judgment in favor of plaintiff. The action was to recover an amount paid by plaintiff to the United States Treasury in compromise of its civil liability on a bond given by it to release certain gelatine imported by it for defendant’s account, conditioned that the goods would be held for redelivery to the government on its demand. Plaintiff thereafter obtained permission to dispose of the gelatine for technical purposes but, in violation of the permission so granted, defendant disposed of it for food purposes, whereupon the government demanded the return of the goods, and plaintiff being unable to comply was compelled to pay the sum sued for.

      Joseph V. Flynn and Morris Blau for appellant.

      David Sleekier for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Albert W. Dunton et al., Respondents, v. Elvin R. Underwood et al., Appellants.

      Contract — action to recover amount due for purchasing and handling merchandise for defendants.

      Dunton v. Underwood, 220 App. Div. 745, affirmed.
    (Submitted December 9, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 18, 1927, affirming a judgment in favor of plaintiffs entered upon a verdict. The action was to recover the amount due under an alleged contract whereby plaintiffs were to purchase and handle grapes for the defendants.

      John J. Hyland for appellants.

      James 0. Seining for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Paul Krauza et al., Respondents, v. Golden Seal Assurance Society, Appellant.

      Insurance {life) — action to recover on certificate of life insurance — defense of material misrepresentations in application by insured — insufficiency of evidence to show misrepresentations were material.

      Krauza v. Golden Seal Assurance Society, 221 App. Div. 380, affirmed.
    (Argued December 9, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 24, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a certificate of life insurance. The defense was that the insured in his application misrepresented a material fact in that he denied having ever consulted or been treated by a physician. There was evidence tending to show he had consulted and been treated by physicians within two months of the application but there was no evidence as to the nature of his ailment at that time or that it left any permanent physical weakness which contributed to his death. The Appellate Division held that defendant had failed to establish that the misrepresentation was material.

      John H. Clogston for appellant.

      Thomas R. Wheeler, William M. Fay and Charles E. Doane for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    William Kennelly, Inc., Respondent, v. Jacob S. Mehlman, Appellant.

      Bills, notes and checks — auction — fraud — false representations — action to recover upon check payment of which had been stopped — defense that it was procured by false representations.

      Kennelly, Inc., v. Mehlman, 220 App. Div. 762, affirmed.
    (Submitted December 9, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 3, 1927, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a check payment of which had been stopped. The defense was that the check had been given as part of the purchase price of certain real property sold by the plaintiff to the defendant at public auction at which material misrepresentations were made as to the location of the premises, the title thereto, existing mortgages thereon, the rent roll and the nature of the building.

      Louis Susman for appellant.

      Harry Sena and Leonard Klein 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. Philip Ecker and Harry Vishnitzer, Appellants.

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

    (Argued December 12, 1927;
    decided January 10, 1928.)
    Appeals from a judgment of the Court of General Sessions of the county of New York, rendered July 18, 1927, upon a verdict convicting the defendants of the crime of murder in the first degree.

      George Z. Medalie, Morgan A. Jones and Jacob J. Rosenblum for Philip Ecker, appellant.

      Abraham I. Menin, Fiorella La Guardia and Asa 8. Herzog for Harry Vishnitzer, appellant.

      Jodb H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
   Judgment of conviction affirmed as to each defendant; no opinion.

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


text:
    Old Colony Trust Company, Appellant, v. Gustav Stumpel, Respondent.

      Bills, notes and checks — negotiable instruments — note bearing indorsement that it is subject to terms of another unattached agreement not negotiable.

      Old Colony Trust Co. v. Stumpel, 219 App. Div. 771, affirmed.
    (Argued December 12, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 28, 1927, affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was to recover upon promissory notes made by defendant to a corporation and by it delivered to plaintiff as security for a loan. Each note bore upon its face an indorsement as follows: “This note is given in accordance with the terms of a conditional sales agreement between the payee and the maker hereof.” On the back of each note in addition to other matter was indorsed: “ The within notes is subject to the terms of a conditional sales agreement executed by the maker thereof upon this date.”

      Edward H. Blanc, George S. Mittendorf and Ramsey Clayton for appellant.

      Raymond Gitlin and William Walzer for respondent.
   Judgment affirmed, with costs, upon the ground that the provision in the note to the effect that it is subject to the terms of another agreement not attached thereto makes the promise of payment one that is not absolute on its face and thus destroys negotiability.

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


text:
    Edward Grossman, Respondent, v. The London Guarantee and Accident Co., Ltd., Appellant.

      Insurance (accident) — cancellation — action to recover upon certificate of accident insurance issued by club under general policy insuring its members — defense that certificate had been canceled.

      Grossman v. London G. & A. Co., Ltd., 219 App. Div. 815, affirmed.
    (Argued December 12, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 18, 1927, which affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of plaintiff, entered upon a verdict directed by the court. The action was to recover upon a certificate of accident insurance which recited that defendant had issued a policy of accident insurance to the “ Travel Club of America” and that plaintiff, a member of said club, was insured thereunder for one year from November 1, 1922, against bodily injuries. Plaintiff was injured May 25, 1923. The defense was that defendant had on February 17, 1923, notified the “ Travel Club ” that plaintiff’s certificate with others [had been canceled for non-payment of the premiums.

      George F. Hickey, Henry L. Ughetta and William Butler for appellant.

      Harris J ay Griston and Charles Braunhut for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elfrida Mellish, Appellant, v. Atchison, Topeka and Santa Fe Railway Company, Respondent.

      Assault — railroads — passenger — action for alleged assault in removing passenger from train for failure to pay fare of child who accompanied her.

      Mellish v. Atchison, Topeha & Santa Fe By. Co., 215 App. Div. 767, affirmed.
    (Argued December 13, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1925, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover for an alleged assault perpetrated by defendant’s employees while ejecting plaintiff from one of defendant’s trains. ' The defense was that plaintiff was lawfully ejected for failure to pay the fare of a child over five years of age who accompanied her.

      Michael Potter and Edward Potter for appellant.

      Homer W. Davis and A. 8. H. Bristow for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Smith & McCrorken, Inc., Appellant, v. Chatham Phenix National Bank and Trust Company, Respondent.

      Appeal — order of Appellate Division reversing order granting motion for summary judgment and denying motion — appeal to Court of Appeals dismissed.

      Smith & McCrorken, Inc., v. Chatham Phenix Nat. Bank, 220 App. Div. 443, appeal dismissed.
    (Submitted December 13, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 6, 1927, which reversed an order of Special Term granting a motion by plaintiff for summary judgment and denied said motion.

      S. Leighton Frooks and Philip Krieger for appellant.

      Jacob Scholer and James S. Hays, for respondent.
   Appeal dismissed, 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. Isador Lewis, Appellant.

      Crimes — vagrancy — judgment of conviction affirmed.

    (Argued December 13, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Court of Special Sessions of the city of New York, entered July 8, 1927, which affirmed a judgment of a city magistrate convicting the defendant of the crime of vagrancy as defined in subdivisions 4-e and 4-f of section 887 of the Code of Criminal Procedure. ' ■

      Leo H. Klugherz and Leonard A, Snitkin for appellant.

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

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


text:
    Edith Dornbusch, Respondent, v. William F. Dornbusch, Appellant.

      Husband and wife — loans — action by wife to recover money alleged to have been loaned to husband.

      Dornbusch v. Dornbusch, 220 App. Div. 759, affirmed.
    (Argued December 13, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 31, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action, wife against husband, was to recover money alleged to have been loaned. The answer denied the making of the alleged loans and as a separate defense alleged that plaintiff had turned over to defendant a sum of money for safekeeping which he had repaid.

      John H. Jackson for appellant.

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

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


text:
    Joseph Wolf, Appellant, v. The State of New York, Respondent.

      State — claims — Statute of Limitations — claim properly dismissed for failure to file claim or notice of intention to file claim within six months after claim accrued.

      Wolf v. State of New York, 219 App. Div. 584, affirmed.
    (Argued December 13, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered January 20, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon an award of the Court of Claims and directing a dismissal of the claim on the ground that plaintiff had failed to comply with section 15 of the Court of Claims Act providing that either the written claim or written notice of intention to file a claim shall be filed with the clerk of the Court of Claims and the Attorney-General within six months after the claim accrued.

      Max Dorff for appellant.

      Albert Ottinger, Attorney-General (James Gibson of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frederick W. White, Respondent, v. Clarence M. Busch, Appellant.

      Contract — action to recover amount alleged to be due under pooling agreement.

      White v. Busch, 220 App. Div. 829, affirmed.
    (Argued December 13, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 28, 1.927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover an amount alleged to be due and owing under a pooling agreement between two stockholders of a corporation whereby, it is alleged, they agreed to pool and divide pro rata, according to their investment, certain moneys due and owing to them.

      Isaac R. Oeland 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:
    In the Matter of the Probate of the Will of Robert G. McClear, Deceased. Robert E. McClear et al., Appellants; Sarah A. McClear, Respondent.

      Will — probate contested on ground of mental incapacity.

      Matter of McClear, 214 App. Div. 683, affirmed.
    (Argued December 14, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 23, 1925, which reversed a decree of the Jefferson County Surrogate’s Court denying probate of a paper propounded as the last will of Robert G. McClear, deceased, and remitted the matter to the Surrogate’s Court with a direction to admit the will to probate. The will was contested on the ground that at the time of its making the testator was mentally incompetent. Nathaniel F. Breen for appellants.

      Delos M. Cosgrove and Loren E. Harter 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, Respondent, v. Dominick Bush, Appellant.

      Crimes - — ■ manslaughter — culpably negligent operation of automobile — judgment of conviction affirmed.

      People v. Bush, 215 App. Div. 860, affirmed.
    (Argued December 16, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 13, 1926, which affirmed a judgment of the Oneida County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the second degree in having caused death through his culpably negligent operation of an automobile.

      Leo O. Coupe and James Coupe for appellant.

      Charles L. De Angelis, District Attorney, 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, Respondent, v. Harry Zierler, Appellant.

      Crimes — knowingly making false financial statement — judgment of conviction affirmed.

      People v. Zierler, 220 App. Div. 825, affirmed.
    (Submitted December 16, 1927;
    decided January 10, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 17, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of knowingly making a false financial statement in violation of section 1293-b of the Penal Law.

      Bennett E. Siegelstein for appellant.

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

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


text:
    Joseph B. Giblyn, Appellant, v. Downey Shipbuilding Corporation, Respondent.
    (Submitted January 9, 1928;
    decided January 17, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 507.)


text:
    James Pendergast, Appellant, v. The Globe and Rutgers Fire Insurance Company of the City of New York, Respondent.
    (Submitted January 9, 1928;
    decided January 17, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 396.)


text:
    Edwin Smith, Respondent, v. Northwestern Fire and Marine Insurance Company, Appellant. (Two cases.)
    (Submitted January 9, 1928;
    decided January 17, 1928.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 349.)


text:
    Martha J. Smith, as Executrix of Mary J. Smith, Deceased, Appellant, v. Michael F. Loughman et al., Constituting the State Tax Commission, Respondents.
    (Submitted January 9, 1928;
    decided January 17, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 486.)


text:
    Harding Park Homes Co., Inc., Appellant, v. Eagle Indemnity Company, Respondent, Impleaded with Others.
    ■ Appeal — motion for leave to withdraw appeal granted.

    Reported below, 218 App. Div. 778.
    (Submitted January 9, 1928;
    decided January 17, 1928.)
    Motion for leave to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 5, 1926, which reversed in part an order of Special Term denying a motion to open a default and set aside a judgment.

      The motion was made for the purpose of simplifying proceedings in the court below.

      Nathan D. Shapiro for motion.

      Frank J. 0’ Neil opposed.
   Motion denied unless within ten days appellant pays all costs of appeal to this court and ten dollars costs of motion, in which case it is granted. '


text:
    Hyman Koffler, Respondent, v. Hertz Drivurself Stations, Inc., Appellant.

      Appeal — motion for permission to withdraw appeal granted.

    Reported below, 222 App. Div. 679.
    (Argued January 9, 1928;
    decided January 17, 1928.)
    Motion for leave to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 4, 1927, reversing on the facts a judgment in favor of defendant entered upon a verdict and granting a new trial.
    The motion was made on the ground that the appeal had been inadvertently taken.

      James A. Nooney and John D. 0’ Neil for motion.

      Laurence A. Steinhardt opposed.
   Motion granted upon the following conditions:

1. The defendant shall stipulate that the action shall not abate in the event of the plaintiff’s death.

2. The defendant shall pay the costs of the appeal to date and ten dollars costs of motion within ten days.

If these conditions are not complied with within ten days, the motion is denied, with ten dollars costs.


text:
    Ray D. Lillibridge, Inc., Appellant, v. Johnson Bronze Company, Respondent.

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

      IAllibridge, Inc., v. Johnson Bronze Co., 220 App. Div. 573, affirmed.
    (Argued January 9, 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 May 20,, 1927, which reversed an order of Special Term denying a motion to set aside service of the summons and complaint and granted said, motion.
    ■ Defendant is a foreign corporation having its principal office and factory in the State-where incorporated. It has no office in New York and has not qualified, to do business in this State. This action was to, recover for an alleged breach of contract. Service of the summons and complaint was made upon an alleged managing agent of defendant. The facts show that he was engaged in the business of soliciting orders for several concerns, including the defendant. He maintained his own office and on his own authority placed defendant’s name in the telephone book and on his office door followed by his name and the word “ manager.”
    The following questions were certified: “ 1. Was the defendant, at the time of the service of the summons herein, doing business within the State of New York in such a sense and in such a degree as to subject it to the jurisdiction of the courts of the State of New York? 2. Were the duties of and the authority conferred upon Edward Laterman, the defendant’s sales agent, such as to constitute him a managing agent of the defendant corporation within the meaning of section 229, subdivision 3, of the Civil Practice Act? ”

      Gilbert B. Montague, Joseph W. Goodwin and John K. Holbrook, Jr.., for appellant.

      E. Raymond Shepard and Hiram C. Todd for respondent.
   Order affirmed, with costs, on the authority of Hamlin v. Barrett & Co. (246 N. Y. 554). First question certified answered in the negative; second not answered.

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