text:
    The People of the State of New York, Appellant, v. John F. MacMasters, Respondent.

      Crimes — trading by broker against customer's ordei--judgment of conviction properly reversed.

      People v. MacMasters, 218 App. Div. 754, affirmed.
    [Argued October 17, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered November 18,1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of a violation of section 954 of the Penal Law (trading by brokers against customers’ orders) and directed a dismissal of the indictment on authority of People v. Ruskay (243 N. Y. 58).

      Joab H. Banton, District Attorney, for appellant.

      Jacob H. Gilbert, Loring M. Black and Edward A. Robertson for respondent.
   Judgment affirmed; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v. William H. Kehoe, Appellant.

      Crimes — conspiracy ■ — ■ constitutional law — validity of regulations of board of health of city of New York regulating sources of supply of cream — conspiracy to suppress and prevent prosecutions for violations of such regulations — judgment of conviction affirmed.

      Peoples. Kehoe, 220 App. Div. 826, affirmed.
    (Argued October 17, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Court of General Sessions of the county of New York rendered upon a verdict convicting the defendant of the crime of conspiracy in violation of section 580 of the Penal Law. The indictment charged that defendant, with others, conspired “ to commit an act injurious to the public health, for the perversion and obstruction of justice and of the due administration of the law,” in that they agreed and conspired to permit the bringing into and the possession for sale for human consumption in the city of New York, of cream from unapproved sources of supply, and to suppress and prevent lawful prosecution and punishment for violation of the Sanitary Code and the regulations of the board of health.

      M. Michael Edelstein for appellant.

      Joab H. Banton, District Attorney (Ferdinand Pecora and Felix C. Benvenga of counsel), for respondent.
   Judgment affirmed. Held (1) that the rule or regulation 5 of the board of health of the city of New York was lawfully adopted and is a constitutional and valid ordinance; (2) that even if said rule or regulation were invalid or unconstitutional the defendant was guilty of a criminal conspiracy in agreeing to suppress and prevent prosecutions for a violation thereof.

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


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    Belle Ayre Conservation Company, Appellant, v. The State of New York, Respondent.

      Title — real property — title to lands appropriated by State for park purposes at time of appropriation.

      Belle Ayre Conservation Co. v. State of New York, 214 App. Div-127, affirmed.
    (Submitted October 18, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered September 29, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment of the Court of Claims in favor of plaintiff entered upon the report of a referee and directing a dismissal of the claim. The State appropriated certain lots of land in Ulster county for park purposes under the provisions of chapter 451 of the Laws of 1916 and of chapter 146 of the Laws of 1917. The question was whether title to said lots at the time of their appropriation was in the claimant or in the State.

      Lewis E. Carr and J. Sheldon Frost for appellant.

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

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


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    Edward W. Coon, Respondent, v. National Fire Insurance Company of Hartford, Appellant.

      Insurance (fire) — appraisal — fraud —action to set aside appraisal of loss by fire on ground of fraud and to recover actual loss.

      Coon v. National Fire Ins. Co., 218 App. Div. 812, affirmed.
    (Argued October 18, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 17, 1926, 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 set aside an award made by appraisers under a New York standard fire insurance policy of fire insurance upon the grounds of fraud and misrepresentations in the appointment of the appraisers, that the appraisal was improperly conducted and the award inadequate and to recover plaintiff’s alleged loss by fire.

      Charles B. Sullivan for appellant.

      Delos M. Cosgrove, W. A. Porter and Loren E. Harter for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Lortex Company, Respondent, v. Raphael Nabler et al., Copartners under the Name of Nabler & Stelzer, Appellants, Impleaded with Others.

      Contract — sale — action for breach of contract to deliver goods.

      Lortex Co. v. Nadler, 218 App. Div. 820, affirmed.
    (Submitted October 18, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1926, unanimously affirming a judgment in favor of plaintiff and against defendants-appellants, entered upon a decision of the court at a Trial Term without a jury. The action was to recover for an alleged breach of contract to deliver goods sold by defendant-appellants to the plaintiffs.

      Benjamin E. Messier for appellants.

      William R. Dorman and Thomas J. Mooney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Carbozo, Ch. J., Pounb, Crane, .Anbrews, Lehman, Kellogg and O’Brien, JJ.


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    The People of the State of New York, Respondent, v. Louis Mason, Appellant.

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

    (Argued October 18, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Supreme Court rendered April 18, 1927, at a Trial Term for the county of Erie, upon a verdict convicting the defendant of the crime of murder in the first degree.

      John V. Maloney, Michael A. Crage and Robert J. Summers for appellant.

      Guy B. Moore, District Attorney (Walter F. Hofheins of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


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    The People of the State of New York, Respondent, v. Thomas E. Fogarty and Charles C. Silverber Appellants.

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

      People v. Salisbury, 220 App. Div. 798, affirmed.
    (Argued October 19, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 13, 1927, which affirmed a judgment, rendered at a Trial Term for the county of Erie upon a verdict convicting the defendants of the crime of burglary in the first degree.

      James O. Moore, Edward C. Schlenker, Charles D. Newton, Harry Lipsitz and John S. Knibloe for appellants.

      Guy B. Moore, District Attorney (Walter F. Hofheins of counsel), for respondent.
   Judgment affirmed on the ground that the record presents no exception arguable in this court.

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


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    Henry V. F. Price, Respondent, v. Edward E. Androvette, Appellant.

      Contract — master and servant — equity — action to set aside mutual release and promissory note and to recover on contract of employment.

      Price v. Androvette, 220 App. Div. 704, affirmed.
    (Argued October 19, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 13,1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought by the plaintiff, an employee, against the defendant, his employer, to set aside a mutual release signed by the plaintiff and defendant, and to have surrendered and canceled a promissory note for an amount stated in said release to be due, and for judgment in favor of the plaintiff and against the defendant in an amount to which plaintiff claimed he was entitled as a result of a contract of employment between the plaintiff and the defendant.

      Frank Harvey Field and Edo E. Mercelis for appellant.

      George Tilzer and Emmanuel Lewin for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    The People of the State of New York, Respondent, v. John Pietras, Appellant.

      Crimes — manslaughter — criminal negligence — operation of automobile in culpably negligent manner —judgment of conviction reversed.

      People v. Pietras, 219 App. Div. 853, reversed.
    (Argued October 19, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 9, 1927, which affirmed a judgment of the Erie County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the second degree. The indictment, under subdivision 3 of section 1052 of the Penal Law, charged defendant with causing the death of a person through operation of an' automobile in a culpably negligent manner.

      William J. Bullion for appellant.

      Guy B. Moore, District Attorney (John J. Kane of counsel), for respondent.
   Judgment of Appellate Division and that of County Court reversed and new trial ordered on the authority of People v. Angelo (246 N. Y. 451).

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


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    Martin F. Huberth et al., Respondents, v. Marcon Realty Co., Inc., Appellant, Impleaded with Another.

      Principal and agent — commissions — action to recover broker’s commissions for procuring lessee of real property and purchaser of furnishings.

      Huberth v. Reich, 219 App. Div. 743, affirmed.
    (Argued October 19, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 8, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover broker’s commission for the procuring of a lease of the Hotel Ponchartrain, 308-310 West Fifty-eighth street, New York city, from the defendant corporation, for a term of twenty-one years, at a rental of $21,500 per year for the first five years, $22,500 per year for the second five years, and $25,000 per year for the remaining eleven years, besides a sale of the furnishings of the hotel for $25,000.

      Harry A. Gordon and Irving Gordon for appellant.

      Harold R. Zeamans for respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Lydia M. Webster, Individually and as Executrix of Mary A. Webster, Deceased, Respondent, v. Charles J. Webster et al., Defendants, Edward J. Webster et al., Respondents and Henrietta S. Webster, et al., Appellants.

      Real property — partition — title — construction of codicil to will devising real property.

      Webster v. Webster, 214 App. Div. 806, affirmed.
    (Argued October 20, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered July 1, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, modifying and affirming as modified an interlocutory judgment of sale in partition entered upon a decision of the court on trial at Special Term. (See 243 N. Y. 520.) The question was as to the title to real property situated at the northeast corner of Clinton and De Graw streets in the city of Brooklyn and required construction of the second codicil to the will of Michael Webster, deceased.

      James M. Gorman and Solomon Pearlman for appellants.

      Joseph W. Gott for plaintiff, respondent.

      W. T. Snider and Henry W. Chadeayne for defendants, respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Mark K. Irons, Appellant, v. William Steiner Sons & Co., Inc., et al., Respondents.

      Negligence — drain pipe conveying acid waste — duty to repair leak.

      Irons v. Steiner Sons & Co., Inc., 216 App. Div. 843, affirmed.
    (Submitted October 20, 1927;
    decided November 22, 1927.)
    Appeal from two judgments of the Appellate Division of the Supreme Court, one entered July 8, 1926, and the other July 20, 1926, each affirming a judgment in favor of one of the defendants herein and against the 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’s claim for damages was based upon the contention that his injuries were caused by the leakage of acid liquid waste from a drain conveying such waste from the place of business of one of the defendants which occupied as tenant a portion of the floor of a building of which the other defendant was landlord down through the floor below where plaintiff worked as a printer for his employer, a corporation which occupied the lower floor as tenant. It was contended that the trial court incorrectly charged “ that there was no duty on either defendant to go in there and repair the pipe until they had some notice of this particular leak.”

      Everett F. Warrington for appellant.

      Arthur Butler Graham and Henry W. Reynolds for William Steiner Sons & Co., Inc., Respondent.

      Walter G. Evans and Grattan B. Shults for Oscar Bach Studios, Inc., respondent.
   Judgments affirmed, with costs; no opinion.

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


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    Otto Kunze, an Infant, by Fred Kunze, His Guardian ad Litem, Respondent, v. The Pictorial Review Company, Appellant.

      Negligence — motor vehicles — boy seven years of age running in street struck by automobile approaching from behind.

      Kunze v. Pictorial Review Co., 218 App. Div. 829, affirmed.
    (Argued October 20, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 9, 1927, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, a boy seven years old, while running diagonally across Forty-first street near Tenth avenue in the city of New York was struck by defendant’s automobile approaching from his rear. There was evidence that defendant’s chauffeur had a clear view of the boy for at least one hundred feet but made no attempt to check or stop his car.

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

      Otto D. Parker for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    In the Matter of the Estate of Albert Simonson, Deceased. Nettie I. Simonson et al., as Executors, Appellants; State Tax Commission, Respondent.

      Tax — transfer tax — decedent’s estate —■ constitutional law — life estate with contingent remainder — tax properly levied on value of life interest and also on entire corpus of trust estate to be paid to and held by Tax Commission — validity of chapter 144 of Laws of 1925.

      Matter of Simonson, 219 App. Div. 656, affirmed.
    (Argued October 20, 1927;
    decided November 22, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1927, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax upon the estate of Albert Simonson, deceased. The constitutionality and interpretation of amendments to section 230 of the Tax Law made by chapter 144 of the Laws of 1925 were involved. Decedent left part of his estate in trust for the benefit of two daughters with contingent remainder. An inheritance tax was levied upon the value of the life interests as fixed by mortuary tables and in addition a tax based on the entire corpus of the trust estate was levied and required to be paid on the remainder to be held by the State Tax Commission subject to the provisions of section 241, as amended, the income to be paid to the trustee during the continuance of the trust.

      Abraham L. Gutman and William Victor Goldberg for appellants.

      Seth T. Cole and Charles A. Curtin for respondent.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Estate of Myer Hecht, Deceased. Leo Salomon et al., as Executors, Appellants; State Tax Commission, Respondent.

      Tax — transfer tax — constitutional law — life estate with contingent remainder — tax properly levied on value of life interest and also on entire corpus of trust estate to be paid to and held by Tax Commission — validity of chapter 144 of Laws of 1925.

      Matter of Hecht, 219 App. Div. 656, affirmed. '
    (Argued October 20, 1927;
    decided November 22, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1927, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax upon the estate of Myer Hecht, deceased. The constitutionality and interpretation of amendments to section 230 of the Tax Law made by chapter 144 of the Laws of 1925 were involved. Decedent left part of his estate in trust for the benefit of his widow with contingent remainder. An inheritance tax was levied upon the value of the life interest as fixed by mortuary tables and in addition a tax based on the entire corpus of the trust estate was levied and required to be paid on the remainder, to be held by the State Tax Commission subject to the provisions of section 241, as amended, the income to be paid to the trustee during the continuance of the trust.

      Charles Angulo and Edmund O. Austin for appellants.

      Henry C. Eldert, Russell L. Bradford and James D. Ouchterloney for Farmers’ Loan and Trust Company et al., as executors of Florence Fish, deceased, amici curiæ.

      Lewis M. Isaacs for Bankers Trust Company et al., as executors and trustees under the will of Mary B. Fareira, deceased, amici curiæ.

      Seth T. Cole and Charles A. Curtin for respondent.
   Order affirmed, with costs; no opinion.

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


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    Percy P. Cowans et al., Respondents, v. Ticonderoga Pulp and Paper Company, Appellant.

      Judgment — comity — conclusiveness of foreign judgment.

      Cowans v. Ticonderoga P. & P. Co., 219 App. Div. 120, affirmed.
    (Argued October 20, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered February 3, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of Special Term denying a motion by plaintiffs for judgment on the pleadings and granted said motion. The action was brought to recover on a money judgment recovered by plaintiffs against defendant in the Province of Quebec. Defendant contended that the judgment was only prima facie evidence against which any defense which could have been used at the trial in the foreign court was available to defeat recovery here. The Appellate Division held that the foreign judgment was conclusive.

      William C. Cannon, John W. Davis, William R. Carlisle and Frank B. Wickes for appellant.

      Samuel Seabury and Thomas B. Cotter for respondents.
   Judgment. affirmed, with costs, on opinion of Van Kirk, J., below.

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


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    Samuel W. Howitt, as Administrator of the Estate of Rose Howitt, Deceased, Appellant, v. Edward G. Hopkins, Defendant, and Burroughs Adding Machine Company, Respondent.

      Master and servant — negligence — motor vehicles ■ — • child hilled by automobile owned and operated by salesman in employ of agent of defendant on way to demonstrate or sell product of defendant — existence of relation of master and servant.

      Howitt v. Hopkins, 219 App. Div. 653, affirmed.
    (Argued October 21, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered April 15, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing as to the defendant-respondent herein a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Intestate was struck and killed by an automobile owned and operated by a salesman in the employ of an agent of defendant-respondent. At the time of the accident the salesman was on his way to demonstrate or sell a machine manufactured by defendant-respondent. The Appellate Division held that the relation of master and servant did not exist between the salesman and defendant-respondent.

      Walter A. Fullerton for appellant.

      John F. Lucey for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Elizabeth Norbury, Respondent, v. City of Buffalo, Appellant. Charles Norbury, Respondent, v. City of Buffalo, Appellant.

      Negligence — streets — municipal corporations — Buffalo (city of) — injury from fall caused by stepping in hole in sidewalk.

      Norbury v. City of Buffalo, 217 App. Div. 785, 786, affirmed.
    (Argued October 21, 1927;
    decided November 22, 1927.)
    Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July-10, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The first action was brought to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second, by her husband, to recover for expense and loss of services occasioned by the injury. Plaintiff Elizabeth Norbury testified that while walking easterly on the north side of Elk street near Alabama street in the city of Buffalo, she stepped into a hole in the sidewalk and falling, received the injuries complained of.

      Frederic C. Rupp, Corporation Counsel (Forbes F. Dougherty of counsel), for appellant.

      Irving W. Cole and John J. Brown for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    William A. Setzkorn, Respondent, v. City of Buffalo, Appellant, Impleaded with Another.

      Negligence — automobile damaged by collision with runaway team.

      Setzkorn v. City of Buffalo, 219 App. Div. 416, affirmed.
    (Argued October 21, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 5, 1927, unanimously affirming a judgment of Special Term which affirmed a judgment of the City Court of Buffalo in favor of plaintiff. The action was to recover for damage to plaintiff’s automobile arising from a collision with a team of horses attached to a wagon owned and operated by defendant-appellant. The automobile was parked near the curb on the south side of North street, seventy-five feet west of Irving place. The team ran away and dashed into the automobile.

      S. H. Millener for appellant.

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

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


text:
    Rebecca Berg, an Infant, by Clara Berg, Her Guardian ad Litem, Respondent, v. Raphael Prager et al., Appellants.

      Negligence — tenement houses — permitting debris from fire to remain on stairs — tenant injured from slipping and falling downstairs.

      Berg v. Prager, 219 App. Div. 783, affirmed.
    (Argued October 21, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first- judicial department, entered March 4, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, a girl fourteen years of age, while walking downstairs in defendant’s tenement, where she resided, slipped at the top of the steps leading from the street level and, falling, sustained the injuries complained of. There was evidence that as the result of a fire that had occurred in the building six days prior to the accident, the landing and stairs were covered with debris, charred wood, wet pieces of wall paper and water.

      Theodore H. Lord and Fred H. Rees for appellants.

      Russell H. Kittel and Paul M. Abrahams for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Gertrude E. Vail, as Executrix of Mary E. Auwell, Deceased, Appellant, v. Cecile J. Widner, Respondent, Impleaded with Another.

      Fraud — false representations — trust — action by mother to recover money deposited in name of her daughter in trust for herself.

      Vail v. Widner, 218 App. Div. 859, affirmed.
    (Submitted October 21, 1927;
    decided November 22, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1926, reversing upon the law and the facts a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial. The action was brought by testatrix in her lifetime to recover money which she had deposited in a savings bank in the name of her daughter in trust for herself. The complaint alleged that testatrix was induced to make such deposit by fraudulent misrepresentations of the daughter.

      Hugo Hirsh, Emanuel Neuman, Benjamin Reass and Sylvia Usefof for appellant.

      Sol. S. Ostertag for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


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    George W. Chambers, Appellant and Respondent, v. The State of New York, Respondent and Appellant.

      State — contract — claim for extra work — improper basis of award.

      Chambers v. State of New York, 220 App. Div. 797, affirmed.
    (Argued October 24, 1927;
    decided November 22, 1927.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 18, 1927, modifying and affirming as modified a judgment in favor of claimant entered upon an award of the Court of Claims. The claim was for alleged extra work required to be performed in connection with a contract for public work. The Appellate Division held that claimant was entitled to recover on the basis of the contract prices instead of the fair and reasonable value of the work as awarded by the Court of Claims.

      James E. Cuff for claimant, appellant and respondent.

      Albert Ottinger, Attorney-General (James Gibson of counsel), for respondent and appellant.
   Judgment affirmed, without costs; no opinion.

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


text:
    Walter Pierson, Appellant, v. Rellstab Brothers, Inc., Respondent.

      Real property — covenants — action to enjoin conversion of building into apartment house — complaint properly dismissed.

      Pierson v. Rellstab Bros., Inc., 219 App. Div. 552, affirmed.
    (Argued October 24, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 25, 1927, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The action was .brought to enjoin the alteration of a building in the city of New Rochelle into an apartment house on the ground that such use of the premises was violative of a restrictive covenant. The restriction prohibited the erection on said lot of any building other than one house to be used only as a dwelling except the usual outhouses. The trial court held that defendant’s altered building did not violate this covenant,

      John H. Jackson and William A. Moore for appellant.

      Frederick P. Close, George L. Kettner and John R. Bushong for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Harry L. Allen, as Trustee in Bankruptcy of the American Railway Brotherhood Association, Inc., Respondent, v. D. Matthew Ryan, Appellant.

      Corporations -— stocks and stockholders ■ — • action by trustee of bankrupt corporation to recover unpaid subscription for stock.

      Allen v. Ryan, 219 App. Div. 634, affirmed.
    (Argued October 24, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered March 8, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury and directing judgment in favor of plaintiff. The action was to recover the balance of an unpaid subscription for stock in the American Railway Brotherhood Association, Inc. Defendant had subscribed for twenty shares and paid ten per cent of the par value of the stock. He contended that there could be no recovery in this action because the corporation was bankrupt and a stock certificate could not be issued and if issued it would be worthless.

      James O. Sebring for appellant.

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

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


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    Rochester Yacht Club Company, Appellant, v. Rochester Boat Works, Inc., et al., Respondents.

      Real property ■— covenants — action to restrain erection of boat works in alleged violation of restrictive covenants.

      Rochester Yacht Club Co. v. Rochester Boat Works, Inc., 219 App. Div. 761, affirmed.
    (Argued October 25, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 13, 1927, unanimously affirming a judgment in favor of defendants Rochester Boat Works, Inc., and William J. Gucker, entered upon a dismissal of the complaint as to them by the court at an Equity Term, which court also granted a permanent injunction restraining the defendant Summerville Terraces, Inc., from conveying lots in its tract, that do not contain restrictions. The action was to restrain the erection or maintenance of a boat works or other structure to be used for commercial purposes upon premises contracted to be sold by defendant Summerville Terraces, Inc., to defendant Gucker.

      Eugene Van Voorhis and George V. Fleckenstein for appellant.

      George J. Skivington for Rochester Boat Works, Inc., respondent.

      John W. Remington for Summerville Terraces, Inc., respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    May Abrahams, Respondent, v. Max Abrahams, Appellant.

      Fraud —false representations — action to recover damages from marriage with son of defendant induced by false representations.

      Abrahams v. Abrahams, 220 App. Div. 756, affirmed.
    (Submitted October 21, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover damages alleged to have been sustained by plaintiff through her marriage with defendant’s son alleged to have been induced by the false and fraudulent representations of the defendant.

      Charles C. Peters for appellant.

      Neilson Olcott for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George P. Langford, Appellant, v. Levi A. Fessenden et al., Respondents.

      Debtor and creditor — fraudulent conveyance — action to set aside conveyance by husband to wife as in fraud of creditors — insufficiency of evidence of fraud.

      Langford v. Fessenden, 220 App. Div. 258, affirmed.
    (Argued October 25, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered June 7, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was brought to set aside a conveyance by defendant Levi A. Fessenden to his wife of an interest in certain parcels of real property upon the ground that the conveyance was made for the purpose of defrauding plaintiff, a judgment creditor, and hindering and delaying collection of his judgment. The Appellate Division held that undisputed evidence showed the conveyance was made for a good and sufficient consideration and that the conclusion of the trial court that it was made for the purpose of hindering and delaying creditors was unsupported by the evidence.

      Robert B. Knowles and Leonard L. Barrett for appellant.

      J. Ard Haughwout, Arthur G. H. Power, Jr., and Leverett J. Luce 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, Appellant, v. Eugene Santini, Respondent.

      Crimes — manslaughter in second degree — erroneous comment in charge as to punishment that might or might not he inflicted should defendant he found guilty.

      People v. Santini, 221 App. Div. 139, affirmed.
    (Argued October 25, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1927, which reversed a judgment of the Bronx County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the second degree and granted a new trial. The Appellate Division reversed on the ground that the trial court erred in commenting in his charge upon the punishment that might or might not be inflicted should defendant be found guilty.

      John E. McGeehan, District Attorney (George B. De Luca, Herman J. Fliederblum and Albert H. Henderson of counsel), for appellant.

      Louis Susman and Samuel Goldstein for respondent.
   Judgment affirmed; no opinion.

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


text:
    Morris Rehmer, Respondent, v. Peter P. Cappel, Doing Business as New York Jewelers Exchange, Appellant.

      Bailment — action to recover for loss of jewelry placed in compartment of safe maintained by defendant.

      Rehmer v. Cappel, 219 App. Div. 814, affirmed.
    (Submitted October 26, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, - entered March 19, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for loss of property of plaintiff alleged to ha.ve been left in defendant’s possession. Defendant rented out space in his building to individual jewelers and maintained a large safe with individual boxes having separate combination locks, which boxes were rented to his tenants. Plaintiff, a tenant, deposited jewelry in one of these boxes and claimed that when he opened it his property had disappeared, having been stolen as a result of defendant’s negligence.

      W. N. Seligsberg, Clarence M. Lewis and Donald Marks for appellant.

      Maxwell Slade and David H. Slade for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lemuel Caro, Respondent, v. Progressive Grocery Stores, Inc., Appellant.

      Negligence — motor vehicles — right of way — injury from collision between ambulance and motor truck.

      Caro v. Progressive Grocery Stores, Inc., 220 App. Div. 731, affirmed.
    (Argued October 26, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 19, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by-plaintiff through the negligence of defendant. Plaintiff, an interne in the New Rochelle Hospital, was injured as the result of a collision between the ambulance on which he was riding and a motor truck belonging to defendant.

      George F. Hickey and Alfred W. Andrews. for appellant.

      Charles D. Lewis, John Ambrose Goodwin and Thomas J. O’ Neill for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert S. Bendell, Appellant, v. Lew Fisher, Respondent.

      Principal and agent — commissions — action by real estate broker to recover commissions from purchaser of property —failure of proof that plaintiff had produced person able and wiUing to sell.

      Bendell v. Fisher, 219 App. Div. 498, affirmed.
    (Argued October 26, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered March 9, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover a broker’s commission on the purchase of real property. The Appellate Division held that the evidence showed that plaintiff had failed to produce any person able and willing to sell the property involved.

      Coplin Yaras for appellant.

      Spencer B. Eddy and Wyman S. Bascom for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret Lescher, as Administratrix of the Estate of Charles J. Nell, Respondent, v. James L. Harrison et al., Copartners under the Firm Name of Harrison & Bernhardt, Appellants.

      Negligence — motor vehicles — pedestrian struck by motor truck at street crossing.

      Lescher v. Harrison, 219 App. Div. 745, affirmed.
    (Argued October 26, 1927;
    decided November 22, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 4, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate while crossing Varick avenue at the intersection of Stagg street in the borough of Brooklyn was struck by a motor truck belonging to defendants and being operated in their business by their employee and received injuries resulting in his death.

      Andrew Eckel and Robert M. McCormick for appellants.

      Lester Hand Jayne and Alexander Dolins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Merchants and Shippers Insurance Company, Appellant, v. St. Paul Fire and Marine Insurance Company, Respondent.

      Insurance (marine) — action to recover on contract of reinsurance — defenses of failure to disclose material facts and of false representations.

      Merchants & Shippers Ins. Co. v. St. Paul F. & M. Ins., Co., 219 App. Div. 636, affirmed.
    (Argued October 26, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered March 14, 1927, upon an order of- the Appellate Division of the SupremCourt in the first judicial department, reversing a judge ment in favor of plaintiff entered upon a verdict directed by the court and directing judgment in favor of defendant. The action was to recover on a contract of marine reinsurance, “ warranted free from particular averages unless the vessel or craft be stranded, sunk or burnt.” The defenses were that the plaintiff had failed to disclose to defendant the nature of the goods, or the fact that the vessel had sailed on December 13, 1919, the application for reinsurance not having been made until January 2, 1920; that there had been no disclosure of the presence in the original insurance of a twenty-one-day prolongation of voyage clause, which was an unusual clause and not customarily annexed to policies of marine insurance; that the defendant had not known of the foregoing facts at the time it approved the terms of the compromise between the insured and the plaintiff, but that the plaintiff had made false representations to the defendant that the ship had stranded and had been on fire, and had thereby led defendant to believe that the warranty contained in the contract of reinsurance “ free from particular average unless the vessel or craft be stranded, sunk or burnt * * * ” had been opened.

      William F. Unger and Stanley H. Fuld for appellant.

      J. M. Richardson Lyeth and Rush Taggart for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Hyman Lefkowitz, an Infant, by David Lefkowitz, His Guardian ad Litem, Respondent, John T. Whalen, Inc., Appellant. David Lefkowitz, Respondent, v. John T. Whalen, Inc., Appellant.

      Negligence — motor vehicles — pedestrian struck by motor truck while crossing street.

      Lefkowitz v. Whalen, Inc. (2 cases), 220 App. Div. 759, affirmed.
    (Submitted October 27, 1927;
    decided November 22, 1927.)
    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 7, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The first action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second to recover for expense and loss of service occasioned the plaintiff by reason of such injury to his minor son. The boy, while crossing One Hundred and Sixty-eighth street at Fulton avenue in the borough of The Bronx was struck by defendant’s motor truck and received the injuries complained of.

      George F. Hickey and Alfred W. Andrews for appellant.

      Louis S. Schwartz for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Samuel Reiter and Louis Reiter, Appellants.

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

      People v. Reiter, 221 App. Div. 751, affirmed.
    (Argued October 28, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1927, which affirmed a judgment of the court at a Trial Term for the county of Kings, rendered upon a verdict convicting the defendants of the crime of grand larceny in the first degree.

      George Gordon Battle for appellants.

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

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


text:
    Charles J. Haskell, Respondent, v. Nathan J. Miller et al., Copartners under the Firm Name of Miller & Company, Appellants.

      Principal and agent — stockbrokers — release — action to recover margins and profits from transactions in cotton — words of general release in instrument referring to stock account not applicable to claim arising on cotton account.

      Haskell v. Miller, 221 App. Div. 48, affirmed.
    ' (Argued October 28, 1927;
    decided November 22, 1927.)
    Appeal from a judgment, entered July 7, 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 judgment in favor of plaintiff. The action was to recover margins and profits in connection with transactions in cotton for future delivery had by plaintiff’s assignor with defendants. The answer set up a general release. The Appellate Division held that the release was limited by its recitals to a stock account which the assignor also had with defendants and that, therefore, the general words of release therein were applicable only to claims arising out of that account, there being nothing on the face of the instrument indicating that matters other than those specifically referred to were intended to be discharged.

      Osmond K. Fraenkel and Louis Werner for appellants.

      H. Barton Farr and Harold C. Havighurst for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret A. Decker, as Administratrix of the Estate of Seeley Decker, Deceased, Respondent, v. The Lehigh and Hudson River Railway Company, Appellant.

      Negligence — master and servant — railroads — brakeman killed by coming in contact with overhead bridge.

      Decker v. Lehigh & II. R. Ry. Co., 218 App. Div. 839, affirmed.
    (Argued October 28, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 22, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action, under the Federal Employers’ Liability Act, to recover for the death of plaintiff’s intestate, alleged to have been occasioned through the negligence of defendant, his employer. The complaint alleged that intestate, a railroad brakeman, was killed by coming in contact with an overhead bridge at Belvidere, New Jersey, while engaged in his duties on a train proceeding from Phillipsburg, New Jersey, to Warwick, New York.

      John Bright and Clifford S. Beattie for appellant.

      Ivan A. Gardner, Abram F. Servin and Charles E. Taylor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Victor Melnechuck, Individually and on Behalf of Others, et al., Respondents, v. Timothy Chomkowitz et al., as President and Officers of the Russian Greek Orthodox National Church of the Holy Trinity, Appellants.

      Associations —- religious associations — injunction — action to enjoin exclusion of plaintiff and others from privileges of membership.

      Melnechuck v. Chomkowitz, 219 App. Div. 807, affirmed.
    (Argued October 28, 1927;
    decided November 22, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1927, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. The action was to enjoin the defendants from denying to plaintiff and others, who were permitted to intervene, the privileges of membership in the Russian Greek Orthodox National Church of the Holy Trinity, an unincorporated association, from which it was alleged, they had been unlawfully excluded.

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

      Herman Joseph, Charles J. Katzenstein, Joseph Fischer and Thomas H. Mahony for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Flatbush Water Works Company, Respondent, v. The City of New York et al., Appellants, Impleaded with Another.

      Appeal — unanimous affirmance — appeal without permission dismissed.

      Flatbush Water Works Co. v. City of New York, 220 App. Div. 784, appeal dismissed.
    (Argued November 21, 1927;
    decided November 29, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 6, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    The motion was made upon the ground that leave to appeal had not been granted.

      Thomas W. Maires for motion.

      George P. Nicholson, Corporation Counsel (J. Joseph Lilly of counsel), opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Appellant, v. Marie Williams, Defendant, and Henry Karmel, Respondent.
    AppeoZ —• order of Appellate Division reversing order denying motion to vacate forfeiture of bail and granting motion — motion to dismiss appeal therefrom denied.

    Reported below, 221 App. Div. 776.
    (Argued November 21, 1927;
    decided November 29, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 24,1927, which reversed an order of the Orange County Court denying a motion to vacate an order forfeiting an undertaking of bail and granted said motion.
    The motion was made upon the grounds that the order appealed from was made in a criminal action and, if appealable, the appeal therefrom should have been taken within thirty days; and that the order appealed from is not a final order and that permission to appeal had not been obtained.

      Henry Hirschberg for motion.

      Elmer H. Lemon, District Attorney, opposed.
   Motion denied on the authority of People v. Young (92 Hun, 373; affd., 151 N. Y. 651).


text:
    Floral Park Mutual Fuel Company, Inc., et al., Respondents, v. Annie E. Fiske, Defendant, and George Maure et al., Appellants.

      Appeal — final judgment entered upon order of Appellate Division dismissing appeal — appeal therefrom to Court of Appeals dismissed.

      Floral Park M. F. Co., Inc., v. Fiske, 22U App. Div. 778, appeal dismissed.
    (Argued November 21, 1927;
    decided November 29, 1927.)
    Motion to dismiss an appeal from a judgment, entered August 3, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department which dismissed an appeal from a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term.
    The motion was made upon the ground that permission to appeal had not been granted.

      George L. Hubbell, Jr., for motion.

      Edward E. Dean opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Pasquale Caserta et al., Appellants.

      Appeal — motion to dismiss granted.

      People v. Casserta, 215 App. Div. 843, appeal dismissed.
    (Submitted November 21, 1927;
    decided November 29, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 29, 1926, which affirmed a judgment of the Queens County Court rendered upon a verdict convicting the defendants of the crimes of burglary in the third degree and grand larceny in the first degree.
    The motion was made upon the ground that defendants had failed to prosecute the appeal.

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


text:
    In the Matter of the Claim of Enid Delaney, Respondent, against Rose Gellman, Doing Business under the Name of Economy Window Cleaning Co., Respondent, and Empire State Mutual Insurance Company of New York, Appellant State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — insurance — claim by insurance carrier that policy had been canceled.

      Matter of Delaney v. Gellman, 220 App. Div. 794, affirmed.
    (Argued November 21, 1927;
    decided December 6, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 27, 1927, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. The insurance carrier contended that the policy had been canceled prior to the accident herein and, therefore, an award against it was erroneous.

      Jeremiah F. Connor for appellant.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondents.
   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 ex rel. Benny Sabatino, Respondent, v. Edgar S. Jennings, as Warden of Auburn Prison, Appellant.

      Habeas corpus — waiver ■— right to absolute discharge as directed by order in habeas corpus proceeding not waived by thereafter signing parole papers.

      People ex rel. Sabatino v. Jennings, 221 App. Div. 418, affirmed.
    (Argued November 21, 1927;
    decided December 6, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 25, 1927, which reversed an order of Special Term dismissing a writ of habeas corpus, sustained said writ and directed the discharge of the relator. The question was whether a prisoner by signing parole papers waived his right to an absolute discharge as directed by an order in habeas corpus proceedings.

      Albert Ottinger, Attorney-General (Henry C. Henderson and Edward J. Grogan, Jr., of counsel), for appellant.

      Benny Sabatino, respondent, in person.
   Order affirmed; no opinion.

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


text:
    Erie Railroad Company, Respondent, v. Buffalo and Lackawanna Traction Company et al., Appellants.

      Pleading — contract — judgment — estoppel —• action to recover on contract amount of judgment paid by plaintiff ■— defense that in former action verdict of no cause of action was rendered in favor of defendants herein.

      Erie R. R. Co. v. Buffalo & Lackawanna Traction Co., 220 App. Div. 520, affirmed.
    (Argued November 21, 1927;
    decided December 6, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 11, 1927, which affirmed an order of Special Term striking out affirmative defenses set up in the answers. The action was upon a contract by virtue of which plaintiff sought indemnity from the defendants for the amount of a judgment and interest recovered against and paid by the Erie Railroad Company in an action entitled “ George J. Brendel against Erie Railroad Company and George Bullock as Receiver of Buffalo and Lake Erie Traction Company.” The defendants in their answer in this action pleaded as a. defense hereto the judgment entered upon the verdict of the jury in the former suit wherein a verdict of no cause of action was rendered in favor of the defendant Bullock. It was contended that the said judgment entered upon the merits estops the plaintiff in this action from relitigating the questions of negligence necessarily involved and passed upon in the Brendel action. The following questions were certified:

      “ 1. Should the second answer and defense of the defendant George Bullock, as receiver of the Buffalo and Lake Erie Traction Company to plaintiff’s amended complaint be stricken from the answer on the ground that it is insufficient in law? 2. Should the second answer and defense of the defendant, Buffalo and Lackawanna Traction Company to plaintiff’s amended complaint be stricken from the answer on the ground that it is insufficient in law? ”

      Lyman M. Bass and Theodore G. Kenefick for appellants.

      John W. Ryan for respondent.
   Order affirmed, with costs; questions certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Accounting of Earl W. Scripter, as Executor of Elbert O. Forbes, Deceased, Appellant. American Surety Company, Appellant; Fort Covington Banking Company, Respondent.

      Executors and administrators — accounting — subrogation — promis-_ sory notes made by executor — payee subrogated to rights of executor to credits allowed him on his accounting.

      Matter of Forbes, 218 App. Div. 292, affirmed.
    (Submitted November 21, 1927;
    decided December 6, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 17, 1926, which modified and affirmed as modified a decree of the Franklin County Surrogate’s Court settling the accounts of the executor of Elbert 0. Forbes, deceased, and directing that the respondent herein be subrogated to the right of said executor to certain credits allowed him in his accounts, the amount of four notes made by said executor and payable to •respondent.

      Earl W. Scripter for executor, appellant.

      E. C. Lawrence for American Surety Company, appellant.

      William L. Allen for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of Rosalie Nowak, Deceased. Mary Betkowska et al., Appellants; John Nowak, as Executor, Respondent.

      Will — probate — objections to probate of will overruled.

      Matter of Nowah, 220 App. Div. 737, affirmed.
    (Submitted November 21, 1927;
    decided December 6, 1927.)
    Appeal from an.order of the Appellate Division of the Supreme Court in the second judicial department, entered April 22, 1927, which affirmed a decree of the Kings County Surrogate’s Court admitting to probate the will of Rosalie Nowak, deceased. Probate was contested on the grounds that the instrument was not the last will of the decedent; that its execution was not her free, unconstrained or voluntary act; that its execution was obtained through undue influence or fraud; that the decedent lacked testamentary capacity at the time of its execution; that it was not executed in conformity with the statute, and that it was invalid, illegal and void.

      Walter Carroll Low for appellants.

      Emmet L. Holbrook for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Union Trust Company of Rochester, Respondent, v. William W. Boardman, as Administrator of the Estate of Helen H. Olmstead, Deceased, et al., Respondents, and Dana W. Kreidler et al., Appellants, Impleaded with Others.

      Trust —judicial construction of trust agreement — after-born children — power of court to direct reformation of trust agreement after death of donor.

      Union Trust Co. v. Boardman, 215 App. Div. 73, affirmed.
    (Argued November 22, 1927;
    decided December 6, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 24, 1926, modifying and affirming as modified a judgment entered upon a decision of the court on trial at Special Term in an action brought by a trustee for approval of its accounts and to obtain a judicial construction of portions of a trust agreement. The questions were: “1. Should after-born children share in a distribution of the remainder? 2. Whether reformation of the trust agreement might be directed, after the donor’s death on the theory that his intended plan of distribution was defeated by an alleged mistake in computation? ”

      Fred A. Robbins and Clyde E. Shults for Dana W. Kreidler et al., appellants.

      Leonard B. Bacon for Marie E. Healy, appellant.

      Andrew R. Sutherland for plaintiff-respondent.

      Thomas R. Wheeler, Robert Pratt, H, V. Pratt, Fritz Fernow and Thomas F. Fanning for defendants-respondents.
   Judgment affirmed, with costs payable out of the trust fund; no opinion.

Concur: Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ. Dissent: Cardozo, Ch. J., on appeal by defendants Kreidler.


text:
    Joseph Lo Tufo, Respondent, v. Valentine Bangert, Appellant.

      Negligence — motor vehicles — evidence — action to recover, for personal injuries sustained in collision — improper exclusion of evidence of statements made by defendant after accident.

      Lo Tufo v, Bangert, 219 App. Div. 831, affirmed.
    (Submitted November 22, 1927;
    decided December 6, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 11, 1927, reversing a judgment in favor of defendant entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in the operation, management and control of his automobile and by reason of the fact that the defendant operated it in a negligent, reckless and careless manner, thereby colliding with a car in which plaintiff was riding and causing the injuries complained of. The Appellate Division reversed on the ground of error in the exclusion of evidence of statements made by the defendant immediately after the accident.

      Bernard J. Vincent for appellant.

      Michael W. Casey for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


author: Per Curiam.

text:
    Ernest M. Chapin, Appellant, v. George E. Learnard, Respondent.
    (Submitted November 28, 1927;
    decided December 6, 1927.)
    Motion for reargument. (See 246 N. Y. 158.)
   Per Curiam.

Upon this motion for a reargument no question is raised that we have not considered upon the original argument and we adhere to the decision then made. The plaintiff is entitled to recover as compensation for services rendered a sum measured by one-half the net profits made upon a sale of the stock of the Coxe Traveling Grate Company.” The defendant has “ sold ” the stock. The purchase price upon the sale ” was not to be paid in cash but in securities of another corporation. The contract of sale was made in January, 1914. At that time the defendant was not in possession of any certificates of stock of the Coxe Traveling Grate Company. He received stock from time to time in installments as he made the stipulated payments upon a subscription agreement. As the defendant received stock of the Coxe Traveling Grate Company he delivered to the purchaser the stock which he had agreed to sell and he received in exchange the securities which represented the proportional amount of the purchase price. Until the subscription agreement was carried out and the consideration stipulated in the contract of sale for the stock was actually paid to the defendant, the “ profits ” made on the sale of the stock could not be determined. Subscription agreement and contract of sale were complete in December, 1918. At that time the defendant was under an obligation to account to the plaintiff for the “ profits ” he had “ made ” upon the “ sale.” In that month he breached his contract. Now he must account. All these matters have been adjudicated and embodied in findings of fact and conclusions of law to which no exception was taken by the plaintiff and which we have recognized must form the basis for a judgment. The only question which remained open was the extent of the “ profits ” upon the “ sale ” of the stock which the defendant had made in December, 1918, when he was under an obligation to account. We have passed on no other question.

The value of the securities received by the defendant upon the sale of his stock was greater in December, 1918, when the last parcel was received, than when earlier installment of the purchase price was received. The courts below have held that profits must be measured by the total of the values of the parcels of securities received, “ each parcel to be valued on the date it was received by defendant.” The defendant might retain or sell the securities so received in accordance with his own will. Profits made upon the sale were in fact only paper or estimated profits until the securities so received were sold. This court has held as matter of law that under the circumstances disclosed by the findings of fact the “ profits ” made must be determined by the conditions as they existed at the date of the breach and not by estimating paper profits upon each separate parcel of securities at the date it was received. At the time the defendant was under an obligation to account the defendant had sold some of the securities received earlier; he still had some in his possession. His profits then were the amount received for the securities he had sold together with the value of the securities still retained less his expenses. The majority of the court find in the record no finding of fact binding upon us which is in any wise in conflict with this conclusion and the conclusion is dictated by the findings made.

The motion for a reargument should be denied, with ten dollars costs and necessary printing disbursements.

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

Motion denied, etc.


text:
    Isadore Rosen, Respondent, v. Samuel Gray, Appellant.

      Appeal ■— motion to dismiss denied.

    Reported below, 221 App. Div. 829.
    (Submitted November 28, 1927;
    decided December 6, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 5, 1927, modifying and affirming as modified a judgment in favor of plaintiff entered upon a stipulated reduction of the amount of a verdict.
    The motion was made upon the ground that permission to appeal had not been obtained.

      Ellsworth Baker for motion.

      John D. Lyons opposed.
   Motion denied, with ten dollars costs.


text:
    Alice Keating, Respondent, v. David J. Conviser et al., Appellants.

      Libel — letter sent by de,, endant, a creditor of plaintiff, to her employer.

      Keating v. Conviser, 219 App. Div. 836, affirmed.
    (Submitted November 23, 1927;
    decided December 13, 1927.)
    Appeal from a judgment entered March 23, 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 reinstated said verdict. The action was for libel, the complaint alleging that defendant sent the following letter to her employer:
    “ Conviser’s “Uneeda

      “ 1061 Broadway, Brooklyn, N. Y.

      “ Telephone Jefferson 6200

      “March 26, 1924.
    “ No. 28817

      “ U. S. Lines,

      “ 45 Broadway,
    “ N. Y. C.:

      “ Gentlemen.— Permit us to direct your attention to a matter of importance.
    “ Miss Alice Keating of your employ purchased from us some time ago, clothing amounting to $79.50. Although agreeing to pay us $2.50 per week, to date we have received no payment on the balance of $10.00 since August 11, 1923.

      “ Frankly spealdng, the only basis upon which we extended credit to her was the fact that she was a person in your employ, from each of whom you require a certain standard of honesty.
    “ Now there are two ways open to us to enforce collection. One way is to take the debtor to Court; this involves a loss of time and additional court costs to which naturally we do not like to resort unless absolutely compelled.

      “ The other method which we prefer is to appeal to a man in authority like yourself. We honestly believe that a word from you will make her realize the unfairness of withholding payment on a just obligation.

      “ Thanking you in advance for any assistance you may give us on this matter, we are

      “ Very truly yours,
    “ P. PERLIN,

      “ Uneeda Credit Clothing Co.”
    The Appellate Division held that the communication was libelous per se, in view of a prior communication from defendants to plaintiff threatening to make trouble for her in the event she did not pay their bill.

      Benjamin Reass and Sylvia Usefof for appellants.

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

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


text:
    Louis Pellich, Respondent, v. American Yellow Taxi Operators Corporation, Appellant.

      Negligence — motor vehicles — pedestrian struck by automobile at street crossing,

      Pellich v. Am. Yellow Taxi Operators Corp., 220 App. Div. 815, affirmed.
    (Argued November 23, 1927;
    decided December 13, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while crossing Thirty-second street at its intersection with Second avenue in the city of New York was struck by one of defendant’s taxicabs and received the injuries complained of.

      Lyman A. Spalding for appellant.

      Charles R. Coulter and Harry A. Cair for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Howard T. Saperston, as Trustee in Bankruptcy of Woodward Motor Company, Inc., Respondent, v. National Bond and Investment Company, Appellant.

      Bankruptcy — debtor and creditoi preference — action by trustee in bankruptcy to recover money paid on unsecured debt by insolvent corporation.

      Saperston v. Nat. Bond & Investment Co., 219 App. Div. 761, affirmed.
    (Argued November 23, 1927;
    decided December 13, 1927.)
    Appeal from a judgment, entered January 15, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth 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 complaint alleged that on August 8, 1924, the petition in involuntary bankruptcy was filed; that the adjudication was on August 15, 1924, and plaintiff was appointed trustee on August 29, 1924; that from July 10 to July 29, 1924, the bankrupt transferred money to defendant in payment of an unsecured debt; that such transfer enabled defendant to obtain and operated as a preference, and that defendant had reasonable cause to believe that the transfer operated as a preference. The complaint also alleged that the transfer was made with intent to hinder, delay and defraud creditors and not in good faith for present fair consideration. Defendant claimed that the money paid it was in restitution of money stolen from it by the bankrupt.

      Harold E. Orr for appellant.

      Howard T. Saperston, Daniel N. 'McNaughton and Wilbur B. Grandison for respondent.
   Judgment affirmed, with costs; no opinion.

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


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

      Negligence — motor vehicles — passenger in automobile injured through overturning of car — complaint in action for injuries dismissed.

      Larsen v. Lester, 218 App. Div. 788, affirmed.
    (Argued November 23, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 20, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while a passenger in an automobile, driven by defendant’s brother, received the injuries complained of by reason of the overturning of the automobile.

      Maurice B. Gluck and Murray M. Kreindler for appellant.

      George J. Stacy and James J. Mahoney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Yetta Miller, Appellant, v. Solomon Miller, Respondent.

      Judgment — divorce — action to enforce foreign judgment of divorce for cruelty — relief limited to money judgment for unpaid alimony,

      Miller v. Miller, 219 App. Div. 61, affirmed.
    (Submitted November 23, 1927;
    decided December 13, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 31, 1926, which modified and affirmed as modified a judgment in favor of plaintiff entered upon an order of Special Term granting a motion for judgment by default. The action was to enforce a judgment of the District Court of Nevada for absolute divorce and for alimony in favor of the plaintiff and against the defendant herein. ' The Appellate Division held that the plaintiff herein, having sued on a decree of a foreign court granting divorce on the ground of cruelty, is limited under section 1172 of the Civil Practice Act to the recovery of a money judgment for the amount representing alimony for the support of herself and her children due and unpaid at the time specified in the order.

      Morris Hillquit for appellant.

      Benjamin Barondess for respondent.
   Judgment affirmed, without 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. Nicholas Devoe, Appellant.

      Crimes — reckless driving — judgment of conviction affirmed.

    (Submitted November 23, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from a judgment of the Nassau County Court entered June 18, 1927, which affirmed a judgment of the Court of Special Sessions in the town of Hempstead, convicting the defendant of a violation of section 287 of the Highway Law in that he drove an automobile along a public highway at the rate of forty-six miles an hour for more than a quarter of a mile.

      Herbert A. O’Brien for appellant.

      Elvin N. Edwards, District Attorney (Charles I. Wood and Richard H. Brown of counsel), for respondent.
   Judgment affirmed. Held that though merely driving in excess of the speed stated in Highway Law, section 287, subdivision 2, may not in and of itself constitute the crime of reckless driving under Highway Law, section 287-b, yet the evidence in this case that defendant was driving at the rate of forty-six miles an hour at the place and in the circumstances described, does supply a basis for an inference by the .trier of the facts of the commission of said offense.

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


text:
    The People of the State of New York, Respondent, v. Joseph Stein, Appellant. The People of the State of New York, Respondent, v. Benjamin Marcus, Appellant.

      Crimes — criminally receiving stolen property — judgments of conviction affirmed.

      People v. Stein, 221 App. Div. 759, affirmed.

      People v. Marcus, 220 App. Div. 697, affirmed.
    (Submitted November 28, 1927;
    decided December 13, 1927.)
    Appeal in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 3, 1927, which affirmed a judgment rendered at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of criminally receiving stolen property.

      David L. Malbin for Joseph Stein, appellant.

      Isaac Siegmeister for Benjamin Marcus, appellant.

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

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, Respondent, v. Max Spiegel, Appellant.

      Crimes — obscene printed matter — insufficiency of evidence that any written or printed matter was in possession of defendant.

      People v. Spiegel, 221 App. Dir. 236, reversed.
    (Argued November 28, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of possessing obscene printed matter in violation of section 1141 of the Penal Law.

      Leonard J. Obermeier, Oscar S. Rosner and Alvin S. Rosenson for appellant.

      Joab H. Banton, District Attorney (William B. Moore of counsel), for respondent.
   Judgment of Appellate Division and that of Court of Special Sessions reversed and information dismissed upon the ground that there is no evidence that any written or printed matter was in the possession of the defendant.

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, Respondent, v. John Kitsos et al., Appellants.

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

      People v. Kitsos, 221 App. Div. 767, affirmed.
    (Argued November 28, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 17, 1927, which affirmed a judgment of the Westchester County Court rendered upon a verdict convicting the defendants of the crime of arson in the first degree.

      Mortimer C. O’Brien for appellants.

      Arthur Rowland, District Attorney (Frank H. Coyne of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Christopher McGuire, Respondent.

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

      People v. McGuire, 221 App. Div. 776, affirmed.
    (Argued November 28, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 24, 1927, which reversed a judgment of the Orange County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the second degree and granted a new trial. Elmer H. Lemon, District Attorney, for appellant.

      Henry Hirschberg for respondent.
   Order affirmed; no opinion.

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, Respondent, v. Joseph Pianto, Appellant.

      Crimes — unlawfully carrying firearm —■ judgment of conviction affirmed.

      People v. Pianto, 220 App. Div. 333, affirmed.
    (Argued November 29, 1927;
    decided December 13, 1927.)
    Appeal, .by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 28, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of unlawfully carrying a firearm in violation of section 1897 of the Penal Law.

      Charles B. McLaughlin and Donald F. Ayres for appellant.

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

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


text:
    Peter Zapp, Appellant, v. Victoria Zapp, Respondent.

      Husband and wife — separation — insufficiency of evidence to warrant separation on ground of abandonment.

      Zapp v. Zapp, 219 App. Div. 834, affirmed.
    (Argued November 29, 1927;
    decided December 13, 1927.)
    Appeal from a judgment, entered March 30, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint in an action, husband against wife, to obtain a separation on the ground of abandonment. The Appellate Division held that the evidence was insufficient to sustain a finding that defendant abandoned plaintiff with the degree of finality necessary to entitle him to a separation.

      Philip M. Bromberg and James M. Fawcett for appellant.

      Martin C. Ansorge and Harry Hershhorn for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Olsen, Respondent, v. Fennia Realty Co., Inc., Appellant. Helen M. Olsen, an Infant, by Charles Olsen, Her Guardian ad Litem, Respondent, v. Fennia Realty Co., Inc., Appellant.

      Negligence — building — failure to guard or inclose unfinished foundation so as to prevent children playing thereon — complaint dismissed in action for injury of child— section 192 of Building Code for benefit of travelers on street.

      Olsen v. Fennia Realty Co., Inc. (2 eases), 218 App. Div. 863, 864, reversed.
    (Argued November 29, 1927;
    decided December 13, 1927.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 18, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The first action was by a father to recover for loss of services and expense arising from personal injuries of his infant daughter. The second, by the daughter, to recover for such injuries alleged to have been sustained through the negligence of defendant in leaving unguarded and uninclosed an unfinished foundation for a building in the borough of Brooklyn, so that the child, while playing thereon, fell and received the injuries complained of.

      Everett W. Bovard and Norman G. Hewitt for appellant.

      Van M. Logan for respondent.
   Judgment of Appellate Division and that of Trial Term in each case reversed and complaint dismissed, with costs in all courts, on the ground that the plaintiff was a trespasser, and section 192 of the Building Code was adopted for the protection of travelers on the highway.

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


text:
    George J. Adams et al., Appellants, v. Clarence D. Van Zandt, Individually and as Mayor of the City of Rochester, et al., Respondents.

      Rochester (city of) — municipal corporations — validity of contract for laying patented pavement in city street.

      Adams v. Van Zandt, 219 App. Div. 761, affirmed.
    (Argued November 29, 1927;
    decided December 13, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 10, 1927, unanimously affirming a judgment in favor of defendant, entered upon a dismissal of the complaint by the court on trial at an Equity Term. The action was to have declared illegal the letting of a contract for the laying of a patented pavement in a street of the city of Rochester on the ground of lack of competition in bidding on the contract.

      Eugene Raines for appellants.

      Clarence M. Platt, Corporation Counsel (George B. Draper of counsel), for the mayor et al., respondents.

      John F. Kinney for William Bailey Corporation, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Patrick La Hart, as Administrator of the Estate of Anna La Hart, Deceased, Respondent, v. The City of New York, Appellant, Impleaded with Others.

      Negligence — streets—New York city — municipal corporations — death of passer-by from being struck by falling limb of tree.

      La Hart v. City of New York, 220 App. Div. 713, affirmed.
    (Argued November 30, 1.927;
    decided December 16, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 25, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Intestate while passing along West Two Hundred and Thirty-ninth street in the city of New York was struck by a falling limb which broke from a tree on the side of the street and received injuries from which she died.

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict and J. Joseph Lilly of counsel), for appellant.

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

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


text:
    Joseph Buguero, Appellant, v. United States Shipping Board Emergency Fleet Corporation, Respondent.

      Negligence — master and, servant — seamen- — -ships and -shipping — steward on ship injured from fall on stairs —failure of proof of negligence on part of defendant.

      Buguero v. U. S. Shipping Board E. F. Corp., 218 App. Div. 553, affirmed.
    (Argued November 30,
    decided December 16, 1927.)
    Appeal from a judgment, entered February 18, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. It appeared that plaintiff, a steward on board of one of defendant’s steamships, was the last of a line of men carrying bags of soiled linen from the hold to the deck and that while mounting the stairs the man ahead turned so that the bag he was carrying struck plaintiff causing him to fall down the stairs, from which he received the injuries complained of. The Appellate Division held that no negligence was shown on part of defendant.

      James A. Gray and William S. Butler for appellant.

      John C. Donovan, William A. De Groot and Irving L. Evans for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles Aspinall, Appellant, v. The City of New York, Respondent, Impleaded with Another.

      Negligence — motor vehicles — New York city — municipal corporations — injury to plaintiff through negligent operation by city employee of automobile in which plaintiff was riding by invitation — city not liable.

      Aspinall v. City of New York, 221 App. Div. 753, affirmed.
    (Argued November 30, 1927;
    decided December 16, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 3, 1927, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of an employee of defendant city of New York, who having invited the plaintiff and another to ride in an automobile owned by the city operated it recklessly and carelessly so as to bring it in collision with another automobile, through which plaintiff received the injuries complained of. The Appellate Division held: “ In taking plaintiff to his home, the driver of respondent’s automobile was not acting in the discharge of the city’s business. The act was beyond the authority of the municipal corporation. Section 282-e of the Highway Law does not impose any liability upon the city under the proof.”

      Ralph G. Barclay and Louis Rothbard for appellant.

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

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


text:
    William M. Pack, Respondent, v. Linde Air Products Company, Appellant.

      Contract — services — action to recover for alleged wrongful discharge.

      Pack v. Linde Air Products Co., 220 App. Div. 781, affirmed.
    (Argued November 30, 1927;
    decided December 16, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 27,1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was instituted to recover damages for breach of an oral contract of employment, the complaint alleging the making of such contract on or about March 14, 1922, for the term of one year at a yearly salary payable in monthly installments, the performance of the terms thereof, two successive renewals of the hiring by implication, each for the further period of one year, and defendant’s wrongful discharge of plaintiff on August 1, 1924.

      Julian C. Harrison, De Witt V. D. Reiley, William E. Reinhardt and Ashley T. Cole for appellant.

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

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


text:
    Frank P. Di Raffaele et al., Respondents, v. Albert Gerkhardt, Appellant.

      Appeal — discretionary orders — appeal to Court of Appeals dismissed.

      Di Raffaele v. Gerkhardt, 217 App. Div. 185, 187, appeal dismissed.
    (Submitted December 1, 1927;
    decided December 16, 1927.)
    Appeal from two orders of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1926, one reversing an order of Special Term which granted a motion to set aside a settlement of an action and restored the case to the calendar and. the other reversing an order of Special Term which granted a motion to punish plaintiff for contempt.

      Maurice B. Rich for appellant.

      John B. Coppola and Betty H. Kaye for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    Frederick Van Patter, as Administrator of the Estate of Shirley Van Patter, Deceased, Respondent, v. Charles B. Towns Hospital et al., Appellants.

      Negligence — hospitals — patient being treated for drug addiction permitted to enter drug store unattended — liability of hospital for death of patient from overdose of drug purchased.

      Van Patter v. Towns Hospital, 213 App. Div. 863, affirmed.
    (Submitted December 1, 1927;
    decided December 16, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 19,1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants who conducted a private sanitarium for the treatment of persons addicted to the use of drugs and narcotics. It was alleged that on or about April 16, 1920, plaintiff’s intestate was placed in the care and charge of the defendants for treatment for drug addiction; that in the course of such treatment the drug to which she was addicted (morphine) had been withheld from her for several days; that on or about the 26th day of April, 1920, while still under the care, charge, protection and treatment df the defendants, the plaintiff’s intestate was permitted upon the street in charge of an attendant, and by such attendant permitted to enter a drug store unattended, where she purchased a drug known as “ veronal,” which she took upon her return to the hospital, thus causing her death.

      William B. Shelton, Murray G. Jenkins and William Dike Reed for appellants.

      Eugene Morgan Hawkins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Peter J. Poels et al., Copartners under the Firm Name of Poels & Brewster, Appellants, v. Charles E. Merrill et al., Copartners under the Firm Name of Merrill, Lynch & Co., Respondents.

      Fraud — action to recover for alleged fraudulent statements through which plaintiffs were induced to contract loith another to their damage.

      Poels v. Merrill, 216 App. Div. 839, affirmed.
    (Argued December 1, 1927;
    decided December 16, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 8, 1926, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The action was brought to recover damages for alleged fraudulent statements of the defendants, by means of which plaintiffs claim they were induced to enter into two contracts with a certain corporation which failed to perform to plaintiffs’ damage.

      Almet Reed Latson, Matthew Spalletta and John Kenneth Byard for appellants.

      Herman Aaron and Stanhope Foster for respondents.
   Judgment affirmed, with costs, upon the ground that there is no evidence of any false representations binding on the defendants.

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


text:
    Andrew W. Feuss, Appellant, v. J. A. Fay & Egan Company, Respondent.

      Appeal — order of Appellate Division modifying order granting motion for examination of defendant before trial — appeal without permission to Court of Appeals dismissed.

      Feuss v. Fay & Egan Co., 217 App. Div. 774, appeal dismissed.
    (Submitted December 2, 1927;
    decided December 16, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 13, 1926, modifying and affirming as modified an order of Special Term granting a motion for examination of defendant before trial.

      Frank Harvey Field and Henry Booth Moore for appellant.

      I. Vernon Weishrod and George N. Whittlesey for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Celia McCann, as Administratrix of the Estate of Mary McCann, Deceased, Respondent, v. Eighth Avenue Railroad Company et al., Appellants.

      Negligence — railroads — streets — pedestrian killed while crossing street railway tracks.

      McGann v. Eighth Ave. B. B. Co., 219 App. Div. 780, affirmed.
    (Argued December 2, 1927;
    decided December 16, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 28, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Intestate, while crossing the tracks on Central Park West at the corner of Ninety-ninth street in the borough of Manhattan, was struck by one of defendant railroad company’s cars and killed.

      William J. Curtin, Lyman A. Spalding, James A. Doherty and Michael Kirtland for appellants.

      William J. O’Shea, Jr., Edwin D. Worcester and John Godfrey Saxe for respondent.
   Judgment affirmed, with costs; no opinion.

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