author: His cock, Ch. J.

text:
    Dorothy Dalton, Appellant, v. Hamilton Hotel Operating Co., Inc., Respondent.
    Bailment — landlord and tenant — lease of apartment and independent agreement by lessor to gratuitously store trunks of lessee until she could obtain possession •— arrangement one of gratuitous independent bailment involving only obligation of slight care — proof of failure to deliver trunks when demanded establishes prima facie case of gross negligence — insufficiency of evidence to rebut presumption — exemption clause in lease immaterial — not to be assumed that exemption clause on checks was intended to relieve defendant from its own gross negligence — erroneous dismissal of complaint.
    1. Where plaintiff rented an apartment from defendant, of which she could not obtain possession for some weeks, and, having several trunks, made an arrangement with defendant under which the latter, without compensation, undertook to store the trunks until plaintiff should be entitled to possession of her apartment, the situation provided for was entirely separate and distinct from that which was covered by the lease and, consequently, the arrangement was one for gratuitous independent bailment, the obligations of which involved the exercise of slight care and could be violated only by gross negligence.
    2. Proof of failure by defendant to deliver two of the trunks to plaintiff when demanded, under the circumstances established a ■prima facie case of gross negligence against it which amounted to a breach of its obligations and called for an explanation, and the presumption is not rebutted nor the prima facie case destroyed by evidence of a system under which trunks were placed in a room under the constant watchfulness of competent and reliable employees, where there is no evidence that plaintiff’s trunks ever came within the operation of this system.
    3. Even assuming that the trunks were placed in the proper depository, the presumption arising in favor of plaintiff on failure of defendant to deliver 'her trunks or satisfactorily explain their disappearance is not answered, where there is no suggestion fWt they were stolen and the only theory under which their loss can be accounted for is that defendant without production of the appropriate cheeks delivered the trunks to some one other than the plaintiff or sent them to the wrong apartment when plaintiff called for them. Neither of such acts would be a sufficient excuse for failure to deliver, to plaintiff but would be affirmative evidence of a failure to exercise a very slight degree of care and would amount to gross negligence, if not willful misconduct.
    4. Exemption clauses in the lease and on the checks respectively are not material elements in the disposition of the case. The arrangement for storage of the trunks being an agreement outside of the lease, the provisions of the latter are not material, and, so far as concerns the exemption clause on the checks, it is not to be assumed that it was the intention of the parties that it should relieve the defendant from its own gross negligence.
    5. It was error, therefore, to hold that plaintiff did not establish a cause of action and that her complaint should be dismissed, but the Appellate Division was clearly within its rights in reversing a verdict in favor of plaintiff upon the facts because of what it may have regarded as unsatisfactory evidence in respect of the contents of the trunks and the value thereof.

      Dalton v. Hamilton Hotel Operating Co., 210 App. Div. 407, modified.
    (Argued April 5, 1926;
    decided May 14, 1926.)
    Appeal from a judgment, entered November 20, 1924, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.

      Allan Deutsch and Isidore H. Alper for appellant.
    It was error for the Appellate Division to reverse the judgment for the plaintiff and dismiss the complaint. (Canfield v. Baltimore & Ohio R. R. Co., 93 N. Y. 532; Fairfax v. N. Y. C. & H. R. R. R. Co., 67 N. Y. 11; McKillop v. Reich, 76 App. Div. 334; Rieser v. Metropolitan Express Co., 45 Misc. Rep. 632; Ouderkirk v. C. N. Bank, 119 N. Y. 263; Workingman’s Club v. Boguszewski, 161 N. Y. Supp. 382; Campe v. Weir, 28 Misc. Rep. 243; Isham v. Post, 141 N. Y. 100; Patriska v. Kronk, 57 Misc. Rep. 552; Bean v. Ford, 65 Misc. Rep. 481; First Nat. Bank v. Ocean Nat. Bank, 60 N. Y. 278.) The exemption clause in the lease does not absolve the defendant for its wrongful delivery of the plaintiff’s trunks. (Guillaume
      v. Hamburgh Am. Packet Co., 42 N. Y. 212; Security Trust Company v. Wells, Fargo & Co., 81 App. Div. 426; 178 N. Y. 620; Clarke-Lawrence Co. v. Railway Co., 63 W. Va. 423; Sands v. Amer. Ry. Exp. Co., 193 N. W. Rep. 721; Peoples State Savings Bank v. R. R. Co., 192 Mo. App. 615; Sheldon v. N. Y. C. & H. R. R. R. Co., 61 Misc. Rep. 274, 276; Lynch v. N. Y. C. & H. R. R. R. Co., 89 Misc. Rep. 472; 172 App. Div. 934; Uptegrove v. Central R. R. Co. of N. J., 16 Misc. Rep. 14.) The exemption clause in the lease is no bar to the plaintiff’s recovery for the loss of her trunks occasioned by the defendant’s gross negligence. (Wells v. Steam Navigation Co., 8 N. Y. 375; Weld v. Postal Telegraph-Cable Co., 210 N. Y. 59; First Nat. Bank of Lyons v. Ocean Nat. Bank, 60 N. Y. 278; Siegel v. Spear & Co., 234 N. Y. 479; Pattison v. Syracuse Nat. Bank, 80 N. Y. 82; Will v. Postal Telegraph-Cable Co., 3 App. Div. 22; Pearsall v. Western Union Telegraph Co., 124 N. Y. 256; Weld v. Postal Telegraph-Cable Co., 199 N. Y. 89; Heuman v. Powers Co., 226 N. Y. 205.) The release-from-liability clause, imprinted on the storage checks, constitutes no bar to the plaintiff’s recovery. (Healy v. New York Central & H. R. R. R. Co., 153 App. Div. 516; 210 N. Y. 646; Morgan v. Wolverton, 136 App. Div. 351; 203 N. Y. 52; Madan v. Sherard, 73 N. Y. 329; Galowitz v. Magner, 208 App. Div. 6; Strong v. Long Island R. R. Co., 91 App. Div. 442; Hutchins v. Pennsylvania R. R. Co., 181 N. Y. 186; Grossman v. Dodd, 63 Hun, 324; 137 N. Y. 599; Blossom v. Dodd, 43 N. Y. 264; Lichterman v. Barrett, 95 Misc. Rep. 594, 596.)

      Ralph O. L. Fay for respondent.
    The plaintiff failed to prove the cause of action set forth in the complaint. (Hackett v. Bell Operating Co., 181 App. Div. 535; Crapo v. Rockwell, 48 Misc. Rep. 1; Roberts v. Case Hotel Co., 106 Misc. Rep. 481; Jackson v. Strong, 222 N. Y. 149; Walrath v. Hanover Fire Ins. Co., 216 N. Y. 220; South-

      wick v. First Nat. Bank, 84 N. Y. 420.) The trunks were received subject to the provisions of the written lease which exempted the defendant from any liability. (Wells v. Steam Navigation Co., 2 N. Y. 204; Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151; Healy v. N. Y. C. & H. R. R. R. Co., 153 App. Div. 516.) Defendant was a gratuitous bailee, hable only for gross negligence, which was not established. (Siegel v. Spear & Co., 234 N. Y. 479; Gottlieb v. Wallace Wall Paper Co., 156 App. Div. 150; St. Paul F. & M. Ins. Co. v. Trice Motor Corp., 203 App. Div. 218; Claflin v. Meyer, 75 N. Y. 260.)
   His cock, Ch. J.

Plaintiff brought this action to recover the value of the contents of two trunks claimed-to have been lost through the fault of the defendant. The facts which are claimed to sustain liability are as follows:

The defendant operates an apartment hotel in the city of New York. In August the plaintiff desired to rent one of the apartments but the latter was then so occupied that possession could not be given to plaintiff until October 1, and a lease was subsequently made for the term of one year commencing on the latter date. Plain'tiff had several trunks which she desired to store in the meantime and an oral agreement was made between her and the defendant under which the latter without compensation undertook to store said trunks until she should be entitled to possession of her apartment under the lease aforesaid. After this arrangement was made and after the execution of the lease the trunks were delivered to defendant and the last seen or known of two of them was that they were sent to the basement of the apartment house where there was a room for the storage of such things. When the time arrived for the plaintiff to take possession of her apartment under her lease she sent word to the defendant to deliver her trunks at such apartment but two of them were not delivered and they have never been found. Defendant gave evidence to the effect that it had adopted a system covering the storage of baggage like that which prevailed in other similar buildings and under which articles were to be stored in the room above mentioned where they were under the custody and watch at all times of reliable employees. The only explanation of the loss of the trunks approaching definiteness was a statement said to have been made to plaintiff by one of defendant’s officers in substance that the trunks must have been delivered at the apartment of some one other than the plaintiff.

The lease contained a provision that the defendant should be under no obligation to accept or receive for safekeeping any property of the tenant, but in case any such property should be accepted .or received it should be accepted, received and held entirely at the risk and hazard of the tenant and the landlord should [shall] not be liable or responsible for any damage thereto or loss or theft thereof whether arising from negligence or otherwise.” In addition to this the plaintiff received for each package delivered to defendant a check or receipt which, in addition to describing the property, contained the following: “ Read conditions on the reverse side. * * * The property enumerated on the reverse side hereof being received and stored gratuitously it is expressly agreed by the guest that the said receipt and storage shall be entirely at the risk of the owner thereof and that the hotel shall not be liable for loss or injury thereto whether caused by negligence, fire, theft or any other cause whatsoever. * * * Said hotel is further authorized to deliver said property to any person presenting said receipt without identification.”

Upon these facts, which we do not understand to be disputed, the plaintiff recovered a judgment for the alleged value of the contents of her two trunks on the ground that defendant was a gratuitous bailee and was guilty of gross negligence, which judgment has been set aside by the Appellate Division both on the law and the facts with dismissal of the complaint and, thereby, several questions are presented to us for consideration.

A majority of the court are of opinion that the complaint as a whole,' notwithstanding various inapt expressions and allegations, does allege after a fashion the cause of action upon which recovery was had at the trial and this conclusion eliminates various questions discussed by counsel.

We then come to the question whether the arrangement claimed,,to have been made by plaintiff with defendant for the storage of her trunks was one for gratuitous independent bailment as claimed by her, or was one incidental to and merged in the written lease so that the liability of the defendant is to be decided by the terms of that lease especially including the exemption clause already quoted. We think that it was the former. The simple facts are that plaintiff rented an apartment but could not obtain possession thereof for several weeks; that she had several trunks which in the meantime must be stored and that she made the arrangement with the defendant thus to store them until she could obtain possession of her apartment. Of course this arrangement for storage had a certain relation to her lease and undoubtedly never would have been made except for the fact that she had made such a lease. But even so, the situation for which the arrangement provided was entirely separate and distinct from, that which was covered by the lease. The lease covered occupation of the apartment-from a certain future date. The arrangement for storage of the trunks covered the intervening period and the necessities for it and the rights secured were entirely different than those provided for by the lease. We are unable to see how either as a matter of technical law or as a matter of common sense it can be said that when a proposed tenant has rented a house or an apartment of which he cannot secure possession for the purpose of accommodating his property for some time to come, and says in effect that he wants to make another arrangement for storing such property until he can put it in his apartment or house, the latter agreement is covered by or merged in the former one. Therefore, we conclude that defendant accepted the lost trunks without promise of compensation and as a gratuitous bailee and, that being só, we encounter the question whether plaintiff’s evidence has established any default in defendant’s obligations as such bailee which entitles her to judgment.

The obligations of defendant as gratuitous bailee are commonly described as involving the exercise of slight care and as being violated only when there has been gross negligence. The distinction between “ slight ” and reasonable ” care and between “ ordinary ” negligence and “ gross ” negligence is oftentimes shadowy and unsatisfactory. But the courts, however fortunate or otherwise they may have been in expressing that distinction, do recognize that it exists. In First Nat. Bank v. Ocean Nat. Bank (60 N. Y. 278, 295) it was said that It [gross negligence] has been defined to be the want of that ordinary diligence and care which a usually prudent man takes of his own property of the like description. * * * This definition is given by a reference to the degree of care, rather than the degree of negligence which may be the easier and more intelligible mode of defining the extent of the obligation, and the measure of duty assumed. * * * A depositor of goods or securities for safekeeping with a gratuitous bailee can only claim that diligence which a person of common sense, not a specialist or expert in a particular department, should exercise in such department.” And in Weld v. Postal Telegraph-Cable Co. (210 N. Y. 59, 72) it was said: The cases cited recognize a distinction between ordinary and gross negligence, .from which it may be said that gross negligence is the commission or omission of an act or duty owing by one person to a second party which discloses a failure to exercise slight diligence. In other words, the act or omission must be of an aggravated character as distinguished from the failure to exercise ordinary care.”

When plaintiff demanded that her trunks be delivered to her at her apartment and the defendant failed to do this, a primo, facie case was established against the latter even of gross negligence which amounted to a breach of its obligations and which called for an explanation. (Canfield v. Baltimore & Ohio R. R. Co., 93 N. Y. 532; Hasbrouck v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 363, 373, 374.) And we do not think tliat defendant made such explanation as rebutted the presumption and destroyed the prima facie case. It attempted to do this by giving evidence of a system under which trunks were placed in a room under the constant watchfulness of competent and reliable employees. As a matter of fact there is no evidence that the plaintiff’s trunks ever came within the operation of this system for they were traced no further than to show that they were taken to the basement of the apartment house. But if we assume that the trunks were placed in the proper depository under the watchfulness provided by the defendant, we do not think that this fact answers the presumption arising in favor of plaintiff on failure to deliver her trunks or satisfactorily explains their disappearance. Presumptively under this system the trunks should have been in defendant’s possession and ready for delivery when called for and it is the failure of what was to be expected that defendant is called on to explain. So far as we can see their loss could naturally be accounted for on any one of three theories. They might have been abstracted by some external means not within the control of defendant, as larceny by an outsider. But there is no suggestion of any such occurrence as tins. They might have been stolen by an employee whom the defendant had the right to regard as reliable and responsible. But again there is no suggestion of this, and the only remaining theory which occurs to us is the one that defendant voluntarily and without production of the appropriate checks delivered the trunks to some one other than the plaintiff or, as suggested by defendant’s official, sent them to the wrong apartment when plaintiff called for them and wherefrom they were abstracted instead of being returned. Unless excused by special circumstances, a voluntary delivery of the trunks to a person other than plaintiff without production of checks, which at all times remained in possession of plaintiff, or the delivery of them to a different apartment than plaintiff’s would not be a sufficient excuse for failure to deliver to plaintiff but would be affirmative evidence of a failure to exercise a very slight degree of care and would amount to gross negligence, if not willful misconduct.

The exemption clauses in the lease and on the checks respectively do not become material elements in the disposition of the case. Regarding as we do the arrangement for storage of the trunks as an agreement outside of the lease the provisions of the latter are not material. So far as concerns the exemption clause on the checks, independent of any other answer, we do not think it is to be assumed that it was the intention of the parties that it should relieve the defendant from its own gross negligence. Argument or authorities are not necessary to fortify this view for defendant’s counsel in his brief concedes its correctness.

Therefore, we think that it was error to hold that plaintiff did not -establish a cause of action and that her complaint should be dismissed. But when we come to the reversal of the judgment on the facts, the evidence so clearly sustains this disposition that we cannot and ought not to interfere with it. Independent of other objections urged by defendant to recovery for some of the articles claimed to have been in the trunks because of their unusual character and value, plaintiff’s claims in respect of the contents of the trunks and the value thereof presented questions of fact and the Appellate Division was clearly within its powers in reversing upon the facts because of what it may have regarded as plaintiff’s unsatisfactory evidence upon these issues.

Therefore we come to the, final conclusion that the judgment of the Appellate Division should be modified so as to provide for a new trial and as so modified should be affirmed, with costs to abide event.

Cardozo, Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., not voting.

Judgment accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frederick Hollender, Suing on Behalf of Himself and Other Stockholders of The American Brewing Company of Rochester, Appellant, v. Rochester Food Products Corporation, Respondent.
    Corporations — stockholders — action to dissolve corporation for suspension of its lawful business for one year — may be brought by stockholder only after Attorney- General has failed to act — reserve power of Legislature to alter charters — change from manufacturing ales and beer to manufacture of beverage containing one-half of one per cent of alcohol does not warrant conclusion that corporation has suspended its ordinary and lawful business.
    1. Pursuant to sections 101 and 102 of the General Corporation Law an action to dissolve a corporation for the reason that it has suspended its ordinary and lawful business for one year or more can only be brought by a stockholder after the Attorney-General of the State has failed to bring it and leave has been granted to the stockholder by the court.
    2. The power of the Legislature to alter from time to time charters of corporations was especially reserved by section 1 of article VIII of the Constitution of the State of New York, in force and effect in 1889 when this defendant was incorporated.
    3. Assuming that such reserve power, and amendments under it, could not go to the extent of making radical and fundamental changes in charters and in the relationship of stockholders to the corporation in which they have invested their money, a change from manufacturing ales and beer to the manufacture of a beverage containing one-half »f one per cent of alcohol is not such a radical and fundamental change xs to warrant the conclusion that the corporation has suspended its ordinary and lawful business.

      Hollender v. Rochester Food Products Corp., 215 App. Div.'751, affirmed.
    (Argued May 5, 1926;
    decided May 14, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 18, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at an Equity Term.

      William M. Stockbridge, James M. E. O’Grady and Harry Lesser for appellant.
    The resolution of August 12, 1920, although styled an alteration, is not such in reality, but is in effect the substitution of a new charter in place of one whose purpose had by the Eighteenth Amendment and the Volstead Act become unlawful. (Chicago Lumber Co. v. Garner, 132 Iowa, 282; Haynes v. State, 15 Ohio St. 455; Zabriskie v. Hackensack, 18 N. J. Eq. 178; Spriggs v. Western Union Telegraph Co., 46 Md. 67; Lord v. Equitable Life Assurance Co., 194 N. Y. 212; Witherbee v. Bowles, 201 N. Y. 427; Miner v. State of Georgia, 63 Ga. 318; State of North Dakota v. Olson, 26 N. D. 304; Nevin v. Ladue, 3 Den. 437; State of Vermont v. Brown, 37 Vt. 57; Murphy v. Inhabitants of Montclair, 39 N. J. L. 673.) The “ purposes, powers and provisions ” enumerated in the resolution of August 12, 1920, are not purposes, powers, or provisions for the carrying on of businesses “ of the same general character ” as the manufacture and sale of beer and ale. (New Haven, etc., R. Co. v. Chapman, 38 Conn. 56; Com. v. Kebert, 212 Penn. St. 289; Permell v. State,
      141 Wis. 35; State v. Oliver, 26 W. Va. 422; Matter of Pennsylvania Bottling Co., 6 Penn. Dist. 530; State v. Taylor, 55 Ohio St. 61.)

      Samuel B. Dicker for respondent.
    • The plaintiff, as a minority stockholder, does not have legal capacity to bring this action.' The plaintiff-has failed to state a cause of action because the defendant corporation has complied with section 18 of the Stock Corporation Law, in effect August 12, 1920, entitled “ alterations or extensions of business ” for the procurement of an amendment to its charter. (Matter of Penn. Bottling Co., 6 Penn. Dist. 530; Buffalo & N. Y. C. R. R. Co. v. Dudley, 14 N. Y. 336; Lord v. Equitable Life Assur. Society, 179 N. Y. 212; Union Hotel Co. v. Hersee, 79 N. Y. 454; Joslyn v. Pacific Mail Steamship Co., 13 Abb. Pr. [N. S.] 329; Looker v. Maynard, 179 U. S. 46; People ex rel. Municipal Gas Co. v. Rice, 138 N. Y. 151; Jameson v. Hartford Fire Ins. Co., 14 App. Div. 380.)
   Per Curiam.

This action has been brought to dissolve a corporation for the reason that it has suspended its ■ ordinary and lawful business for at least one year. Pursuant to sections 101 and 102 of the General Corporations Law this Idnd of an action can only be brought by a stockholder after the Attorney-General of the State has failed to bring it, and leave has been granted to the stockholder by the court. Without deciding whether or not the plaintiff is barred from maintaining this action by reason of his failure to comply with this procedure, we pass to a consideration of the main or substantial point in the case.

In 1889 defendant was incorporated in the State of New York under the name of the American Brewing Company of Rochester, N. Y., for the purpose of the manufacture and sale of beer and ale. In August of 1920 it altered its certificate of incorporation so as to include within its purposes and powers the manufacture and sale of foods and drinks and all their ingredients, including the dealing in refrigeration. The alteration of its charter was permitted by section 18, now section 35, of the Stock Corporation Law (Cons. Laws, cli. 59). The power of the Legislature to alter from time to time charters of corporations was especially reserved by article VIII of the Constitution of the State of New York, in force and effect when this company was incorporated.

For the purpose of this appeal we assume that such reserve power, and amendments under it, could not go to the extent of making radical and fundamental changes in charters and in the relationship of stockholders to the corporation in which they have invested their money. (New York Central & H. R. R. R. Co. v. Williams, 199 N. Y. 108; Union Hotel Co. v. Hersee, 79 N. Y. 454; Looker v. Maynard, 179 U. S. 46; People ex rel. Cayuga Power Corporation v. Public Service Commission, 226 N. Y. 527.)

The question, therefore, arises upon this record whether or not the changes or alterations made in August of 1920 of the charter of the American Brewing Company were fundamental. The case has been argued upon the theory that a change from manufacturing ales and beer to the manufacturing of a beverage containing one-half of one per cent of alcohol, and authorized by the Volstead Act, is such a radical and fundamental change. We do not think so. Whether the corporation could carry on the manufacture and sale of any and all kinds of food supplies we cannot and do not determine. There is nothing in the record to show what the corporation is manufacturing and selling under its extended powers or those relating to the manufacture and sale of food. There are food products of a liquid nature, the manufacture of which might not be a departure from the general character of the business of the corporation, or constitute a radical and fundamental change from its original purpose.

As it does not appear that the corporation is manufacturing anything but beverages allowed by law or products of like nature the judgment below should be affirmed, with costs.

Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane and Lehman, JJ., concur; Andrews, J., absent. Judgment affirmed.


text:
    In the Matter of the Application of Warehousemen’s Association of the Port of New York, Inc., Appellant, v. Michael Cosgrove, as Commissioner of Docks of the City of New York, Respondent.
    (Submitted January 11, 1926;
    decided January 19, 1926.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 580.)


text:
    Hamilton F. Kean et al., Copartners under the Firm Name of Kean, Taylor & Company, Respondents, v. National Surety Company, Appellant.
    (Submitted January 11, 1926;
    decided January 19, 1926.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 252.)


text:
    Oscar L. Richard et al., Copartners, Trading as C. B. Richard & Company, Appellants, v. American Union Bank, Respondent.
    (Submitted January 11, 1926;
    decided January 19, 1926.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 163.)


text:
    Louise Ellis, Respondent, v. Anna M. Kelsey et al., Appellants.
    (Argued January 11, 1926;
    decided January 19, 1926.)
    Motions to amend remittitur. (See 241 N. Y. 374.)
   Motions granted, without costs, and remittitur amended “ by strildng from the final judgment the provision which directs a recovery against the Title Guarantee and Trust Company of 13,840, with interest thereon, and providing that the decision of this court is without prejudice to any application which may be made to the Supreme Court for referee’s fees and allowances.”


text:
    Benjamin Friedland, Appellant, v. Argentor Holding Corporation, Respondent.

      Appeal — motion to dismiss granted.

      Friedland v. Argentar Holding Corp., 215 App. Div. 679, appeal dismissed.
    (Argued January 11, 1926;
    decided January 19, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 30, 1925, which reversed an order of Special Term denying a motion by the defendant for a dismissal of the complaint, and granted said motion.
    The motion was made on the ground that no appeal lay as of right to the Court of Appeals.

      Philip J. Ross and John J. Cunneen for motion.

      William M. Silverman opposed.
   Motion granted, without costs.


text:
    In the Matter of the Claim of Esther Fried et al. against Quinlan, Inc., et al., Respondents. State Industrial Board, Appellant.

      Workmen’s compensation — master and servant ■ — death of workman from injury received in altercation resulting from discussion as to manner of doing work compensable as arising out of employment.

      Fried v. Quinlan, Inc., 214 App. Div. 837, reversed.
    (Argued January 11, 1926;
    decided January 22, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 18, 1925, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing a claim for compensation for death. Decedent, a tailor, while at work in the shop of Ms employer, became engaged m a quarrel with another workman arising from a discussion as to the manner of doing certain work. During the altercation decedent received a wound in the abdomen from the result of which he died. The Appellate Division held that the accident did not arise out of the employment.

      Albert Ottihger, Attorney-General {E. C. Aiken of counsel), for appellant.

      Richard F. Weeks and Frederick Mellor for respondents.
   Order- of Appellate Division reversed and award of State Industrial Board affirmed, with costs m this court and Appellate Division on authority of Heitz v. Ruppert (218 N. Y. 148); Knocks v. Metal Packing Co. (231 N. Y. 78), and Rydeen v. Monarch Furniture Co. (240 N. Y. 295).

Concur: Cardozo, Pound, Crane and Lehman, JJ. Dissenting: His cock, Ch. J., McLaughlin and An-JJ.


text:
    In the Matter of the Claim of Yetta Sandberg against Seymour Dress Co., Inc., et al., Respondents. State Industrial Board, Appellant.

      Workmen’s Compensation Law — master and servant — award not permitted to employee for medical treatment furnished by the employer.

      Sandberg v. Seymour Dress Co., Inc., 215 App. Div. 728, affirmed.
    (Argued January 11, 1926;
    decided January 22, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the tMrd judicial department, entered December 10, 1925, modifying and affirming as modified an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant received serious injuries in the course of her employment and requested her employer to provide medical attendance which it did. Claimant having paid the bills the Industrial Board directed that she be reimbursed. The Appellate Division modified the award by strildng therefrom the amounts awarded as compensation on account of medical bills of physicians.

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

      William H. Hokhkiss for respondents.
   Order affirmed, with costs against State Industrial Board, on ground that section 13 of the Workmen’s Compensation Law does not permit an award to the employee for medical treatment, etc., furnished by the employer.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Claim of Maria H. Ciappa, Respondent, against Morris Rosenberg, Respondent, and Zurich General Accident and Liability Insurance Company, Ltd., Appellant. State Industrial Board, Respondent. In the Matter of the Claim of Nunziato Di Donato, Respondent, against Morris Rosenberg, Respondent, and Zurich General Accident and Liability Insurance Company, Ltd., Appellant. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — insurance — policy covering operations classified as “ masonry work and carpentry work ” covers death from collapse of building during alterations.

      Ciappa v. Rosenberg, 214 App. Div. 744, affirmed.
    (Argued January 11, 1926;
    decided January 22, 1926.)
    Appeal, in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 16, 1925, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Two workmen while employed on the alteration of certain buildings were killed by their collapse. The only question was as to whether the employer or the insurance carrier should pay the compensation awarded, the latter claiming that the policy did not cover the kind of work being done on the buildings at the time of their collapse. The classification of operations stated in the policy was “ Masonry work and carpentry work.”

      Edward P. Lyon and Alfred W. Andrews for appellant. John K. MacAdam and Peter M. Daly for Morris Rosenberg, respondent.

      Albert Ottinger, Attorney-General {E. C. Aiken of counsel), for State Industrial Board, respondent.
   Order.in each case affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    In the Matter of the Claim of Matilda Muller, Respondent, against Henry R. Apel, Inc., et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant ■ — basis for'computation of compensation.

      Muller v. Apel, Inc., 215 App. Div. 737, affirmed.
    (Argued January 11, 1926;
    decided January 22, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 11, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband died as a result of injuries received in an accident arising out of and in the course of his employment. At the date of the accident the rate of compensation would have been based upon a maximum wage of $100 per month. At the time of the award the limit had been raised to $150 on which latter rate the Industrial Board computed the award. Appellant contended that the rate of compensation should have been based on the maximum allowed at the date of the accident.

      Jeremiah F. Connor for appellants.

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

Concur: His cock, Ch. J., Pound, Crane and Andrews, JJ. Dissenting: Cardozo, McLaughlin and Lehman, JJ.


text:
    In the Matter of the Claim of Mason J. Aldrich, Appellant, against Edson & Company, Inc., et al., Respondents. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — employee of firm engaged in buying conditional sale contracts and collecting moneys due thereon injured from backfiring of engine of automobile which he had repossessed for failure to pay installments due — claim for compensation dismissed.

      Aldrich v. Edson & Co., Inc., 214 App. Div. 826, affirmed.
    (Submitted January 11, 1926;
    decided January 22, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 5, 1925, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and directing a dismissal of a claim for compensation for injury alleged to have been received by claimant in the course of his employment. It appeared that claimant was occasionally employed to collect the balance due on unpaid automobile notes and contracts or repossess the vehicle. His employer bought such contracts or notes and collected the moneys due thereon and its working force did merely clerical or office work. On the day of the accident claimant had repossessed a car and while cranking same the engine backfired breaking his arm.

      Frank W. Barnes for appellant. •

      Leo Waxman for Edson & Company, Inc., et al., respondents.

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

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Byrd S. Laumeier, Appellant, v. Herman H. Laumeier, Respondent.

      Former adjudication — husband, and wife — foreign divorce — action by wife to recover from former husband cost of support of their alleged child — modification of decree of divorce by insertion of finding that defendant is not father of child — complaint properly dismissed.

      Laumeier v. Laumeier, 214 App. Div. 713, affirmed.
    (Submitted January 11, 1926;
    decided January 22, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, ente'.ed May 15, 1925, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for a dismissal of the complaint. * The action was by a divorced wife against her former husband to recover money spent upon the maintenance, support and education of their alleged child. (See 237 N. Y. 357.) After the decision of this court the Circuit Court of Missouri, where the divorce was originally obtained, modified its decree so as to find that defendant was not the father of plaintiff’s child, which modification on appeal to the Supreme Court of Missouri was affirmed. In this action the complaint was dismissed on the ground that the Missouri decree of divorce between the parties, modified and affirmed as aforesaid, was and is an existing final judgment or decree of a court of competent jurisdiction rendered on the merits determining the same cause of action between the parties.

      Caruthers Ewing for appellant,

      Randolph Laughlin and Dudley Dupignae for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York ex rel. George A. Fuller Company, Appellant and Respondent, v. Walter W. Law, Jr., et al., Constituting the State Tax Commission, Respondents and Appellants.

      Tax — foreign corporations — franchise tax — determination of net , income.

      People ex rel. Fuller v. Law, 206 App. Div. 800, affirmed.
    (Argued January 12, 1926;
    decided January 22, 1926.)
    Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 18, 1924, which modified and confirmed as modified a determination of the State Tax Commission assessing a franchise tax against the relator, a foreign corporation. The relator appeals from so much of said order as - confirmed that portion of the determination of the Tax Commission which, in determining the 'amount of relator’s net income to be allocated to this State, included stocks of other corporations at their full value, instead of limiting the same to not exceeding ten per cent of the real and tangible personal property as contended for. The Tax Commission appeals from so much of said order as reversed that portion of its determination which included in the relator’s entire net income the interest on bonds held by it and which remitted the matter to the Commission, with a direction to deduct from said entire net income for the years in question the amount of interest received by the relator from the bonds owned by it.

      F. M. Sanders for relator, appellant and respondent.

      Albert Ottinger, Attorney-General (Wendell P. Brown and Claude T. Dawes of counsel), for defendants, respondents and appellants.
   Order affirmed, without costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Herman Rodgers et al., Respondents, v. Bertha Development Company, Inc., et al., Defendants. Samuel Michael, Appellant; Thomas W. Maires, Respondent.

      Sale — real property — purchaser at judicial sale of real property directed to complete purchase.

      Rodgers v. Bertha Development Co., Inc., 214 App. Div. 822, affirmed.
    (Argued January 12, 1926;
    decided January 22, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 9, 1925, which affirmed two orders of Special Term, one denying the application of the appellant herein to be relieved of his purchase of real property at a judicial sale and the other directing him to complete the purchase in accordance with the terms of sale. The purchaser had refused to complete the purchase on the ground that the premises were not tax exempt as he had been led to believe; that certain franchise taxes against the owner had not been paid and that sufficient documentary stamps had not been affixed to the deed. He also raised questions as to the allowance for interest on the first and second mortgages and as to the adjustment of rents.

      Samuel J. Levinson and Irving Levinson for appellant.

      Max Ehrlich for plaintiffs, respondents.

      Thomas W. Maires respondent in person.

      Albert Ottinger, Attorney-General (Wendell P. Brown and C. T. Dawes of counsel), for State Tax Commission.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York ex rel. City of New York, Respondent, v. David Morris et al., as Assessors of the Town of Fishkill, Appellants.
    Tax— New York city — exemption from taxation of property forming part of aqueduct system.

      People ex rel. City of New York v. Morris, 211 App. Div. 862. affirmed.
    (Argued January 12, 1926;
    decided January 22, 1926.)
    Appeal, by permission, from, an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 12, 1924, which unanimously affirmed an order of Special Term reducing an assessment levied against real property of the city of New York in the town of Fishkill on the ground that it was a part of its aqueduct system necessary to its full and complete operation and, therefore, exempt by law from taxation.

      Harry C. Barker for appellants.

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

Concur: Hiscocic, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    Max Golden, Doing Business under the Trade Name of Stafford Springs Worsted Company, Respondent, v. T. A. Shaw & Co., Appellant.

      Contract — sale ■— principal and agent •— action to recover for breach of contract of sale ■— defense that defendant executed contract as agent.

      Golden v. Shaw & Co., 212 App. Div. 872, affirmed.
    (Argued January 12, 1926;
    decided January 22, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 2, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages for breach of an alleged contract by defendant to sell and deliver to the plaintiff certain merchandise. At the time of the making of the contract, the defendant’s vice-president delivered to the plaintiff one of the defendant’s sales notes signed with the defendant’s name “ T. A. Shaw & Co.,” without qualification. This sales note bore the phrase “ Sold for Account of Woolknit Mills, Eureka, California.” The defendant which is being sued as principal, contends that it made the contract as an agent, and that the presence of the phrase above quoted in the sales note which it delivered to the plaintiff constituted an absolute notice to the plaintiff that it was acting as an agent.

      Graham Sumner and Whitney N. Seymour for appellant.

      Harold R. Medina, Leander I. Shelley and I. Gainsburg for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cajrdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    William A. Sinclair, Respondent, v. Queens Village Homes, Inc., et al., Appellants.

      Contract — services—action to recover for services in construction and sale of buildings.

      Sinclair v. Queens Village Homes, Inc., 214 App. Div. 738, affirmed.
    (Argued January 12, 1926;
    decided January 22, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 8, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover amounts alleged to be due plaintiff for services as superintendent of construction of certain buildings erected by defendants. The complaint alleged that plaintiff was to receive a weekly salary plus, as to one group of buildings, the sum of fifty dollars per house and as to another, one-half of one per cent of the selling price. The defendants denied that there was any agreement to pay on the second group anything in excess of the weekly salary.

      Harold R. Medina for appellants.

      Charles F. Edsáll and Charles H. Friedrich for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Francis Dean, Appellant, v. Emily Halliburton, as Administratrix with the Will Annexed of the Estate of William S. Halliburton, Deceased, Respondent.
    (Submitted January 18, 1926;
    decided January 22, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 354.)


text:
    Walter Binner, Appellant, v. The George Ethridge Company, Respondent. Walter Binner, Appellant, v. George Ethridge, Doing Business as The Ethridge Company, Respondent.
    (Submitted January 18, 1926;
    decided January 22, 1926.)
   Motion for reargument denied, without costs. (See 241 N. Y. 598.)


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    Margaret Maher, as Administratrix of the Estate of Philip Maher, Deceased, Respondent, v. Madison Square Garden Corporation, Appellant, Impleaded with Another.

      Negligence ■— boy drowned in swimming pool —• insufficiency of evidence to warrant inference of negligence o. part of conductor of pool.

    In an action to recover for death through the alleged negligence of defendant, where the evidence shows only that decedent, a boy fourteen years of age, was playing in a crowded swimming pool conducted by defendant on one afternoon and his dead body ' was found in another part of the pool the next morning and that death was caused by asphyxiation, no inference can be drawn that by act or omission of defendant or any of its employees the boy was placed in a position of danger which caused his death or that any greater care by defendant could have averted the accident.

      Maher v. Madison Square Garden Corp., 215 App. Div. 653, reversed.
    (Argued January 18, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 9, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.

      Walter L. Glenney and Bertrand L. Pettigrew for. appellant.

      Leon Sanders and Walter E. Godfrey for respondent.
   Per Curiam.

The evidence establishes that plaintiff’s intestate, a boy fourteén years of age, was drowned in a swhnming pool conducted for profit by the defendant. Though the swimming pool was crowded at the time, apparently no one saw the fatality. We know only that he was playing in the pool one afternoon and his dead body was found in another part of the pool the next morning, and that death was caused by asphyxiation. No inference can be drawn that by act or omission of the defendant or any of its employees the boy was placed in a position of danger which caused hi; death, or that any greater care by the defendant could have averted accident. The judgments should be reversed and complaint dismissed, with costs in all courts.

His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur; Cardozo, J., absent.

Judgments reversed.


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    Western New York Water Company, Respondent, v. City of Buffalo et al., Appellants.

      Buffalo {city of) — municipal corporations — taxpayer’s action to enjoin city from selling and supplying water outside of its boundaries.

      Western New York Water Co. v. City of Bxiffalo, 214 App. Div. 809, reversed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 21, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term. Said judgment enjoined the city of Buffalo from supplying and the Farrel Foundry and Machine Company, Inc., from receiving water from the mains of said city delivered on a vacan) piece of property within the limits of the city of Buffalo owned by the Farrel Foundry and Machine Company, . Inc., and adjoining property owned by the same company in the town of Tonawanda along the northerly line of the city of Buffalo. The action was brought by the Western New York Water Company as a taxpayer of the city of Buffalo under section 51 of the General Municipal Law.

      Frederick C. Rupp, Corporation Counsel {Frank C. Westphal of counsel),' for City of Buffalo et al., appellants.

      William S. Rann for Farrel Foundry and Machine C ompany, Inc., appellant.

      Roscoe R. Mitchell and Preston M. Albro for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts,' on authority of Western New York Water Co. v. City of Buffalo (242 N. Y. 202); no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    William J. Crittenden, Appellant, v. Samuel Barkin, Respondent.

      Equity — usury — stolen bonds pledged to defendant to secure usurious loan • — ■ action in equity to have owner of bonds adjudged borrower, the note declared void for usury and bonds returned to plaintiff cannot be maintained — loan may not be attacked by plaintiff for usury — remedy, if any, at law in action of replevin or for conversion.

      Crittenden v. Barkin, 212 App. Div. 232, affirmed.
    (Argued January 15, 1926;
    decided February 24, 1926.)
    Appeal from a judgment, entered April 1, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and granted said motion. The complaint alleged that plaintiff was the owner of certain bonds which were stolen from him and thereafter pledged to defendant as security for a loan, evidenced by a note, which was usurious nod void for the reason that defendant exacted and received a bonus in addition to the legal rate of interest and demanded that plaintiff be adjudged the borrower within the meaning of section 377 of the General Business Law; that the note be declared usurious and void, under sections 370 and 373 of the General . Business Law; that plaintiff be adjudicated to be the true and lawful owner of said bonds and entitled to the immediate possession thereof, and that the defendant be decreed and compelled to deliver up to the plaintiff the aforesaid bonds or account to him for the value of the same. The Appellate Division held that plaintiff could not attack for usury the transaction between defendant and the pledgor of the bonds and that his rights must be enforced, if at all, in an action at law in replevin or for conversion.

      Irving Albert and A. Gordon Murray for appellant.

      George 0. Redington and Joseph Schreiber for respondent.
   Judgment affirmed, with costs, on opinion of Dowling, J., below.

Concur: Hiscock, Ch. J., Pou’u, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: CarDOZO, J.


text:
    The American Sugar Refining Company, Respondent, v. Max Cohn, Appellant.

      Contract — sale — action to recover for alleged, breach of contract to purchase merchandise — sufficiency of confirmation of order — question of fact.

      American Sugar Refining Co. v. Cohn, 213 App. Div. 865, affirmed.
    (Argued January 13, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 24, 1925, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The action was to recover for an alleged breach of contract based upon an alleged refusal of defendant to accept fifty barrels of sugar alleged to have been purchased from plaintiff. The trial court dismissed the complaint at the close of the plaintiff’s case, upon the ground that plaintiff’s acceptance, or confirmation, of the order signed by the defendant was not signed by some responsible agent acting for and in behalf of the plaintiff. The Appellate Division reversed and ordered a new trial on the ground that a question of fact was presented which should have been submitted to the jury.

      Samuel S. Breslin for appellant.

      Joseph F. Abbott for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    In the Matter of the Will of Newell Cable, Deceased. Bertha W. Williams et al., Appellants; John G. More, as Executor, et al., Respondents.

      Will — revocation of provisions of codicils by subsequent codicil after-wards destroyed — destruction of revoking codicil did not revive revoked provisions — such provisions revived by subsequent codicils ratifying and confirming will.

      Matter of Cable, 213 App. Div. 512, affirmed.
    (Argued January 13, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 2, 1925, which affirmed a decree of the Delaware County Surrogate’s Court admitting certain writings to probate as the last will and testament of Newell Cable, deceased. The writing consisted of the will and eleven codicils. By another codicil, duly executed and published, but afterwards burnt by testator in the presence of witnesses, at which time he made the statement, “ I have the thing back as I want it now,” testator revoked certain provisions in codicils previously made. It was held that the burning of the codicil did not revive the revoked provisions but that such provisions were revived by a clause in subsequent codicils reading: “And I hereby ratify and confirm my said last will and testament in every respect save in so far as any part of the same is inconsistent with this codicil.”

      A. L. O’Connor for Bertha W. Williams et ah, appellants.

      Arthur E. Connor as special guardian for Kenneth Rock et al., appellants.

      A. G. Patterson and John G. More for respondents.
   Order affirmed, with costs to respondents payable out of estate; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Cardozo, J.


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    Eva Schwartz, Respondent, v. Marie Colle, Appellant.

      Negligence — landlord and tenant — injury to tenant from fall down stairs arising from defective stair covering.

      Schwartz v. Colle, 213 App. Div. 855, affirmed.
    (Submitted January 13, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1925, 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 in failing to keep the stairways of premises owned by her in a reasonably safe condition. The complaint alleged that while plaintiff, a tenant, was walking down the flight of stairs leading to the entrance to said building, her heel caught in the metal covering of the fourth step of the said stairway which was in a worn and bent condition and she was thereby caused to fall to the bottom and receive serious injuries. It was dark in the hallway at the time and when plaintiff's heel caught in the broken stair covering she lost her hold of the banister and fell.

      Moses Jaffe for appellant.

      George F. Hickey for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Pound, McLaughlin, Crane, Andrews-and Lehman, JJ. Not voting: Car-J.


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    Myra I. Gilman, Appellant, v. Metropolitan Life Insurance Company, Respondent.

      Insurance — action to recover upon policy of life insurance issued but never delivered to insured — complaint properly dismissed.

      Gilman v. Metropolitan Life Ins. Co., 213 App. Div. 839, affirmed.
    (Argued January 13, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 10, 1925, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for' judgment on the pleadings. The action was to recover upon a policy of life insurance. Early in December, 1918, plaintiff’s husband applied to an agent of defendant for insurance; he was physically examined and his application forwarded to the home office, where the policy was issued and sent to the agent, but never delivered, the insured having been taken ill on December twentieth and died December thirty-first. The application contained the following provision: “ It is further agreed that the company shall incur no liability under this application until it has been received, approved and the policy issued and delivered, and the full first premium stipulated in the policy has actually been paid to and accepted by the company during the lifetime of the life proposed.” It was alleged that the applicant paid a portion of the premium at the time of making the application and tendered the balance before he was taken ill.

      Walter A. Fullerton for appellant.

      Spencer B. Eddy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


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    Louise Doran, Respondent, v. William M. Barrett, as President of the Adams Express Company, Appellant.

      Judgment — associations — action to recover on foreign judgment against joint stock association organized under the laws of this State.

      Doran v. Barrett, 212 App. Div. 814, affirmed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 30,1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a judgment of the Court of Common Pleas of the State of Pennsylvania in favor of plaintiff entered upon a verdict in an action against the Adams Express Company, a joint stock association organized under the laws of this State. The question was whether the judgment could be enforced by suit in the courts of the State against William M. Barrett, as president of the Adams Express Company.

      B. P. Kerfoot, Charles W. Stockton and Kenneth E. Stockton for appellant.

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

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Cardozo, J.


text:
    Louis Colucci, Appellant, v. Lehigh Valley Railroad Company, Respondent.

      Negligence — railroads — trial in this Stale of action to recover for injuries received in New Jersey by being struck by train at railroad crossing — motion to dismiss complaint for failure of plaintiff to show freedom from contributory negligence — New Jersey statute providing that question of contributory negligence should be left to jury properly disregarded by court in passing upon motion.

      Colucci v. Lehigh Valley B. B. Co., 214 App. Div. 722, affirmed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment entered June 5, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, and directing a dismissal of the complaint upon the judgment at the Trial Term. The action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. While crossing the defendant’s railway tracks after dark, at a grade crossing of a highway in the State of New Jersey which was unguarded by lights, gates or flagman, he was struck by a freight car which had no light upon it and which was being pushed by an engine which was between it and other freight cars, and received the injuries complained of. The trial court dismissed the complaint at the close of plaintiff’s case on the ground that he had not shown that he was free from contributory negligence. Appellant contended the court might not determine the question as a matter of law but was bound to leave it to the jury in accordance with the law of New Jersey where the accident happened.

      Lyman A. Spalding, Edward W. Norris and Theodore H. Lord for appellant.

      Clifton P. Williamson' and Edward W. Bourne for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., McLaughlin, Crane and Lehman, JJ. Dissenting: Pound and Andrews, JJ. Not voting: Cabdozo, J.


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    Emil H. Burgens et al., Respondents, v. Herbert E. Orr et al., Appellants.

      Equity — principal and agent — contract —• accounting — injunction — action to set aside an agency and other contracts, for an accounting, to recover the' value of dirt and stone removed from real property and to enjoin defendants from acting under said contracts.

      Bergens v. Orr, 214 App. Div. 811, affirmed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 9, 1925, modifying and affirming as modified a judgment in favor of the plaintiffs entered upon a decision of the court on trial at an Equity Term. The action was to annul and cancel of record in Erie county clerk’s office a certain agency contract made by respondents and appellant Herbert E. Orr, dated August 1, 1923, and also fifty-eight alleged contracts made by said Orr with the other appellants except the Buffalo Realty Associates, Inc., after he had been discharged by the plaintiffs for alleged repeated breaches of said contract; for an accounting by said Orr and said Buffalo Realty Associates, Inc., and the return of a certain deed, searches and surveys; to obtain a judgment against said Orr for dirt and stone alleged to have been taken from the property of the plaintiffs without the consent of and for which he did not pay the plaintiffs, and to obtain an injunction against each of the defendants, enjoining them from acting or attempting to act under and by virtue of said agency contract and said contracts made by Orr as the alleged authorized agent of the plaintiffs, and exercising or attempting to exercise any right to or control over the property mentioned in said agency contract.

      E. L. Dominick and Marcus D. Boarman for appellants.

      H. H. Bacon for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Car-J.


text:
    Frederick W. Hanson, Respondent, v. McGraw-Hill Co., Inc., Appellant.

      Negligence — elevators — injury by being struck by descending elevator — contributory negligence question of fact for jury.

      Hanson v. McGraw-Hill Co., Inc., 213 App. Div. 873, affirmed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from- a judgment entered April 30, 1925, 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 directing a dismissal of the complaint and reinstated said verdict. Plaintiff, an employee of a tenant of defendant, was struck by a descending elevator in its building and received the injuries complained of. There was evidence that the doors were out of order which left an open space into the shaft through which workmen were accustomed to shout for the elevator and that at the time of the accident plaintiff was calling through such opening. The trial court dismissed the complaint on the ground of contributory negligence but the Appellate Division held that that question should have been left to the jury.

      Robert H. Charlton for appellant.

      L. H. Schleider, Leonard F. Fish and Frederic A. Behrens for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Ceane, Andbews and Lehman, JJ. Not voting: Cab-J.


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    In the Matter of David Henderson, an Infant. Margaret Henderson, Appellant; Spence Alumnæ Society, Respondent.

      Adoption — parent and child — within discretion of Supreme Court to require charitable corporation to furnish mother of child left with it for adoption, unth information as to the court in which adoption proceedings were had and the date and title thereof — improper exercise of discretion.

      Matter of Henderson, 215 App. Div. 652, affirmed.
    (Argued January 14, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1925, which reversed an order of Special Term directing the respondent, the Spence ' Alumnae Society, to furnish the petitioner, Margaret Henderson, or her attorney, with the name of the court wherein proceedings for the adoption of her child were had, the title of the proceedings and the date of the order of adoption. The Appellate Division held that while the court had power, in the exercise of a sound discretion, to require that the information be furnished, such power was improperly exercised in this case.

      Bernard II. Sandler and Ina Wollison for appellant.

      Alfred Rathheim, John Caldwell Myers and Orlando P„ Metcalf for respondent.

      Albert Ottinger, Attorney-General (George W. Davis of counsel), for State Board of Charities.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    Benjamin Goldman, Appellant, v. Henry Rubinstein, Respondent.

      Former adjudication — real estate brokers — commissions — license — judgment of Municipal Court, affirmed by Appellate Term, in action to recover commissions as real estate broker, res adjudícala in subsequent action against broker to recover penalty for so acting without license.

      Goldman v. Rubinstein, 214 App. Div. 791, affirmed.
    (Argued January 15, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1925, which reversed an order of Special Term denying a motion by defendant for a dismissal of the complaint and granting a motion- by plaintiff for judgment on the pleadings, denied the plaintiff’s said motion and granted that of defendant. Defendant recovered judgment in the Municipal Court of the City of New York against plaintiff for commissions, as real estate brokers, for procuring a purchaser for plaintiff’s drug store, which judgment was thereafter affirmed by the Appellate Term. Upon the appeal plaintiff raised the question that defendant was 'not a licensed real estate broker. Plaintiff has brought this action under section 442-f of the Real Property Law to recover from defendant the penalty provided for acting as real estate broker without a license. The Appellate Division held that the judgment in the former action was res adjudicata of' this and directed a dismissal of the complaint.

      Sim C. Binder and Nathaniel H. Kramer for appellant.

      Reuben Dorfman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: CarDOZO, J.


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    In the Matter of the Proceedings of Immaculata Capozzi, Individually and as Executrix of Vincenzo Capozzi, Deceased, Appellant, against Harrison G. Hunt et al., as Executors of Daniel Hunt, Deceased, Respondents.

      Decedent’s estate —• lease — covenants —• claim against estate for breach of covenant of quiet enjoyment contained in lease made by decedent of lands held by him as life tenant — eviction of tenants by remaindermen ■— dismissal of claim on ground tenants had notice of extent of decedent’s interest in lands.

      Matter of Hunt, 211 App. Div. 801, affirmed.
    (Submitted January 15, 1926,
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 21, 1924, which affirmed a decree of the Westchester County Surrogate’s Court disallowing the claim of the petitioner herein against the estate of Daniel Hunt, deceased, based upon an alleged breach of covenant of quiet enjoyment contained in a lease of real property made by decedent to claimant and her husband, since deceased. The lessor had only a life estate in the demised premises and upon his death, during the term of th? lease, the remaindermen evicted the tenants. The surrogate held “ that the lessees had actual notice at the time of the execution of the lease of May, 1913, that Daniel Hunt had only a life estate or tenancy in the leased premises and this notice is presumed to continue and there was no fraud on the part of the lessor or withholding of information or knowledge that misled the lessees, and there, was no payment of rent in advance under said lease by said lessees, and in view of the foregoing there is no liability for compensatory damages.”

      Benjamin I. Taylor for appellant.

      William Baruch, Henry K. Heyman and Thomas Holden, Jr., for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Car-J.


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    Cora B. Luce, as Administratrix of the Estate of Walter M. Luce, Deceased, Appellant, v. New York, Chicago and St. Louis Railroad Company, Respondent.

      Former adjudication — negligence — railroads ■— dismissal of complaint in action under Federal Employers’ Liability Act to recover for death alleged to have been caused by violation of Federal Boiler Inspection Act — second action upon theory of negligence of fellow-servants and failure to promulgate rules barred.

      Luce v. N. Y. C. & St. L. B. B. Co., 213 App. Div. 374, affirmed.
    (Submitted January 15, 1926;
    decided February 24, 1926.)
    Appeal from a judgment entered November 9, 1925, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed an order of Special Term denying a motion by defendant for a dismissal of the complaint and granted said motion on the ground that there is an existing final judgment of the Supreme Court, rendered on the merits determining the same cause of action between the parties herein. The complaint in the first cause of action, brought under the Federal Employers’ Liability Act, to recover for the death of plaintiff’s intestate alleged a violation of the Federal Boiler Inspection Act and plaintiff recovered a verdict, but on appeal to the Appellate Division the judgment was reversed and the complaint dismissed on the ground that there was no proof of a violation of the Boiler Inspection Act. (209 App. Div. 728; affd., 239 N. Y. 601.) The complaint in the present action, also brought under the Federal Employers’ Liability Act, omits the allegation of a violation of the Boiler Inspection Act and seeks to recover upon the theory of negligence of fellow-servants and failure to promulgate rules. Hamilton Ward for appellant.

      Evan Hollister for respondent.
   Judgment affirmed, with costs; no opinion:

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Not voting: Car-J.


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    Guiseppe Fusco, Respondent, v. Maria Fusco, Appellant.

      Title — stocks and stockholders —■ action to have it adjudged that plaintiff was the owner of certain stock in possession of defendant and for a direction that she deliver same to plaintiff.

      Fusco v. Fusco, 214 App. Div. 784, affirmed.
    (Argued January 18, 1926,
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 20, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to obtain a decree that plaintiff was the owner of all of the stock of the Capello-Fusco Holding Co., Inc., and directing defendant to deliver the same into his possession. The complaint alleged that the plaintiff in June, 1920, organized the said corporation in contemplation of a trip to Italy, for the purpose of managing and controlling his real estate during his absence; that he transferred twenty-four shares to Carlo Cappello and one share to Guiseppe Mattucci therein mentioned and, for the purpose of retaining the balance of power in the affairs of the said corporation, the remaining twenty-five shares to his wife, upon the understanding and agreement that all of said parties were to hold the same in trust for the use and benefit of the plaintiff, and solely for the purpose of managing and supervising the said property during his absence and that upon his return, they would, on demand, return said stock to the plaintiff; that the plaintiff did not make his contemplated trip to Europe, and that thereafter the said Carlo Cappello and Guiseppe Mattucci retransferred and delivered their respective shares of stock to the plaintiff, but that the defendant refused after due demand to return such stock. The answer denied that the stock was given to the defendant upon the understanding or agreement alleged in the complaint, and alleged in substance that the defendant is the actual owner of the said stock, and that the same was given to her for a valuable consideration.

      Samuel Wechsler and Gandolfo A. Sellaro for appellant.

      Frank J. Rinaldi for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    Harry Walters, Respondent, v. Clairemont Sterilized Egg Company et al., Defendants, and Willis G. Howard, Appellant.

      Pleading — sufficiency of complaint in action to recover for unlawful interference with business.

      Walters v. Clairemont Sterlized Egg Co., 215 App. Div. 680, affirmed.
    (Argued January 8, 1926,
    decided February 24, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 30, 1925, which affirmed an order of Special Term denying a motion by defendant for judgment on the pleadings. The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action against said defendant? ” The action was to recover for an alleged unlawful interference with plaintiff’s business. The complaint alleged that defendant, appellant, canvassed the egg trade, including the customers and prospective customers of the plaintiff and threatened such dealers and customers and prospective customers that if they entered into any agreement with the plaintiff to process eggs for them or had any business dealings or relations with the plaintiff whatsoever, the defendants would institute legal action against such dealers and enjoin the plaintiff from carrying out any such contracts and from sterilizing or processing any eggs for such dealers and claimed and represented to such dealers that the plaintiff was infringing a patent or patents owned by the defendant, Clairemont Sterilized Egg Company, and falsely and wrongfully stated and represented to such dealers that the process employed by the plaintiff was of no value and that by its use the eggs so treated would be inevitably spoiled, and that the liquid so used by the plaintiff in such process was injurious to the eggs and would spoil them, all of which statements and representations, to defendant’s knowledge, were false and untrue.

      Edward E. Hoenig for appellant.

      Benjamin E. Messier for respondent.
   ' Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    Daniel V. Arthur, Respondent, v. Harry H. Frazee, Appellant.

      J oint ownership — evidence — action to recover proportionate share of net profits — parol evidence as to terms of contract — conclusions.

      Arthur v. Frazee, 214 App. Div. 776, affirmed.
    (Argued January 18, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover a proportion of' the net profits of a certain play of which, it was alleged, plaintiff and defendant were joint owners. The only questions on appeal were whether the admission of certain testimony given by the plaintiff, respondent, violated the parol evidence rule, and whether certain testimony given by the plaintiff was testimony as to a conclusion of fact and usurped the function of the jury.

      Jacob I. Goodstein for appellant.

      Benjamin Pepper and M. L. Malevinsky for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., McLaughlin, Crane and Andrews, JJ. Dissenting: Pound and Lehman, JJ. Absent: J.


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    In the Matter of the Claim of Anthony Swihura against Alexander Horowitz, Respondent. State Industrial Board, Appellant.

      Workmen’s compensation— master and servant — ■ claim dismissed when at time of accident claimant was engaged in an illegal employment.

      Swihura v. Horowitz, 215 App. Div. 740, affirmed.
    (Argued January 19, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered December 10, 1925, reversing an award of the State Industrial Board, made under the Workmen’s Compensation Law, and dismissing the claim. Claimant testified that he was employed by defendant to deliver barrels and cases containing liquor and beer and that while riding in an automobile in the performance of his duties he was injured. The Appellate Division dismissed the claim on the ground that it appeared by claimant’s own testimony that at the time of the accident he was engaged in an illegal employment.

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

      Sydney D. Robins and Samuel W. Levine for respondent.
   Order affirmed, with costs against State Industrial Board; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    Elizabeth T. Mace, as Administratrix of the Estate of Francis J. Mace, Deceased, Respondent, v. Charles Moscarelli, Appellant.

      Negligence — motor vehicles — death of mounted police officer from collision with motor truck.

      Mace v. Moscarelli, 214 App. Div. 821, affirmed.
    (Argued January 19, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 25, 1925, 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. Plaintiff’s intestate, a New York city mounted police officer, was, at the time of the accident, riding his horse in a northerly direction along the easterly side of Flatbush avenue, in the borough of Brooklyn, approaching Kings Highway, which intersects Flatbush avenue practically at right angles. At the same time defendant’s five-ton Mack truck was proceeding in an easterly direction along Kings Highway, approaching and crossing Flatbush avenue. The truck was about twenty feet long and weighed, with its load, about ten tons. Two trolley cars were standing in Flatbush avenue, alongside each other, their north ends being just southerly of the southerly crosswalk across the avenue at Kings Highway. Defendant’s track had crossed both tracks in Flatbush avenue and was entering upon the highway on the easterly side of the avenue, when the horse ridden by plaintiff’s intestate, traveling at a pretty fast pace, struck the side of the truck at a point just at the rear of the driver’s cab, or about midway between the front and rear wheels. Horse and rider went down, the officer being precipitated against the side of the truck with considerable force and receiving injuries resulting in death.

      Alfred W. Meldon and Joseph F. Crater for appellant.

      George W. Riley and William Dewar, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Cb. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    Lizzie Ottman, as Executrix of Jacob Allter, Deceased, Appellant, v. Herbert D. Allter, Respondent.

      Executors-and administrators — decedent’s estate — absolute'gift by will of store property, including book accounts, bills receivable and notes — executrix may not maintain action on behalf of estate to recover for goods alleged to have been sold at store and delivered at least three years after testator’s death.

      Ottman v. Allter, 212 App. Div. 80, affirmed.
    (Argued January 19, 1926;
    decided February 24, 1926.)
    Appeal from a judgment, entered March 17, 1925, ' 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 decision of the court at a Trial Term without a jury and directing a dismissal of the complaint; also appeal from a judgment entered March 17, 1925, 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 to vacate the judgment in favor of plaintiff and directed a dismissal of the complaint. Plaintiff, as surviving executrix of the will of Jacob Allter, deceased, brought this action against defendant to recover for groceries and provisions alleged to have been sold and delivered to him by the estate of said deceased, and moneys loaned him by said estate between the years 1907 and 1923. Testator died in 1904 and by his will gave his entire store property, real and personal, including book accounts, bills receivable and notes, one-half to his brother and the other half to his daughter and son. The Appellate Division held that the executors of the will of Jacob Allter had no interest in the store property and business after the debts and obligations of Jacob Allter were paid. The profits from the grocery business did not belong to the estate nor were the debts of that business debts of the estate.

      Charles E. Hardies and William J. Crangle for appellant.

      Edward R. Hall for respondent.
   Judgment affirmed, with costs; appeal from order dismissed, with costs; no opinion.

Concur: His cock, Ch. J.; Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    In the Matter of the Accounting of Harriet L. Bardin, as Executrix of James H. Bardin, Deceased. Mabel A. Stone, Appellant; Harriet L. Bardin, as Executrix, Respondent.

      Decedent’s estate — contract — claim for services rendered testator on alleged promise to leave claimant his property — allowed for value of services performed within six years of death.

      Matter of Bardin, 213 App. Div. 843, affirmed.
    (Argued January 19, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 11, 1925, modifying and affirming as modified a decree of the Washington County Surrogate’s Court which allowed a claim against the estate of James H. Bardin, deceased, for services alleged to have been rendered decedent in his lifetime, “ for which said deceased promised to pay by leaving to claimant by will his property.” The Appellate Division held that the only agreement made by testator was that he would will his property to claimant on condition that she remained with him; that in the year 1911 she married and left his home and did not remain with him; that he did not fail to keep his agreement; that within six years prior to his death claimant performed services for eighty weeks, the reasonable value of which was $240.

      Erskine C. Rogers and W. E. Young for appellant.

      Walter A. Chambers for respondent.
   Order affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J,


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    George F. Hinrichs, Inc., Appellant, v. The City of New York et al., Respondents.

      New York city — municipal corporations — authority of commissioner of public markets in city of New York to fix rentals for stands in public market.

      Hinrichs, Inc., v. City of New York, 212 App. Div. 816, affirmed.
    (Argued January 20, 1926;
    decided February 24, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 28, 1925, which unanimously affirmed a judgment in favor of defendants entered upon orders of Special Term granting motions by defendants for judgment upon the pleadings. Plaintiff, under permit from the commissioner of public markets, was in possession of stands in West Washington Market, a public market owned and operated by the city of New York. In July, 1919, the commissioner of public markets, without approval by the board of estimate and apportionment, increased the rental for these stands as well as that for the stands occupied by all other tenants of that market. Plaintiff paid the increased rental and sued to recover the sum so paid on the ground that approval of such increases by the board of estimate and apportionment was required by law and that the commissioner of public markets had no authority to fix rentals.

      Bertram Boardman and Cyrus C. Miller for appellant.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, John Lehman and Willard S. Allen of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane and Lehman, JJ. Absent: Cardozo, J.


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    Alhambra Amusement Company, Inc., Appellant, v. Associated First National Pictures, Inc., Respondent.

      Contract — Frauds {Statute of) — action to recover for breach of contract — defense of Statute of Frauds.

      Alhambra Am. Co., Inc., v. Associated F. Nat. Pictures, Inc., 207 App. Div. 550, affirmed.
    (Argued January 20, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 2, 1924, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.' The action was to recover damages for breach of a contract alleged to have been made between the plaintiff and defendant for the delivery of motion picture films to the DeLuxe Theatre, Utica, for a period of more than one year. The principal defense was that the contract was void under the Statute of Frauds on the ground that it had not been signed by the defendant.

      Willard R. Pratt and George W. Alger for appellant.

      James F. Hubbell for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    In the Matter of the Accounting of Ralph E. Barkley, as Executor of the Estate of Abbie M. F. Andrews, Deceased. May M. Johnson, Appellant; Bessie F. Sturtevant et al., Respondents.

      Will — residuary estate to “ nephews and nieces ”— grandniece, daughter of deceased niece, not included — award of costs, not appealed from, improperly stricken out by Appellate Division.

      Matter of Andrews {Barkley), 213 App. Div. 479, modified.
    (Argued January 21, 1926;
    decided February 24, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 31, 1925, modifying and affirming as modified a decree of the Washington County Surrogate’s Court construing the will of Abbie M. F. Andrews, deceased. The fourth clause of said will read as follows: “ With the exception of my nephew George U. Gates, I give and bequeath all the rest, residue and remainder of all my property and estate to such of my nephews and nieces as survive me, to be divided equally between them share and share alike.” The surrogate held that a grandniece, daughter of a deceased niece, was included as one of the class constituting the residuary legatees. The Appellate Division held that only actual “nephews” and “ nieces, ” in the ordinary meaning of the terms, were included, and modified the decree by striking out the name of the grandniece as a residuary legatee as well as her award of costs, although no appeal had been taken from such award.

      Harry Cook and Newton B. Van Derzee for appellant.

      J. B. McCormick for Ralph E. Barkley, as executor.

      Ernest H. Wills and John B. Watts for respondents.
   Order of Appellate Division modified by restoring allowance of costs to May M. Johnson and as so modified affirmed, without costs; no opinion.

Concur: His cook, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    Granville A. Beals, Doing Business as the Greenwich Mills, Appellant, v. Michael Hirsch, Respondent.

      Contract — sale — tender ■— contract for manufacture and sale of goods — refusal by purchaser to accept goods proper where manufacturer denies reasonable opportunity to examine.

      Beals v. Hirsch, 214 App. Div. 86, affirmed.
    (Argued January 21, 1926;
    decided February 24, 1926.)
    Appeal from a judgment, entered July 10, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover for an alleged breach of contract whereby plaintiff agreed to manufacture and defendant agreed to purchase a certain quantity of cloth. The complaint alleged that within the time fixed for delivery plaintiff manufactured and tendered to defendant a portion of the goods contracted for but plaintiff refused to accept the same. The defense was that plaintiff refused to accord defendant a reasonable opportunity to examine the goods before acceptance.

      Joseph P. Segal and I. Gainsburg for appellant.

      William L. Ransom and Colley E.. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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

      Crimes — extortion and misconduct as attorney ■ — ■ judgment of conviction affirmed.

      People v. Larkin, 213 App. Div. 845, affirmed.
    (Argued January 21, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 13, 1925, which affirmed a judgment of the Chautauqua County Court convicting the defendant of the crimes of attempted extortion and misconduct as attorney.

      John L. Heider and Thomas H. Larkin, in person, for appellant.

      Glenn W. Woodin for respondent.
   Judgment affirmed; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    The Brooklyn City Railroad Company, Respondent, v. The Kings County Trust Company, Appellant.

      Corporations — railroads — mortgage — provision in mortgage to secure bonds that real estate not necessary to railroad may be released from lien of mortgage provided other property equal in value has been acquired — railroad may require release upon showing land not necessary and that it had acquired additional personal property equal in value — not necessary to show acquisition of other real property.

      Brooklyn City R. R. Co. v. Kings Co. Trust Co., 214 App. Div. 506, affirmed.
    (Argued January 22, 1926;
    decided February 24, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 2, 1925, in favor of plaintiff upon the submission of a controversy on an agreed statement of facts pursuant to section 546 of the Civil Practice Act. Plaintiff, to secure its bonds, had executed to defendant a mortgage covering all. of its property which contained the following clause: “Article 4. The said trustee shall, upon the written request of the party of the first part, release from the lien of this mortgage to the party of the first part, or to the persons or corporations designated by it, any real estate and the buildings and improvements thereon, when the use of the real estate to be released shall not be necessary to the maintenance ■ or operation of said railroad or the exercise of said franchises, provided that property equal in value to that which said trustee shall be requested to release shall have been acquired by the party of the first part and made subject to this mortgage as herein provided.” Plaintiff desiring to sell a parcel of land covered by the mortgage has requested that defendant release said parcel from the hen, it being conceded that the premises in question are not necessary to the operation of the railroad or the exercise of its franchises, and that plaintiff has acquired since the execution of the mortgage other personal property appraised at many times the value of the land in question. Defendant contends that it is not empowered to release real property under the provision quoted unless plaintiff has acquired other real property of equal value to that sought to be released.

      Allen S. Wrenn for appellant.

      William N. Dykman and Sigourney B. Olney for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    Benjamin Friedland, Appellant, v. Argentor Holding Corporation, Respondent.

      Vendor and purchase1 sale — contract — money deposited by purchaser on execution of contract of sale of real property — provision in contract for forfeiture in case of default and for extension of time on payment of additional sum — payment of amount required for extension — on final default action to recover additional amount paid cannot be maintained.

      Friedland v. Argentor Holding Corp., 215 App. Div. 679, affirmed.
    (Argued January 22, 1926;
    decided March 2, 1926.)
    Appeal from a judgment, entered January 4, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion by defendant for a dismissal of the complaint on the ground it failed to state facts sufficient to constitute a cause of action and granted said motion. The complaint alleged that plaintiff’s assignors agreed in writing to purchase real property from defendant and paid $1,000 on signing the contract which contained the following clauses:
    “It is hereby understood and agreed that time is of the essence of the contract and if the purchaser does not take the title on the date hereinafter agreed that this contract shall then become cancelled and the deposit shall be retained by the seller as liquidated damages.
    “It is further understood and agreed that the purchaser may obtain an extension of time within which to take title to June 30, 1924, upon further payment of $4,000 additional to be applied on account of the purchase price.”
    Thereafter the assignor paid the $4,000 required for an extension of time, and at the end thereof, being unable to complete the purchase, so notified defendant and demanded the repayment of the $4,000, which being refused, the claim was assigned to plaintiff who brings this action to recover said amount.

      I. Maurice Wormser and William M. Silverman for appellant.

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

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.


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    In the Matter of the Claim of Mrs. Anthony Weiss, Respondent, against Wickwire Spencer Steel Corporation et al., Appellants.

      Appeal — unanimous affirmance — appeal without permission dismissed.

      Weiss v. Wickwire Spencer Steel Corp., 214 App. Div. 845, appeal dismissed.
    (Argued February 23, 1926;
    decided March 2, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 15, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law.
    The motion was made upon the grounds that an application for leave to appeal had previously been denied and that an appeal could not be taken as of right.

      Albert Ottinger, AttorneyrGeneral (E. C. Aiken of counsel), for motion.

      Ansley W. Sawyer, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.